20200930 TZHC Dar es Salaam

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF DAR ES SALAAM AT DAR ES SALAAM CIVIL CASE NO. 187 OF 2017 THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND----------------------------- PLAINTIFF VERSUS TANZANIA TRADITIONAL ENERGY AND DEVELOPMENT ORGANIZATION------------------- DEFENDANT JUDGEMENT Date of Last Order: 30.09.2020 Date of Ruling: 30.09.2020 Ebrahim, J.: National Social Security Fund (NSSF) has instituted a summary suit under Order XXXV of the Civil Procedure, Cap 33 RE 2002 read together with section 18(1) of the National Social Security Fund Act, Cap · 50 RE 2015. The Plaintiff claims against the Defendant payment of . arrears of statutory monthly social security contributions in respect of the 1 : defendant's employees registered with NSSF amounting to Tshs. 353,288,000/- (Say Tanzania Shillings Three Hundred Fifty-Three Million Two Hundred Eighty-Eight Thousand only). The said amount covers a period between June 2011 to December 2015. The Plaintiff is also claiming statutory penalty at the compound interest rate of 5% for each month of delay; and interest at court rate from the date of judgement to the date of full payment of the adjudged sum. Counsel for the Plaintiff, Mr. Kennedy Kasongwa submitted before the court that they could not reach settlement with the Defendant on the suggested proposal for payment in settling the debt. Therefore, the Defendant has no leave to defend the suit following her failure to adhere to the court order of depositing cash sum as a condition for such leave. He thus prayed for summary judgement with costs in terms of Order XXXV Rule 2 (2) of .. the Civil Procedure Code on the principle of the law that since the Defendant has not been granted leave, allegations are deemed to be admitted. Indeed, Order XXXV, Rule 2, Sub - Rule (1) of the Civil Procedure Code, Cap 33 RE 2019 provides for a manner in which suits under summary procedure are to be instituted. The same law provides further for 2 the prerequisite for the Defendant who wishes to defend the suit to seek leave from the court. Again, Sub-Rule (2) of Rule 2 of Order XXXV caters for the consequences of default of the defendant in obtaining such leave or of his appearance. The consequences being that the allegations in the plaint shall be deemed to be admitted, and the plaintiff shall be entitled, in the case like instant one, to a decree for any sum not exceeding the sum mentioned in the summons. The plaintiff shall also be entitled to the interest at the rate specified (if any) and such sum for costs as may be prescribed. As records would reveal, the Defendant on 14.02.2019 informed the court of the filing of Miscellaneous Civil Application No. 794 of 2017 praying for leave to defend. The court accordingly determined and on 30.05.2019, Hon Ngwala, J (as she then was) ordered that unless Tshs. 197,522,000/ is _deposited to the Court by the Defendant, no leave is granted. Up to the time when this came for hearing, the Defendant failed to deposit the · ordered amount. Consequently, she has no leave to defend the suit. _It is on that background and as per the law cited earlier; this court enters judgement in favour of the Plaintiff in terms of Order XXXV Rule 2 (2) of -· the Cavil Procedure Code, Cap 33 RE 2019 and orders as follows: 3 1. That, the Defendant shall pay the plaintiff Tshs. 353,288,000/- (Say Tanzania Shillings Three Hundred Fifty-Three Million Two Hundred Eighty-Eight Thousand only) being the grand total of the outstanding social security contributions for the period covering June 2011 to December 2015. 2. The adjudged sum at (1) above to carry 12% interest per annum from the date of filing the suit to the date of judgement. 3. Interest on the decretal sum at the court rate of 7% per annum from the date of judgement to the date of payment in full; and 4. The Plaintiff shall also have her costs. It is accordingly ordered Judge · · · Dar Es Salaam 30.09.2020 4