KAJENJERE CASE 0001

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB REGISTRY) AT DAR ES SALAAM CIVIL CASE NO. 4922 OF 2024 THE HON. ATrORNEY GENERAL ......................................... 1ST PLAINTIFF THE BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND .................................................... 2ND PLAINTIFF VERSUS KA]ENJERE TRADING COMPANY LIMITED ......................„....... DEFENDANT SUMMARY JUDGMENT Date of Last Order: 17.10.2024 Date of Judgment: 19.11.2024 NGUNYALE, J. Tbe ATTORNEY GENERAL a necessary party and BOARD OF TRUSTEES OF THE NATIONAL SOCIAL SECURITY FUND (the 2nd plaintiff) filed a summary suit against KAJENJERE TRADING COMPANY LIMITED (the defendant) seeking various reliefs to be known later. The defendant was registered as a contributing member employer of the second plaintiff in accordance with the law establishing the second plaintiff and she was issued with a Member Certificate W Registration No. 1012312 to that effect. In accordance with the law the defendant is required in each month to make its own compulsory contribution and that of its employees at the rate of 10% and 10% respectively making a total of 20% of the (member) employees’ wage. The defendant has failed to remit those funds to the second plaintiff for some of the months and delayed remittance in some of the months which attracts imposition of the penalty. The suit against the defendant was instituted by a plaint made under Order XXXV of the Civil Procedure Code [Cap. 33, R.E 2019] (the CPC) read together with section 74A (2) of the National Social Security Fund Act [Cap. 50, R.E. 2018]. In terms of the said plaint, the plaintiff’s claims against the defendant for payment of TZS 159,838,838/=, being unremitted members contributions plus accumulated penalties thereon also payment on interest and litigation costs. Pursuant to Order XXXV, Rule 2 of the Civil Procedure Code, the defendant was required to apply for leave to defend the suit within twenty-one (21) days from the date of service of the summary plaint. He was dully served but she could not show appearance and seek leave to defend according to law. In the event the leave to file defence was not sought and granted, the plaintiff is entitled to judgment and decree on the claimed sum. On 17th October 2024 the matter was called for mention or necessary orders of the court. The plaintiffs were represented by Mr. Danstan Lubangwa learned State Attorney. Mr. Lubangwa prayed the court to issue summary judgment in favour of the plaintiff because they did not received any service from the defendant seeking leave to defend the substance of the matter in the summary procedure. The court accepted the prayer and decided to fix a date for pronouncing summary judgment. The summary judgment was set to be pronounced on 12th November 2024. In the course of preparing judgment the court noted a defect in the plaint filed by the plaintiff. Though the system file established that the defendant in Civil Case No. 4922 of 2024 was Kajenjere Trading Company Limited but the plaint in the digital file cited the defendant as Yukos Enterprises (E. A) Limited. In order to make the records clear, the court decided to temporarily vacate the order of judgment and re open the proceedings for the plaintiffs to address the court about the anomaly in the name of the defendant and the content of the plaint. Mr. Kenedy Kasongwa learned State Attorney appeared for the plaintiffs and prayed the court to grant M, them leave to file a proper plaint because the mistake is not fatal. It was his view that the service was accurately issued against the proper defendant Kajengere Trading Company Limited and the proof of service was accordingly filed in court establishing that the proper party was served. The court considered the nature of the defect and was of the firm view that the mistake was not fatal taking reference to the fact that service was done against the proper defendant with a proper plaint. Tbe stance suggested by the plaintiff was accepted by the court because proof of service established that the proper defendant was served with a proper plaint. Ure court fully subscribed to that stance which manifestly uphold substantive justice covered in the present era of the overriding objective principles, hence the present summary judgment. Consequently, a summary judgment and decree are hereby entered in favour of the plaintiff against the defendant as follows: (i) ne defendant is ordered to pay the 2-d plaintiff a sum of TZS 159,838,838 being unremitted members’ contributions plus accumulated penalties thereon. (ii) The defendant shall pay interest on outstanding contributions and penalties at the rate of 7% per annum from December 2019 to the date of judgment. (iii) Interest on decretal sum at the prescribed court rate of 7% per annum from the date of judgment until the same is paid in full. (iv) Costs of the suit. It is so ordered. Dated at Dar es Salaam this 19th day of November, 2024. fn'. JUDGE Summary judgment pronounced this 19th day of November, 2024 in presence of Mr. Kenedy Kusongwa learned State Attorney for the plaintiffs. mR N lgun JUDGE 5