MISC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB REGISTRY AT ARUSHA MISC. CIVIL APPLICATION NO. 3448 OF 2023 [c/f Civil Case No. 2 of 2024, High Court at Arusha] THE REGISTERED BOARD OF TRUSTEES EVANGELICAL LUTHERAN CHURCH OF TANZANIA NORTHERN CENTRAL DIOCES ARUSHA T/A ARUSHA LUTHERAN MEDICAL CENTRE...................................................................... APPLICANT VERSUS THE BOARD OF TRUSTEE OF THE NATIONAL SOCIAL SECURITY FUND.......... 1st r e s p o n d e n t THE ATTORNEY GEN ERAL.......................... 2ND RESPONDENT RULING 28/05/2024 & 25/06/2024 NDUMBARO, J The applicant has brought this application and moved this court under the provision of Order XXXV Rule 2(2)3(l)(a)(b), Section 68(e) and Section 95 of the Civil Procedure Code Cap 33 R.E 2019. The application was made under chamber summons supported with an affidavit sworn by the first applicant John Tanaki who is principle officer of the applicant in this application, seeking leave to defend the summary Civil Case No. 2 of 2024, High Court at Arusha instituted by respondents. The affidavit narrated reasons for this application that there are facts need to be defended among others the respondent here in who is plaintiff in civil case No. 2 of 2024 sued wrong person; the year on which respondent claiming that applicant was registered as contributing member, the applicant was yet to be registered; the respondent claiming 20% of month payment but did not state what amount 20% is claiming; the respondent claiming the applicant failure to remit contribution of 48 months for various period from 2009 to 2023 amounted 4,578.004.334, the applicant said the amount claimed plaintiff is incorrect, and claimed to pay the plaintiff TZS 3,094,005,528.66 and the last instalment was made on 5 January 2024 and the copy of the said payment was attached as annex ELCT-NDC -4 to form part of his affidavit, therefore claimed that the total amount which is 10,519,258,858,-14 claimed by applicant to wit principle sum and interest is exaggerated. Stated further the civil case No. 2 2024 2 was filed before lapse of 30 days' notice on which he received on 8th January, but to their surprise, the respondents instituted a summary suit on 23 January 2024. It is his believe that, there are triable issues to argue in the main case hence this application; and made prayer that, the reasons adduced by the applicant in this application to be considered by this court to defend the summary suit. In the main case under the summary suit, the plaintiff claimed breach of statutory duty of remitting 20 % of NSSF members contributions for period of 48 covering various period from August 2019 to November 2023 amounted to 4,578,044,334 being principal, interest and accumulated from the principal sum of 5,941,214,524.41, need to be paid by applicant who is defendant in the main suit under summery procedure. The plaintiff demanded performance of the said statutory contributions by defendant several time but failed to heed the plaintiff statutory demand. The respondent defaulted on the payment on the scheduled statutory contribution, claimed to pay 3,094,005,528.66 and the last payment was made on 5 January 2024 and the copy of the said payment was attached as annex ELCT-NDC -4 to form part of his affidavit. The plaintiff instituted the summary suit and prayed for a declaration that the 3 respondent be ordered to pay 10,519,258,858.41 Tanzania Shillings Ten Billion, five hundred nineteen million, two hundred and fifty-eight, and forty-one cents being un remitted membership contribution plus accumulated penalties payable to the plaintiff by the defendant. The respondent opposed the application by a counter affidavit sworn by Furahisha Ernest Wabanu that, the applicant did not provide sufficient reasons to warrant this court to grant leave to defend the summary suit and defendant is proper person because applicant is affiliation member of Board of Trustee of Evangelical Lutheran Church of Tanzania North Central Diocese Arusha. Once the institution is established it acquire legal personality. The amount was not execrated. The respondent paid only 2,755,144,670.78 from January 2019 to January 2024. Parties agreed to argue their case by way of written submission, the applicant's submission was drawn by Advocate Philip Philemon Mushi and the respondent enjoyed the service of State Attorney Frank Jacob Iddi. Mr Mushi on his submission prayed that the affidavit of the applicant be adopted and form part of the submission. He went on to submit that, the applicants are defendants in Civil Case No. 2 of 2024 which was brought under summary suit by respondents claiming TZS 10,519,258,858.41 being the payment of statutory contributions and penalty thereof from august 2019 to November 2023. Due to failure to pay the said statutory amount, the defendant instituted this suit to recover the amount under summery. Because the applicant has no automatic right to file a defence in summary suit hence this application. The applicants did not dispute that from January 2019 to August 2023 was required to remit statutory contribution, however disputed on the amount required to remit. The applicant claimed to pay 3,094,005,528.66 and the last instalment was on January 2024, while the defendant said is claiming that, the amount paid by applicant was only 2,755,144,670.78 from January 2019 to January 2024. The applicants intend to defend this suit due to the fact that, there is triable issues between the parties to be determined by this court, and the applicants therefore prayed that this this application be granted with cost and any other relief this court deems fit to grant. In reply, Mr Frank Jacob Iddi State Attorney prayed to adopt a counter affidavit to form part of this submission. He further argued that the applicant infringed statutory right as per Section 12 and 14 of the National Social Security Fund Act Cap 50 Of 2018 on statutory contribution by employer and payment of contribution. The applicant does not dispute that he owes money to the respondent for un remitted member contributions as well as penalties from 2019 to 2024. However, faulted on amount claimed to pay which is 3,094,005,528.66, said the applicant only paid 2,7,55,144,670.78 to January 2024. The applicant did not demonstrate sufficient fact to be granted leave to defend the case. In support of argument cited a case of Resolution Insurance Company Limited Vs Hon Attorney General and Board of Trustee of National Social Security Fund Misc. Civil Application No. 406 of 2023 HC DSM Unreported Page 12. On the second raised issue argued, the respondent herein did not sue wrong part, the Registered Board of Trustee of Evangelical Lutheran Church of Tanzania own and operate many institutions among others is 6 Arusha Medical Centre. This was affirmed by applicant on paragraph 4 of his affidavit, argued that the applicant's affidavit did not demonstrate a triable issue sufficient to warrant this court to grant leave to defend the suit as per Order XXXV Rule 3(l)(b) and (c), of the Civil Procedure Code Cap 33 R.E 2019. Therefore, pray this court to dismiss application with costs. In rejoinder the applicant reiterated what was stated in the submission in chief that the respondent claiming that statutory contribution to wit TZS 4,578,044,334 being outstanding member principle contribution and 5,941 214 524.41 accumulated penalties for the period of August 2019 and August 2023 which make total of 10,519, 258.41. the applicant was required to show what was paid off and what is unpaid sum of the said statutory contributions. The applicant claimed to pay 3,094,005,528.66 while respondent claimed that the applicant only paid 2,755,144,670.78, all this need to be verified by evidence. Therefore, there is triable issues. The case of Insurance Company Limited Vs Attorney General cited by respondent is distinguishable. That applicant failed to establish triable issues, while in the case at hand the applicant established. Therefore, pray this application allowed with costs. 7 Considering the affidavit and counter affidavit of the applicants and the respondent respectively and considering the rival arguments in the written submission of both counsel of the applicant and respondents, I am of the view that, for the court to grant leave to the applicant the condition set under Order XXXV Rule 1(e) and 3(l)(b), of the Civil Procedure Code Cap 33 R.E 2019, shall apply that; - 1-, This Order shall, where the plaintiff desires to proceed in accordance with the Order, apply to- (e) suits for the recovery o f rent, interest or other debts due to the Republic, the Government or any local government authority; 3.- (1) The court shall, upon application by the defendant, give leave to appear and to defend the suit, upon affidavits which- (a)............... 8 (b) disclose such facts as the court may deem sufficient to support the application; or (c ) ........ It is my view that for the court to grant application to defend summery suit shall have to satisfy that, the facts are sufficient to support the application that, there is ; a) Triable issues and b) Reasonable defense This position receives support in the case of Classic Professional Caterer Vs. The Board of Trustees of The Public Service Social Security Fund Misc. Civil Application No. 250 of 2019 where the court observed that, for leave to be granted the applicant must present an arguable case. In the application to defend summery suit, the conditions are well articulated under Order XXXV Rule 1 (e) and 3(l)(a) and (b) of CPC (supra) the applicant must demonstrate that, there is an issue to be resolved. This position also receives support in the case of Datacom Consult Group Limited, Leopold Mutakyawa Rweyemamu and Rabia Nassoro Hemed Vs International Commercial Bank Tanzania Limited Misc. Application No. 107 of 2020 where my learned brother Nangela, J had the following to say; "In view o f the above, while I fully agree with the learned counsel for the Respondent .................................. where there are issues which need to be resolved in the main case as between the parties, leave to defend can as well be granted,............................" The applicant's affidavit demonstrated variation in claimed amount. The applicant claimed to pay 3,094,005,528.66 while respondent claimed the applicant only paid 2,755,144,670.78, all this need to be verified by evidence, applicant claiming that respondent sued wrong person while respondent faulted that did not sue wrong person. I consider all these cannot be determine in this application, my hands are tied up to determine whether there are issues which need to be resolve on the claim for statutory contribution, on my view the variation as to the claim needs evidence to proof. In support of my view the cases of Chissels Limited Vs Arusha International Conference Centre and Attorney General Misc. Civil Application No. 107 of 2022 HC; and Strategic Business Solutions Limited Vs the Board of Trustee of National Social 10 Security Fund Misc. Civil Application No. 476 of 2021 demonstrated that, for the court to allow application to defend summery suit there must be triable issues. Considering the above analysis, it is my view that, the applicants in this case have demonstrated the existence of the two conditions enshrined under order XXXV of CPC (supra) that, there is a triable issue and there is reasonable defence. In that regard, I find the application grantable. The applicants are given leave to appear and defend the summary suit in Civil Case No. 2 of 2024, before this court. The applicants are required to file their Written Statement of Defence within 21 days from the date of pronouncing this ruling. Costs of this application shall follow the determination of the main suit. It is so ordered. ii