[2025] UGCommC 94

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) CIVIL SUIT NO. 0329 OF 2024)**

10 **FRENAH (U) LIMITED:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

#### **NCBA BANK UGANDA LIMITED::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### **Before: Hon. Lady Justice Dr. Ginamia Melody Ngwatu**

## **RULING**

This ruling arises from a preliminary objection that was raised by Ms. Josephine Muhaise who appeared for the defendant, NCBA Bank Uganda Limited in *Civil Suit No. 0329/2024*. Ms. Muhaise submitted that the instant suit should abate under Order 11A rules 1 and 6 of the Civil 20 Procedure Rules, as amended.

### **Background**

The background to the instant suit is that the plaintiff filed a claim against the defendant for: a declaration that the defendant breached the terms of the bid security dated 30th October 2023 25 when it failed to pay the plaintiff within 14 days of demand; an order directing the defendant to pay the plaintiff a sum of Ugx 335,000,000 as per the terms of the bid security dated 30th October 2023 and general damages, among others. The plaintiff served the defendant with a summons to file a defence and the defendant subsequently filed a written statement of defence. The plaintiff did not file a reply to the written statement of defence and did not extract summons 30 for directions as required under Order 11A of the Civil Procedure Rules SI 71-1, as amended.

The matter came up for mention on 20th May 2025 wherein counsel for the plaintiff prayed that its application, *Miscellaneous Application No. 1982 of 2024*, an application for extension of time within which to file a reply to the defendant's written statement of defence be entertained before 35 *Civil Suit No. 0329/2024* can be heard. It is at this point that a preliminary objection was raised

by Counsel for the defendant on the ground that the suit should abate under Order 11A Rule 1 (2) and 6 of the Civil Procedure Rules as amended.

#### **Representation at the hearing**

5 The applicant was represented by Mr. Bernard Mabonga, who held brief for Mr. Kenneth Ssebabi of WEB Advocates& Solicitors; while the respondent was represented by Ms. Josephine Muhaise of S & L Advocates.

#### **Issue for determination**

10 The issue for determination by this court is whether the instant suit abated in line with Order 11A Rules 1(2) and (6) of the Civil Procedure Rules SI 71-1, as amended.

#### **Submissions**

The hearing proceeded by way of oral submissions.

#### 15

#### **Submissions by Counsel for the defendant**

The defendant's counsel brought to court's attention the defendant's letter dated 22nd August 2024, in which the defendant indicated that the plaintiff had filed to take out summons for directions within the mandated 28 days from the day of closure of pleadings as required under 20 Order 11A rule 1 of the Civil Procedure Rules SI 71-1, as amended. That the said letter, indicated that the pleadings closed on 1st August 2024 following the lapse of the 15 days for filing a reply, after the defendant' written statement of defence.

Counsel for the defendant relied on the case of *Kanarura Daniel versus Housing Finance Bank* 25 *Scott Mukundane Miscellaneous Application No. 0828/2024*, to emphasise that the requirement under Order 11A of the CPR is mandatory; and that where the plaintiff fails to comply with the requirement of extracting summons for direction under that rule the suit automatically abates. Counsel for the defendant submitted that the only relief available to the plaintiff in such circumstances is to re-file the suit subject to the law of limitation as provided under Order 11A 30 rule 1(7) of the Civil Procedure Rules as amended.

- Counsel for the defendant also submitted on the issue of the plaintiff seeking to have their application *(Miscellaneous Application No. 1982/2024 Frenah (U) Limited vs NCBA Bank* - *Uganda Limited)* for extension of time to file a reply heard. Counsel for the plaintiff had raised it 35 when seeking an adjournment for purposes of having the application heard first. Counsel for the defendant, however, argued that the said application does not amount to compliance with the requirement for summons for directions under the rules of the court. Counsel for the defendant further contended that the application was filed outside the timeline for summons for direction set by the court and as such was caught by the abatement provision. Counsel for the defendant - 40 made reference to the case of *Kanarura Daniel versus Housing Finance Bank & Scott Mukundane Miscellaneous Application No. 0828/2024* which had a similar set of circumstances wherein the plaintiff claimed that a suit could not abate on account of a pending application that

- 5 had been filled. The learned Judge in the case noted that the pendency of an application does not fall within the exceptions provided under the rule that sets this requirement for summons for directions; as such, the failure to take out the summons for directions within the mandated 28 days resulted in the abatement of the suit. It was further held that the only available remedy under the rules of the court is to file a fresh suit as provided by the rules of this court. The same - 10 principal was in *Owori Agrey and Mayanja Sarah Versus Centenary Rural Development Bank & Othieno Eriya Civil Suit No. 25/2023*.

Counsel for the defendant concluded by reiterating their prayers that court enters the order affirming abatement of the suit in line with the position of the law.

# 15 **Submissions by Counsel for the plaintiff**

The plaintiff's counsel submitted that the plaintiff did not consider pleadings closed as they had written a letter dated 6th August 2024 to the defendants seeking for consent to file out of time. That the said letter indicated that the counsel in personal conduct of the case was out of the country and they could not file a response in time. That the defendant never replied to that letter but instead wrote to court on the 22nd 20 of August 2024 indicating that the suit had abated. Counsel

- stated that in the circumstances the plaintiff had no choice but to file *Miscellaneous Application No. 1982/2024*. - Counsel for the plaintiff relied on the case of *Ali Owor & Anor versus The Registered Trustees of* 25 *Tororo Diocese Miscellaneous Application No. 148/2024*, wherein Justice Margaret Apinyi stated that before the court decides that the case abated, the plaintiff should be given an opportunity to show cause why it should not abate. That in the circumstances, counsel in personal conduct was out of the country and could not file a response to the written statement of defence in time. Counsel further submitted that the defendant was informed of such and consent - 30 was sought under Order 51 rule 7 of the Civil Procedure Rules, as amended. That the plaintiff waited for a response from the defendant, which never came promptly and the plaintiff had no choice but to file *Miscellaneous Application No. 1982/2024* for extension of time to file a reply to the written statement of defence. Counsel for the plaintiff stated that the said letter was received by the defendant on 7th August and that the defendant's move was *malfide* since they - 35 already knew that the plaintiff intended to file a response and informed them on that.

Counsel for the plaintiff concluded by stating that there is reasonable cause not to have this suit abated.

# 40 **Submissions by Counsel for the defendant in rejoinder**

Counsel for the defendant submitted that the plaintiff's letter dated 6th August 2024 was sent out outside the closure of pleadings as the said pleadings had closed on 1st August 2024. Counsel for the defendant further submitted that the subsequent letter by the defendant pointed out that

5 summons for directions had not been filed. That from the case counsel for the plaintiff cited, the learned Judge observed that the suit abated since the rule is couched in mandatory terms. Counsel for the defendant reiterated that the suit abated once the plaintiff failed to comply with that requirement and that in the circumstances, the court has no residual power to extend filing timelines since the suit is considered to no longer be in existence. Counsel prayed that the court 10 confirms the abatement and the file be closed on that account.

# **Determination by court**

Abatement of suits is provided for under Order 11A of the Civil Procedures, as amended. The Black's Law Dictionary, 11th 15 Edition, at page 3, defines abatement as, *"the act of eliminating or nullifying. The suspension or defeat of a pending action for a reason unrelated to the merits of the claim*." Order 11A Rule 1(2) of the Civil Procedure Rules, as amended, in particular provides that:

*"Where a suit has been instituted by way of a plaint, the plaintiff shall take out a summons* 20 *for directions within 28 days from the date of the last reply or rejoinder referred to in Rule 18(5) of these Rules."*

The summons for direction as a procedure in the handling of civil matters aims at enabling court to determine and provide guidance to the parties on whether there are further steps that ought to 25 be taken in order for them to effectively prepare for trial and ensure the expeditious disposal of thee suit. This view was reflected in the case of *Gama Distillers Ltd v. Bikanza Ezra High Court Civil Suit No. 60 of 2021*, where Hon. Justice Vincent Wagona stated thus:

*"From the reading of the entire order 11A of the Civil Procedure (Amendment) Rules 2019, what comes to my mind is that the order was intended to speed up trials by curtailing* 30 *unnecessary delays."*

Order 11A rule 6 of The Civil Procedure (Amendment) Rules, 2019 further provides that if the plaintiff does not take out a summons for directions in accordance with the Rules, the suit "**shall abate."** The use of the word **"shall"** connotes that the requirement for taking out summons for 35 directions is mandatory. In *Kalemesa Samuel Wilson versus Kaggwa Christopher Chris and 7 others, Miscellaneous Application No. 776 of 2023*, the court noted that Order 11A rule 1(2) is clear to the effect that, within 28 (twenty-eight) days from the last reply, the plaintiff shall take out summons for directions lest the suit shall abate.

40 Counsel for the plaintiff had a right to file a reply to the written statement of defence under Order 8 rule 18(1) of the Civil Procedure Rules, as amended, upon which summons for directions ought to have been taken out by the plaintiff. The aforementioned rules provide that:

> *"A plaintiff shall be entitled to file a reply within fifteen days after the defence or the last of the defences has been delivered to him or her, unless the time is extended."*

According to the ECCMIS, the plaint was filed on 15th July 2024 and the written statement of defence was filed on 17th July 2024, which was within the 15-day requirement under order 8 rule 1(2) of the Civil Procedure Rules, as amended. In this matter, it is, therefore, evident that the suit abated on 1st August 2024 in light of the fact that the plaintiff had not taken out summons for

- 10 directions. Much as counsel for the plaintiff submitted that they wrote to the defendant a letter dated 6th August 2024, seeking a consent for extension of time for the plaintiff to file its reply in line with Order 51 rule 7 of the Civil Procedure Rules, as amended; by that time, the 15-day period provided under the Civil Procedure Rules as amended, for filing a reply to the written statement of defence had already lapsed on 1st August 2024. In any case, under Order 8 rule 18 - 15 (1) of the Civil Procedure Rules, as amended, a plaintiff has a right to file a reply within the set timelines under the Civil Procedure Rules, as amended; however, it is not mandatory that a reply to a defendant's written statement of defence must be filed, although it may be necessary if the defendant made a counterclaim. It does not suffice, therefore, to state that the plaintiff was awaiting a response to their request for consent on extension of time from the defendants. - 20

Hon. Justice Stephen Mubiru cited with approval the case of *Phelps v. Button [2016] EWHC 3185* in the case of *Kampala Associated Advocates vs Katamba Ssemakula Miscellaneous Application No. 873 of 2019* to lay out the considerations for determining whether a suit should abate. These considerations include: the length of the delay; any excuses put forward for the 25 delay; the degree to which the claimant has failed to observe the rules of court or any court order; the prejudice caused to the defendant by the delay; the effect of the delay on trial; the effect of the delay on other litigants and other proceedings, among other considerations.

In the instant case, there are no excuses for the delay in taking out summons for directions as required. By the time Counsel for the plaintiff wrote to counsel for the defendant on 6th 30 August 2024 seeking a consent on extension of time to file a reply to the written statement of defence, they were already out of time and the only remedy would have been to file a fresh suit. In the premises, I am inclined to uphold the preliminary objection by counsel for the defendant that *Civil Suit No. 329/2024* indeed abated under Order 11A rules 1 and 6 of the Civil Procedure

35 Rules SI 71-1, as amended.

The instant suit abated and is accordingly dismissed with costs to the defendant.

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40 *Dr. Ginamia Melody Ngwatu Ag. Judge 22 nd May 2025*

*Ruling delivered via ECCMIS*