[2025] UGCommC 127

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL COURT DIVISION) CIVIL SUIT NO. 1131 OF 2022)**

10 **1. NAIGA MARGRET (Administrator of the estate**

**of the late Livingstone Nsubuga)**

**2. NAIGA MARGRET:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS**

#### **VERSUS**

- **1. PROJOS NATURE SAFARIS (U) LIMITED::::::::::::::::::::::::::::RESPONDENTS** - 15 **2. DFCU BANK LIMITED** - **3. COMMISSIONER LAND REGISTRATION**

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

#### 20 **RULING**

This ruling arises from a preliminary objection that was raised by Mr. Balemezi Emmanuel of KSMO Advocates who appeared for the 2 nd defendant, DFCU Bank Uganda Limited, in *Civil Suit No. 1131/2022 Naiga Margret (Administrator of the estate of the late Livingstone Nsubuga & Anor vs Projos Nature safaris (U) Limited & 2 Others* (formerly *Civil Suit No. 630/2022*). Mr.

25 Balemezi Emmanuel submitted that the instant suit should abate under Order 11A rules 1 and 6 of the Civil Procedure Rules, as amended.

#### **Background**

The background to this suit is that the plaintiffs filed a suit against the defendants seeking various orders, including: cancellation of the mortgage deed entered into between the 1st and 2nd 30 defendants in respect of land comprised in Block 193 plot 327, land at Kungu; an order vacating the mortgage registered by the 3rd defendant on the said land vide instrument no. KLA 491076 registered on 11th March 2011; a permanent injunction restraining the defendants and anyone claiming title under them from interfering with the possession and enjoyment of the said suit 35 land; and general damages. The suit was initially filed at the Land Division of the High Court

vide *Civil Suit No. 630/2022* but due to the fact that some aspects of it pertained to a mortgage, it was transferred to the Commercial Court Division and issued another file number, *Civil Suit No. 1131/2022.*

This matter came up for mention on 17th 5 April 2025 and counsel for the defendant raised a preliminary objection on the ground that *Civil Suit No. 1131/2022* abated under Order 11A Rule 1 (2) and 6 of the Civil Procedure Rules as amended; and should, therefore, not proceed.

### **Representation at the hearing**

10 The Plaintiffs were represented by Mr. Mahmood Kakeeto of Luminous Advocates & Solicitors; while the 2 nd defendant was represented by Mr. Balemezi Emmanuel of KSMO Advocates. The 1 st and 3rd defendants were not represented. An order for substituted service was made against the 1st defendant but not effected due to delays in fresh summons being issued.

# 15 **Issue for determination**

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**

20 The hearing of the preliminary objection proceeded by way of written submissions.

# **Submissions by Counsel for the defendant**

Counsel for the 2 nd defendant submitted, while basing on the case of *Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors (1969) EA 69*, that a preliminary point of law 25 can be raised at any time during the proceedings of court. He cited Order 11A rule 1 (2) of the Civil Procedure Rules to argue that the suit automatically abated upon the plaintiffs' failure to take out summons for directions.

Counsel for the 2nd defendant pointed out that counsel for the plaintiffs filed the instant suit on 6 th June 2022; the 3rd defendant filed a written statement of defence on 12th 30 October 2022 while the 2nd defendant filed on 25th October 2022. The plaintiffs applied for substituted service on the 1 st defendant on 19th June 2023 under *Miscellaneous Application No. 1886/2022*, which was granted. However, on 31st July 2023, the 2nd defendant wrote a letter to court reminding it to abate the suit for failure of the plaintiffs to take out summons for directions as required under 35 Order 11A rule 1(6) of the Civil Procedure Rules SI 71-1 as amended. That the summons for directions ought to have been taken out within 28 days from the last reply to the pleadings.

Counsel for the defendant further contended that the plaintiffs was deliberately misleading court by claiming that they had followed up with court to issue fresh summons to serve the 1st 40 defendant. That it had now been three years and the concerned Registrar has been at the court and could not have taken three years to issue the summons if the plaintiffs had diligently followed up. Counsel for the defendant argued that instructing counsel does not give a party

- 5 latitude to sit back and forget about the case. That a party, in this case the plaintiffs, still has a duty to follow up and inquire from their counsel about the status of the case. (See *Kananura Andrew Kansiime vs Richard Henry Kaijuka SC, Civil Reference No. 15 of 2016*). Counsel for the defendant argued that the suit before this court originated from *Civil Suit No. 630/2022* from the Land Division and it ought to have abated but the same was transferred to Commercial Court. - 10 Counsel for the defendant concluded by stating that unless exceptional circumstances as provided for under Order 11A rule 1(4) are illustrated, the suit must abate.

## **Submissions by Counsel for the plaintiffs**

- 15 The plaintiffs' counsel submitted that *Civil Suit No. 630/2022* was filed at the Land Division on 6 th June 2022 and summons were issued and served on the 2nd and 3rd defendants but there was a failure by the plaintiffs and their counsel to trace the 1st defendant. That fresh summons were issued on 4 th October 2022 and the 2nd and 3rd defendants were served on 5th day of October 2022 and they filed their written statements of defence on the 12th and 25th of October 2022, respectively. The 1st 20 defendant never and has never filed a defence which prompted the plaintiffs to file an application for substituted service vide *HCMA 1886/2022*. That the said application - was heard and determined on 19th June 2023 wherein the plaintiffs was permitted to serve the 1st defendant via substituted by publishing summons and plaint in newspapers of wide circulation. Counsel submitted that court inadvertently forgot to issue fresh summons.

Counsel argued that the counsel for the defendant filed the written statement of defence 5 days after the last day for filing and it should have, therefore. been struck off the record. Counsel also prayed that any prior communication by and any involvement of the 2nd defendant in this proceeding should be expunged off the record.

#### *Determination by court*

It should be noted that at the time *Civil Suit No.630/2023* (now *Civil Suit No. 1131/ 2022*) was transferred from the Land Division of the High Court to the Commercial Court, the plaintiffs was represented by Mayanja, Nakibuule and Co. Advocates. Luminous Advocates and Solicitors took over the matter when the issue of abatement of the suit had already been raised by the 2nd 35 defendant.

Order 11A of the Civil Procedures Rules SI 71-1, as amended provides for abatement of suits. Abatement has been defined in Black's Law Dictionary, 11th Edition, at page 3, as, *"the act of* 40 *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:

5 *"Where a suit has been instituted by way of a plaint, the plaintiff shall take out a summons 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 directions as a procedure in the handling of civil matters seeks to allow court 10 to determine and provide guidance to the parties on whether there are additional steps that they ought to take in order to effectively prepare for trial and ensure the expeditious disposal of the suit. This was the view of court in the case of *Gama Distillers Ltd v. Bikanza Ezra High Court Civil Suit No. 60 of 2021*, where Hon. Justice Vincent Wagona stated that:

*"From the reading of the entire order 11A of the Civil Procedure (Amendment) Rules 2019,* 15 *what comes to my mind is that the order was intended to speed up trials by curtailing unnecessary delays."*

Further, Order 11A rule 6 of The Civil Procedure (Amendment) Rules, 2019 provides that if the plaintiffs does not take out a summons for directions in accordance with the Rules, the suit "**shall**

20 **abate."** Under Order 11A rule 6, the requirement for taking out summons for directions is mandatory given the use of the word "shall". 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.

In this particular matter, as indicated on ECCMIS, the plaintiffs filed the instant suit on 6th June 2022. The 3rd defendant later filed a written statement of defence on 12th October 2022; and the 2 nd defendant filed their written statement of defence on 25th October 2022, albeit outside the stipulated timeframe indicated in the Civil Procedure Rules. No further action was taken against

by the plaintiffs until 12 30 th May 2025 when it wrote to the Commercial seeking that fresh summons be issued.

Justice Stephen Mubiru in *Rashida Abdul Karim Hanali & Mohamed Allibhai Vs Suleiman Adrisi Miscellaneous Civil Application No. 0009 OF 2017* found that:

- 35 *"The timelines in the rules are intended to make the process of judicial adjudication and determination swift, fair, just, certain and even-handed. Indeed, public policy demands that cases be heard and determined expeditiously since delay defeats equity, and denies the parties legitimate expectations"* - 40 In the case of *Kampala Associated Advocates vs Katamba Ssemakula Miscellaneous Application No. 873 of 2019,* Hon. Justice Stephen Mubiru cited the case of *Phelps v. Button [2016] EWHC 3185* 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 delay; the degree to which the claimant has failed to observe the rules of court or any court order; the prejudice

5 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 this instant application, there was inordinate delay by the plaintiffs to take out summons for directions against the 2nd and 3rd defendant as mandatorily required under Order 11A of the Civil

- 10 Procedure rules. Much as counsel for the plaintiffs submitted that the 28 days within which summons for directions should be taken out start running from the time of filing the very last defence. That the the suit did not abate since the 1st defendant has not yet filed a defence and the issuing entity has not issued fresh summons. In terms of Order 11A rule 1(6) of the Civil Procedure Rules SI 71-1 as amended this suit abated as no summons for directions were taken 15 out by the plaintiffs within 28 days from the last reply to the pleadings. The last valid reply to pleadings were filed on 12 th October 2022 by the 3rd defendant. 3 years is too long a period; and the plaintiffs cannot expect the opportunity for the filing of pleadings to indefinitely stay open given their failure to serve the 1st defendant. - 20 The plaintiffs also failed to diligently follow-up and ensure that fresh summons were issued to be served via substituted service on the 1st plaintiff. As admitted by counsel for the plaintiffs in their written submissions, there were challenges in locating the 1st defendant and the plaintiff subsequently applied for substituted service to be conducted on the 1st defendant on 19th June 2023 under *Miscellaneous Application No. 1886/2022*. The application was granted but fresh - summons were never issued for service on the 1st defendant; and the 1st 25 defendant has never been found or served via substituted service to date. This defeats the objective of substituted service which was to make the 1st defendant aware of the suit against them through other means since they could not be served personally as required under Order 5 rule 18 of the Civil Procedure Rules. - 30

Much as counsel for the plaintiffs submitted in their written submissions that the delay to issue fresh summons to be served on the 1st defendant was brought about by court, upon perusal of the annextures to the plaintiffs' written submissions, it is observed that the summons attached were issued by the Land Division of the High Court and not this court. No evidence has been attached 35 to show that upon the transfer of this suit from the Land Division to the Commercial Court,

applications for fresh summons were made and the request was not honoured.

It is observed that it is now three years since the grant of the application for substituted service but no evidence was presented by the plaintiffs to prove that steps were taken to follow-up on 40 issuance of the fresh summons by the court Registrar. A letter was recently written to the court on 12th May 2025 requesting for fresh summons to be issued. However, no excuses were put forward by the plaintiffs to justify the delay in following-up. It should be noted that this letter written to court on 12th May 2025 was an afterthought on the part of the plaintiffs since counsel for the defendant had indicated during mention of the suit on 17th 5 April 2025 that he intended to raise a preliminary objection regarding abatement.

It is also observed that the plaintiffs, in their written submissions, alluded to the 2nd defendant's having filed their written statement of defence out of time and that it should have been struck

- out. Upon perusal of ECCMIS, it is confirmed that the 2 nd and 3rd 10 defendants were served with summons to file a defence on 5th October 2022 and the counsel for the defendant filed their written statement of defence five days late, having filed the same on 25th October 2022; which was outside the 15-day requirement provided for under order 8 rule 1(2) of the Civil Procedure Rules, as amended. In the case of *Simon Tendo Kabenge vs Barclays Bank Uganda Limited* 15 *S. C. C. A. No. 17/2015*, the Supreme Court held that a written statement of defence must be filed - and served within fifteen days. In line with the adage "he who comes to equity must come with clean hands" it is observed that the 2 nd defendant equally filed their written statement of defence out of time and it should have been struck out. - 20 In light of the foregoing, it is the finding of this court that the instant suit abated and that the written statement of defence filed by the 2nd defendant out of time ought to have been struck out having been filed five days outside the stipulated period in the Civil Procedure Rules, SI 71-1, as amended. Each party will bear its costs.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ *Dr. Ginamia Melody Ngwatu Ag. Judge 10th June 2025*

*Ruling delivered via ECCMIS*