[2025] UGCommC 109

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 0573 OF 2024 10 (ARISING FROM CIVIL SUIT NO. 165 OF 2023)

### NEW PARK LOCK UP OWNERS ASSOCIATION LTD…. APPLICANT

#### VERSUS

WASSWA JUMA……………………………………….... RESPONDENT

#### BEFORE : HON. LADY JUSTICE SUSAN ODONGO

#### 20 RULING

This application is commenced under Order 11(A) rule 6, Order 52 rules 1,2 & 3 of the Civil Procedure rules SI 71-1 for the following orders:

- 1. A declaration that Civil Suit No. 165 of 2023 abated - 2. An order that Civil suit No. 165 of 2023 be struck off the court record. - 25 3. An order that the respondent pays costs of the abated civil suit 165 of 2023. - 4. An order that the respondent pays costs of this application.

#### Background

The background to this matter is based on the ECCMIS record, with dates taken 30 from the system's upload timestamp, which is presumed to serve as official public notice of court actions.


Accordingly, on 10 5 th May 2023, the respondent who is the plaintiff in Civil Suit no. 165 of 2023 filed the said suit for declaratory and monetary reliefs in a claim for breach of a Memorandum of Understanding, whereby the respondent/plaintiff sought, inter alia, orders of specific performance, or in the alternative refund of Ugx 53,000,000. According to the Memorandum of 10 Understanding, applicant/defendant is the registered proprietor of Plots of land which they intended to redevelop into modern shopping facility. The respondent/plaintiff a member and subscriber to the articles and memorandum of Association of the applicant/plaintiff was required to make a total contribution of Ugx 53,000,000/- towards the said redevelopments and in 15 consideration the applicant/plaintiff would allocate him one retail shop in the facility. However, the applicant/defendant has not obliged despite several reminders.

On 25 th February 2023, the court issued to the applicant/defendant summons to file a defence. By letter dated 28 th March 2023 from JNKaterega Advocates & 20 Legal Consultants, counsel for the respondent/plaintiff, addressed to this court, a request was made for issuance of fresh summons for purpose of summoning the applicant to file their defence in Civil Suit no. 165 of 2023 for the summons issued on 25 th February 2023 had expired.

On 10 th May 2023 the court issued to the applicant/defendant another summons 25 to file a defence. The applicant/defendant filed their written statement of defence on 18 th May 2023.

On 25 thMarch 2024 another letter was addressed to this court by counsel for the respondent/plaintiff by which he informed the court that summons to file defence were served on the applicant through their lawyers Kizito, Lumu & Co.

Advocates on 15 30 th May 2023, and receipt was acknowledged but the applicant has never filed the same. In the same letter the respondent mentioned that they have attached summons for directions seeking court's guidance on how to proceed and requesting for the same to be fixed.

In letter dated 13th May 2025, from counsel for the respondent/plaintiff 35 addressed to this court, he expressed that the matter has been pending hearing date and issuance of summons for directions ever since it was instituted. He therefore requested that the matter be fixed and summons for directions be issued. To the letter is attached summons for directions.


On 13 th May 2025 the respondent/plaintiff filed his trial bundle. Then on 16th 5 May 2025 summons for directions was taken out for the hearing of an application for directions scheduled for 20 th May 2025.

## The Application and supporting affidavit:

The provisions of the law under which this application is commenced and the 10 prayers which the application seeks, have already been set out at the preamble of this ruling.

The grounds of the application are that the respondent filed Civil Suit no 165 of 2023 on 8 th February 2023. The applicant filed a defence on 18th May 2023. From the time of filing the defence, the respondent has not taken steps to extract 15 summons for directions. Therefore, the suit abated under Order 11(A) rule 6 of the Civil Procedure Rules. That it is just and equitable that this application is

granted.

The application was support by affidavit deponed by Ivan Okanya stating that the respondent filed Civil Suit no. 165 of 2023 on 8 th February 2023 and the applicant in response to the summons to file a defence, filed the defence on 18th 20 May 2023. It is the applicant's evidence that ever since the defence was filed to date, the respondent has not taken steps on the matter including extracting the summons for directions. That the respondent was supposed to take out summons for directions within 28 days after the date of the last reply. The applicant having filed the defence on 18 25 th May 2023, the respondent should have taken out the summons for directions by 15th June 2023. That under Order 11(A) rule 6 of the Civil Procedure Rules the suit abated.

## Affidavit in Reply

The respondent in reply filed an affidavit deponed by himself, Wasswa Juma. 30 The contents of the affidavit were interpreted and translated from Luganda to English, for the deponent who is conversant with Luganda.

The respondent stated in his affidavit that he intends to raise a preliminary objection that the application is bad in law and misconceived as actions required to have a case fixed for summons were all done but court to date delayed to fix the same. That as informed by his lawyer, Civil Suit 165 of 2023 was filed on 8 th February 2023 and summons to file a defence dated 25 th February 2023 expired where fresh summons were requested dated 10 th March 2023. That even with


- the new summons the applicant did not file his defence. That on 19^th March 2024 $\mathsf{S}$ he wrote to court about the non service of the written statement of defence and also requested for summons for directions. That the defendant has failed to serve the defence on the plaintiff hence he has no locus to file this application. That the purported filed defence has never been endorsed by this honourable court or - properly lodged. That he is informed by his lawyer that the duty to fix matter is 10 for court and in his case he applied for summons, and that all attempts have been made to obtain summons for directions but in vain. That the application should be dismissed and the main suit fixed for hearing.

## **Affidavit in rejoinder**

- It is applicant's supplemental evidence that summons to file defence were issued 15 by court on 1^st May 2023 and served on the applicant on 15^th May 2023. The applicant filed their defence on 18^th May 2025 and personally served the respondent's advocates on the same day where upon the counsel for the respondent informed them that the document should be uploaded on ECCMIS. - From ECCMIS no summons for directions were extracted on 15^th June 2023. $20$ That the respondent's counsel filed a letter on ECCMIS on 3^rd June 2024 alleging that they had attached the summons for directions but no such summons were attached. That the letter dated 13^th May 2025 attached as annexture C has never been filed on the record for it does not appear on ECCMIS. The summons for directions has been drafted in 2025 which is two and a half years after the last $25$ - reply was filed in the matter.

## <u>Representation</u>

When this matter came up for hearing on 14^th May 2025, all parties were represented. Following court's directions, the parties filed written submissions.

#### **Applicant's submissions** 30

The applicant raised 3 issues for determination by this court as follows:

- 1. When was the last reply filed in civil suit 165 of 2023 - 2. Whether summons for directions were taken out within 28 days after the last reply - 3. What remedy is available 35

The applicant submitted that it is evident from ECCMIS that the suit was filed on $8^{th}$ February 2023. That summons to file defence were issued by court on $1^{st}$


May 2023 and served on the applicant on 15 5 th May 2023. The defence was filed and served on 18 th May 2025. Therefore, the last pleading filed in the matter was the defence.

The applicant asserted that the summons for directions should have been taken out within 28 days from the date of the defence, that is by the 15 th June 2023.

- 10 From the record on ECCMIS no summons for directions were taken out. That the respondent's counsel filed a letter on ECCMIS on 3 rd June 2024 claiming to attach the summons for directions. However, no summons was attached to the letter but even if they were attached, the statutory 28 days had elapsed. According to the applicant the latest letter by the respondent, dated 13 th May - 15 2025 annexture C to the reply, onto which summons for directions is attached, is false for having never been file on the record. In addition, the summons for directions attached to the reply is dated 2025, a period of two and a half years from the last pleading filed.

## Respondent's submissions

- 20 It is the respondent's submission that the record of court and all the contents on ECCMIS ably resolve the matter. That following filing the suit they applied for summons severally but all in vain until 21 st May 2025 when the summons were issued by the court. That they filed their trial bundle and waited for each party to comply with the directions. - 25 Issues for determination

The applicant provided in their submissions issues to guide the court in resolving the matter. However, in accordance with Order 15 rule 5 of the Civil Procedure rules, I will amend the issues and frame the following singular issue:

• Whether civil suit no. 165 of 2023 abates for failure by the 30 plaintiff/respondent to take out summons for directions?

## Court's Determination

## Whether Civil Suit 0612 of 2023 abates for failure by the plaintiff to take out summons for directions.

35 The rationale for summons for directions is provided for under order 11A rule 1(1) of the Civil Procedure (Amendment) Rules, 2019. The provision states;


#### 5 *ORDER XIA SUMMONS FOR DIRECTIONS*

*1. Summons for directions.*

*(1) The court shall, for purposes of preparing for every action to which this rule applies, provide an occasion for consideration of a suit for a scheduling conference and trial of the suit so that—*

10 *(a) any matter which should have been dealt with by an interlocutory application and has not been dealt with may, so far as possible be dealt with; and*

> *(b) directions may be given for the future course of action as appears best to be adapted to secure the just, expeditious and economical disposal of the matter.*

The summons for directions being a preliminary stage of the suit, is intended to 15 manage and streamline the progress of a case before trial, by setting procedural directions. These comprise case management, disclosure or discovery of documents, timelines, narrowing issues, trial preparation. The core purpose being to "secure the just, expeditious and economical disposal of the matter". In many jurisdictions, filing a Summons for Directions is a required procedural step 20 after pleadings close but before trial.

This application is rooted in Order 11A rule 1 (2) of the amendment rules which stipulates as follows:

*(2) Where a suit has been instituted by way of a plaint, the plaintiff shall take out summons for direction within 28 days from the date of the last reply or rejoinder* 25 *referred to in rule 18(5) of Order VIII of these rules.*

Under Order 8 rule 18(5) referred to in Order 11A rule 1 (2), the following is stipulated:

*18. Subsequent pleadings.*

*(5) Where a pleading subsequent to reply has not been ordered, then at the* 30 *expiration of seven days from the filing of the reply, or where a reply has not been filed within the time fixed by or in accordance with these Rules, or a subsequent pleading has been ordered and has not been filed within the time fixed by the order or such enlarged time as may be fixed in accordance with these Rules, then at the expiration of the time so fixed, the pleadings shall be deemed to be closed, and all* 35 *material statements of fact in the pleading last filed shall be deemed to have been denied and put in issue; except that this subrule shall not apply to a reply to a*


5 *counterclaim and, unless a plaintiff files a reply to a counterclaim within the time fixed by or in accordance with these Rules, the statement of facts contained in the counterclaim shall at the expiration of the time so fixed be deemed to be admitted, but the court may at any subsequent time give leave to the plaintiff to file a reply.*

Failing to file summons for direction within the prescribed time can have 10 significant procedural consequences. Order 11A rule 1 (6) of the Civil Procedure (Amendment) Rules, provides that where the plaintiff does not take out a summons for directions in accordance with subrules (2) or (6), the suit shall abate. Black's Law Dictionary 8th Edition at page 7 defines abatement to mean the act of eliminating or nullifying. In this case its disposal of a suit without trial 15 on merits.

It suffices to state that the order 11A sets out exceptional circumstances upon which a suit cannot be regarded as abated for failure to take out summons for directions *(see; Order 11A r 1 (4); Kalemesa Samuel Wilson V Kaggwa Christopher Chris & 7 Ors HCMA No. 776 of 2023).* These are;

- 20 a) an action in which the plaintiff or counterclaimant has applied for a default judgment under Order 9 rules 6 and 7, summary judgment under Order. 36 or where application for leave to file a defence under Order 36 is refused; - b) an action in which the plaintiff or defendant has applied under Order 6 25 rules 29 or 30 or Order15 rule 2 for determination of the suit on a point or points of law; - c) an action in which an order for the taking of an account has been made under Order 20; - d) an action in which an application for transfer to another division, court 30 or tribunal has been made; or - e) an action in which a matter has been referred for trial to an official referee or arbitrator.

Notably, as deduced from the facts of the case, the suit does not fall within the exceptional circumstances. According to the record on ECCMIS, the plaint was filed on 10th May 2023, and written statement of defence on 18 35 th May 2023. I take it that this is the last pleading because thereafter the respondent/plaintiff did not file any other pleading. What followed were letters. This means that the final pleading which was the written statement of defence was filed on 18th May, 2023. That is 2 years ago. On 16 th May 2025 the summons for directions was


- taken out for the hearing of an application for directions scheduled for 20 5 th May 2025. Needful to state that the parties had already appeared before this court on 14 th May 2025 for the hearing of this application and the court had given parties schedules for filing of written submissions. I am not certain, if in so doing the respondent intended to preserve their position or to act in defiance of the court. - 10 There is no dispute as to the plaintiff's failure to comply with the law in respect to the taking out summons for directions. The question would be whether or not the compliance was to be strictly followed. Was it mandatory for the plaintiff to take out the summons for directions within 28 days of the written statement of defence, failure of which would lead the suit to abate? or was he at liberty to take - 15 it out at any time or not at all and the said consequences would not apply?

The subject of whether or not the requirement in Order 11A rule 1 (2) and (6) is mandatory or directory has been a subject of discussions by the Courts with varying findings (see; *Seruwo Jude V Swangz Avenue Limited HCCA No. 39 of 2021).* The harmonized view is that the court should exercise its discretion judiciously

20 and look at the circumstances of each case before it concludes that a suit should abate.

The courts often decide this based on legislative intent, context and the consequences of non compliance. The Supreme Court in *Sitenda Sebalu V Sam Njuba & the Electoral Commission (Supreme Court Election Petition Appeal No. 26 of* 25 *2006)* while determining the intention of the legislature in legislation that is drawn in imperative terms, cited with approval the case of *The Secretary of State for Trade and Industry Vs. Langridge (1991) 3 All ER 591* in which the court relied on guidelines established in *Smith's Judicial Review of Administrative Action 4th Ed. 1980.* The author expresses the view that the court must formulate its criteria for 30 determining whether the procedural rules are to be regarded as mandatory or as directory. In interpreting the statute it is essential to examine the statute's overall purpose and framework, evaluating the importance of the overlooked provision and its connection to the broader purpose the Act is intended to achieve.

The distinguished author states;

35 *"In assessing the importance of the provision, particular regard may be had to its significance as a protection of individual rights, the relative value that is normally attached to the rights that may be adversely affected by the decision and the importance of the procedural requirement in the overall administrative scheme established by the statute.*


5 *Although nullification is the natural and usual consequence of disobedience, breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced or if serious public inconvenience would be caused by holding them to be mandatory or if the court is for any reason* 10 *disinclined to interfere with the act or decision that is impugned."*

The Court in *Sitenda Sebalu* went on to cite decisions where the courts opted to disregard the *"rigid mandatory and directory distinction, and its many artificial refinements"* (see; *Lord Steyn aptly observed in Regina vs. Soneji and another [2005] UKHL 49 (HL Publications on Internet))* and rather laid emphasis on the

15 consequences of non-compliance, and posing the question whether Parliament can be fairly taken to have intended total invalidity.

In *Project Blue Sky Inc. vs. Australian Broadcasting Authority (1998) 194 CLR 355,* guided that "a better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision

20 should be invalid….. In determining the question of purpose, regard must be had to the language of the relevant and the scope and object of the whole statute."

I have considered the various positions advanced which has been extremely helpful in enabling me formulate my criteria. I have studied the language used

25 in Order 11A rule 1(1), the provision which provides the rationale for a summons for directions; and Order 11A rule 1 (2) which requires the taking out of the summons for directions within 28 days from the last rejoinder; and Order 11A r 1 (4) the curve out clause, which specifies the exceptional circumstances upon which a suit cannot be regarded as abated for failure to take out summons 30 for directions; and Order 11A rule 1 (6) which provides for the consequences for non compliance with subrule (2). I am convinced that the legislative intent was for the requirement under Order 11A rule 1 (2) to be strictly enforced with invalidation as a consequence for non compliance.

I am fortified in my mind by the draftsman's deliberate intent for strict 35 adherence, as seen from the language of the Order which comprises provision for (1) the rationale for pretrial preparations, (2) the mode and period within which the preparations shall be undertaken, (3) a curve out for circumstances where the order will not apply, and (4) the consequences for non compliance. This by no means point to an advisory or permissive intent.

- 5 In light of the above, I allow this application and find that Civil Suit no. 165 of 2023 abates for failure by the respondent/plaintiff to take out summons for directions by 15th June 2023 in accordance with Order 11A rule 1(2) of the Civil Procedure (Amendment) Rules. It is worth noting that while it abates the party is at liberty to file a fresh suit subject to the law of limitation in accordance with - 10 Order 11A rule 1 (7).

I, consequently, make the following orders:

- 1. Civil Suit No. 165 of 2023 abates. - 2. Each party bears its own costs both in Civil Suit 165 of 2023 and in this application.

Dated, signed and delivered electronically this 28 th day of May, 2025.


Susan Odongo

20 JUDGE