[2025] UGCommC 104

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) HCT-00-CC-CS-0612-2023

NYIRABASHITSI TEOPISTA………………………………. PLAINTIFF

#### VERSUS

## 15 CENTENARY BANK LIMITED……………………….. DEFENDANTS HABYARIMANA ATANAS

## BEFORE : HON. LADY JUSTICE SUSAN ODONGO

#### 20 RULING

#### Introduction

The Civil Suit was instituted by ordinary plaint for a declaration that the defendants were fraudulent in their dealings in respect to land comprised in Plot 1001, Block 211 land at Kikaaya Kyadondo Kampala, for which the plaintiff 25 claims special damages, a permanent injunction, specific performance, general damages, punitive damages.

By way of background, it is the plaintiff's case that she and the 2nd Defendant are married with eight issues. A customary marriage certificate dated 16/7/2000 was attached as proof of marriage. That the 2nd Defendant without the consent of the plaintiff mortgaged their matrimonial house to the 1 30 st Defendant. That at all times, the 1st Defendant was aware that the 2 nd Defendant was married because they had initially obtained a mortgage from the 1 st Defendant. The


- plaintiff attached a mortgage agreement for Ugx 40,000,000, dated 1 5 st October 2012, where the suit property was collateral and in which the Plaintiff consented as a spouse. That the plaintiff learnt on 2nd December 2022 that her matrimonial home was up for sale by the 1st Defendant when the latter's officials came to her home and put up a "Property for sale" notice on her home. That when she - inquired from the 2 10 nd Defendant about the matter, he was adamant and refused to respond. The plaintiff lodged a caveat on the property. She later learnt from a demand notice delivered to her home by the Court Bailiffs that the 2nd Defendant owed the 1st Defendant an outstanding sum of Ugx 52,138,274/=. The property was subsequently advertised for sale in the newspaper. - The 2nd Defendant filed his defence on 20th 15 July 2023 by which he took note of the claim but did not admit the same.

The 1st Defendant file their defence and counterclaim on 24th July 2023. They contend that on 12th March 2020 the 2nd defendant applied for and was granted a credit facility of Ugx 50,000,000 by the 1st Defendant. To secure the credit

- facility, the 2 20 nd Defendant pledged the duplicate certificate of title of the suit land. That prior to issuance of the facility the 1st Defendant conducted sufficient due diligence as required under the law including obtaining a statutory declaration from the 2nd Defendant wherein he stated that he was not married. A copy of the said Statutory Declaration is attached. That in further due diligence the 1 25 st Defendant visited the suit land, opened boundaries, conducted - a search at the land registry and valued the security. That the 2nd Defendant defaulted on repayment of the facility and despite demand notices failed to make good his part of the agreement. The 1st defendant then sought to liquidate the pledged mortgage security as at 22nd June 2023. The 1 st Defendant contends that the suit is a conspiracy by the plaintiff and the 2nd Defendant to defraud the 1 st 30 Defendant. - In the counterclaim against the 2nd Defendant, the 1st Defendant seeks inter alia the recovery of Ugx 52,138,274.

The 2nd Defendant filed his reply to the counterclaim on 15th September 2023 35 denying the counterclaimant's claim.

## Representation and hearing:

When the matter came up for hearing, the plaintiff was represented by Mr. Webisa Denis and the 1st Defendant was represented by Mr. Amon Abasa. The


2 5 nd Defendant is self represented. He was not personally in court but had sent a representative. The plaintiff was in court. There was no representative of the 1st Defendant in court.

The plaintiff counsel informed court that when he took on the matter he discovered that previous counsel had not taken out summons for directions. He

- 10 prayed that court grants the plaintiff time to take out summons for directions. In response the 1st Defendant contended that the matter abated in accordance with Order 11(A) of the Civil Procedure Rules for failure by the plaintiff to take out summons for directions within the prescribed time. The 1st Defendant prayed for the dismissal of the suit with costs to the 1st Defendant. He further added that if - 15 the court is inclined to grant the plaintiff opportunity to take out summons for directions he will leave it to the court.

## Issues for determination

The singular issue for determination before this court is whether Civil Suit no. 0612 of 2023 abates for failure by the plaintiff to take out summons for

20 directions.

## Court's Determination

## Issue 1

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

25 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;

## *ORDER XIA SUMMONS FOR DIRECTIONS*

*1. Summons for directions.*

*(1) The court shall, for purposes of preparing for every action to which this rule* 30 *applies, provide an occasion for consideration of a suit for a scheduling conference and trial of the suit so that—*

> *(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* 35 *adapted to secure the just, expeditious and economical disposal of the matter.*


- 5 The summons for directions being a preliminary stage of the suit, is intended to 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 - 10 many jurisdictions, filing a Summons for Directions is a required procedural step after pleadings close but before trial.

The objection and prayer for dismissal of the suit by the defendant 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* 15 *summons for direction within 28 days from the date of the last reply or rejoinder referred to in rule 18(5) of Order VIII of these rules.*

Under Order 8 rule 18(5) referred to above, the following is stipulated:

*18. Subsequent pleadings.*

*(5) Where a pleading subsequent to reply has not been ordered, then at the* 20 *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* 25 *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 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,* 30 *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 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 35 Edition at page 7 defines abatement to mean the act of eliminating or nullifying. In this case its disposal of a suit without trial on merits.


- 5 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; - a) an action in which the plaintiff or counterclaimant has applied for a - 10 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 rules 29 or 30 or Order15 rule 2 for determination of the suit on a point or 15 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 or tribunal has been made; or - 20 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 pleadings on record, the plaint was filed on 5th July 2023 and the final reply or rejoinder which was the reply to the

- counterclaim was filed on 15th 25 September, 2023 over a year ago. 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 her compliance was to be strictly followed. Was it mandatory for the plaintiff to take out the summons for directions within 28 days of the final rejoinder failure of - 30 which would lead the suit to abate? or was she at liberty to take 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).*

35 The harmonized view is that the court should exercise its discretion judiciously 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*


- 5 *Njuba & the Electoral Commission (Supreme Court Election Petition Appeal No. 26 of 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.* - 10 *1980.* The author expresses the view that the court must formulate its criteria for 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. - 15 The distinguished author states;

*"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.*

20 *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* 25 *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 30 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 35 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."


- 5 I have considered the various positions advanced which has been extremely helpful in enabling me formulate my criteria. I have studied the language used 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 - 10 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 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 15 invalidation as a consequence for non compliance.

I am fortified in my mind by the draftsman's deliberate intent for strict 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 20 where the order will not apply, and (4) the consequences for non compliance.

This by no means point to an advisory or permissive intent.

In light of the above, I find that the suit abates for failure by the plaintiff to take out summons for directions in accordance with Order 11A rule 1(2) of the Civil Procedure (Amendment) Rules. It is worth noting that while it abates the party

- 25 is to file a fresh suit subject to the law of limitation in accordance with Order 11A rule 1 (7). - I, consequently, make the following orders: - 1. Civil Suit No. 0612 of 2023 abates. - 2. Each party bears its own costs. - Dated, signed and delivered electronically this 15th 30 day of May, 2025.


Susan Odongo

JUDGE