[2024] UGHC 1003

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT ARUA

# CIVIL SUIT NO: 0016 OF 2020

# LAND REGISTRY.

10 1. REMO ROBERT::::::::::::::::::::::::::::::::::::

### **VERSUS**

- KOBOKO DISTRICT LOCAL GOVERNMENT 1. - KOBOKO MUNICIPAL COUNCIL 2. - ASSOCIAZIONE CENTRO AIUTI VOLUNTARYI - 15 **BOBOLI FRANCIS** - UBA YANGU ALIMAKODRA - **SUMA ESBON** - YAKANI CHARLES 7. - AMULE SAMUEL

9. NIGO ABINIA 20

10. REMO ODRIA::::::::::::::::::::::::::::::::::::

### RULING ON PRELIMINARY OBJECTION

## BEFORE HON. JUSTICE COLLINS ACELLAM

### **Brief Introduction**

- The Plaintiff filed this suit against the defendants for Trespass to land, fraud, an order of vacant 25 possession, eviction order from the suit land situated at Nyakita Cell, Amunupi Ward, West Division, Koboko Municipality council in Koboko District. When the suit came up for hearing on the 18^th October 2023, counsel for 3^rd and 10^th defendants raised a preliminary Objection on a point of law that this suit before this honourable court had abated and there was therefore 30 nothing to entertain before the court.

# **Submission of the Defendants**

In respect to the P. O raised by the 3^rd and 10^th defendant, the defendants submit that this suit has abated for reasons that it was filed on the 14^th August 2020, service of summons effected, whereupon the 3^rd to 10^th defendants filed their written statement of defense on the record on

the 31^st August 2020 and for three years the plaintiff took no bother to follow up the progress 35 of the case till 18^th October 2023, absolutely no step was taken by the plaintiff to prosecute the matter and we therefore contend that the suit has abated and invite this honourable court to hold so.

$\mathbf{1}$

$\mathsf{S}$

$\mathsf{S}$ Counsel cites Order 11A rule 1(2) of the Civil Procedure (Amendment) Rules, 2019 which provides that where a suit has been instituted by way of plaint, the plaintiff shall take out summons for direction within 28 days from the date of the last reply or rejoinder.

Order 11A Rule 1 (6) of the same provides that if the plaintiff does not take out summons for directions in accordance to sub rules (2) or (6), the suit shall abate.

10 Counsel adds that there are however exceptions to taking out summons for Directions under Order XA Rule 4 (e) of the Civil Procedure (Amendment) Rules 2019 which provides that the rule applies to all actions instituted by way of a plaint except an action in which a matter has been referred for trial to an official referee or arbitrator.

Counsel submits that there is no evidence on the record that this matter was ever referred to an official referee or arbitrator as an option which would have been an exception to Order 11A 15 Rule 1 (2) of the rules wherein this suit would not have abated.

### Reply to the submission by the Plaintiff

In response, the Plaintiff states that counsel for the $3^{rd}$ , $4^{th}$ , $5^{th}$ , $6^{th}$ , $7^{th}$ , $8^{th}$ , $9^{th}$ and $10^{th}$ defendants has no locus to raise this preliminary Objection on ground of lack of instructions.

Evidence on record shows that instruction to prosecute this case is with M/S Ederu & Gama & 20 Solicitors but not M/S Kazimoto & Kawa Advocates to which the intended counsel for the defendants works. There is no evidence on record that the intended counsel for the defendants ever filed a Notice of Change of Advocates.

Counsel cites Reg 2 (1) of the Advocate (Professional Conduct) Reg S.1 267-2 which provides

that an Advocate shall not act for a client without instructions. Counsel states that on such a 25 basis, the Preliminary Objection raised is a nullity, illegal and has no force of law.

Secondly, counsel states that the plaintiff did not extract summons for Direction because the matter was for Mediation that almost reached a consent hence failure to extract summons has no effect.

#### 30 Rejoinder

In rejoinder, counsel for the defendants state that they had instructions and indeed locus to raise the preliminary Objection as Notice of Instructions was duly changed from Ederu & Gama Solicitors to M/S . Kazimoto & Kiwa Advocates which Notice was filed on court record on the 3^rd August 2021 and the same was served on the Plaintiff's counsel the very day and its Marked $`A'.$

$\mathbf{2}$

nva

Counsel adds that the plaintiff's argument that summons for direction was not extracted because 5 the matter was for mediation is absurd as there is no prove that the matter was ever referred for mediation is absurd as they have never taken part in any mediation since the matter was filed. That mere extraction of hearing notices if any does not operate as an exception to the rule that requires a party to extract summons hence the plaintiff does not fall under any exception.

#### 10 **Consideration of court**

Order 11A Rule 2 of the Civil Procedure Rules as amended provides that where a suit has been instituted by way of a plaint, the Plaintiff shall take out summons for directions within 28 days from the date of the last reply or rejoinder referred to in rule 18(5) of Order VIII of these rules.

Rule 3 provides that the summons in sub rule (2) shall be returned within 14 days from the date they are taken out. Rule 4 creates an exception to the rule. Clause (e) of rule 4 creates an 15 exception where an action in which a matter has been refereed for trial to an official referee or arbitrator.

Rule 6 provides that if the plaintiff does not take out summons for directions in accordance with sub-rules (2) or 6, the suit shall abate.

The phrase 'or (6) appear to be an error. it should be or (5) instead. Sub rule 6 is the one which 20 provides for abatement of suits.

According to the concise Oxford Dictionary, 11^th Edition (1995), the word 'Abate' in law means to quash a writ or action. it also means to put an end to a nuisance ... the said dictionary defines quash at page 1122 as an annual, reject as not valid by a legal process.

According to Mozley & Whiteley's law Dictionary, 11^th Edition (1993) at page 1, Abatement of 25 an action or a suit takes places when some supervenient cause, one of the parties is no longer before court.

Under the Civil Procedure (Amendment) Rules, 2019, the supervening because here would be the failure to take out summons for directions under Order XIA rule 2. The exceptions to this

rule include where a case has been referred for trial to an official referee or Arbitrator. 30

Relying on the definition of a referee in the Black's law Dictionary 5^th Edition page 1151 and the definition of mediation and mediator under the Judicature (Mediation Rules) No. 10 of 2013, the court in MA. No. 150 of 2020, Carlton Douglas Kasirye Vs Sheena Ahumuza Bagaine a.k.a Tash held that;

$\frac{1}{\sqrt{2}}$

- 'It is clear to me that by virtue of the role played by a Mediator, he or she performs the function $\mathsf{S}$ of an official referee of the court. The Court refers a pending cause to him or her to preside or hear and to report to court depending on whether or not an agreement is reached towards an amicable resolution of the dispute that is the subject of the cause pending before the court. - The person is exercising Judicial powers for a specific purpose. A court accredited mediator therefore fits well within the meaning of an official referee as used under Order 11A rule 1 (4) 10 (e) of the Civil Procedure Rules as amended 2019.

It follows therefore that where a matter is referred by the court for mediation, the plaintiff would not be expected to take out summons for directions within the 28 days provided for under subrule (2) of rule 1 of Order 11A.

The suit would therefore fall under the exceptions provided under sub-rule (4) 15

On record, there is a mediation reference on record, much as the current lawyers did not participate in it, it does not negate the fact that the matter had been referred for mediation. Court however cannot close its eyes on the 3 years spent before action could have been taken by the plaintiff to ensure a process /step and how far settlement had progressed, that was wrong on the side of the plaintiff, it does not do away with the exception though.

In Kagimu Moses & Ors Vs Sekatwawa Muhamed & OR's. Misc. Appeal No. 25 of 2020, Lady Justice Olive Kazaarwe Mukwaya said;

The Intention of the framers of Order 11A rule 1 of the Civil Procedure Rules as amended of 2019 was to mitigate the delays and inefficiencies brought on by the actions of officers of court and the parties in civil proceedings.

I find that the suit has not abated and I hereby overrule the objection of counsel for the defendants as there is evidence on court record that the suit is not dormant. Costs shall be in the Cause.

#### I SO ORDER.

$40$ day of Defolser 2024 Delivered at Arua this .........


**JUDGE**

$20$

25