[2024] UGCommC 280

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **COMMERCIAL DIVISION CIVIL SUIT NO. 877 OF 2021** FRANCIS XAVIER SSEMPIRA:::::::::::::::::::::::::::::::::::: VERSUS **ALINE NABAMI KABOY:::::::::::::::::::::::::::::::::::: BEFORE HON. LADY JUSTICE ANNA B. MUGENYI RULING ON A PRELIMINARY POINT OF LAW** During the hearing of this case on the 2^nd of November 2021, Counsel for the

Defendant raised a preliminary objection under order XIA rule 2 of the Civil Procedure Rules(CPR) as amended for orders that the Court declares that the Plaintiff's failure to take out summons for directions is an illegality and that the suit abates with costs to the Defendant.

## **BACKGROUND**

On the 10^th December 2021, Plaintiff filed this suit against the Defendant for breach of contract claiming a recovery of USD 91,161,31 CAD (Canadian Dollars Ninety-One Thousand One Hundred Sixty-One Three One cents), general damages, interest thereon, and costs of the suit.

During the hearing of the case on the 7^th of September, 2023, the matter was adjourned for scheduling on the 19^th of October, 2023, and by consent of the parties to the 2^nd, of November, 2023. During scheduling on 2^nd November 2023, the Defendant raised a preliminary objection under Order X1A of the CPR as amended claiming that the Plaintiff failed to file summons for direction within 28 days and thus the suit abated. This court directed the parties to file written submissions for the ruling now being made.

#### REPRESENTATION

The Plaintiff was represented by M/s Twesigye, Asiimwe Solicitors & Advocates whereas the Defendant was represented by M/s Makasi & Co. Advocates.

#### **SUBMISSIONS**

Counsel for the Defendant submitted that there is an issue with the validity of the instant suit since the Plaintiff had not taken out summons for directions within 28 days under Order XIA Rule 2 of the CPR as amended which makes it mandatory otherwise the suit abates and in this case the 28 days since the last reply had lapsed. The Defendant submitted that summons for directions were taken out on the 10^th of August, 2022 which was 6 months after the filing of the rejoinder to the written statement of defense on the 15/2/2022 and a hearing notice was extracted thus the said suit abated under order X1A rule 6 of the CPR as amended. The Defendant submitted that Order 17 Rule 4 & 5 of the CPR as amended vests a judicial officer hearing a matter with the discretion and power to decide a suit immediately when a party to whom time has been given fails to produce his evidence, thus suits that fall under rule 5 after 8 weeks of the rejoinder abate and the remedy is bringing a fresh

suit.

He contended the summons for directions is mandatory and hence the failure to take them out is an illegality which when brought to the attention of the court overrides all that has been pleaded in this suit including admissions if any, and the remedy once a suit abates as per Order XIA Rule 6 of the Civil Procedure Rules as amended is to file a fresh suit subject to the law of limitation. She relied on the case of Musoke Mule & Anor v Kalumba James Revision Cause No.09/2019, where it was held on pages 8 and 15 that:

"Where issues both of law and of fact arise in the same suit and court is of opinion that the case or any part of it may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. Further that a court of law cannot sanction what is illegal and illegality once brought to the attention of court overrides all questions of pleading, including any admission made thereon."

Counsel for the Plaintiff submitted that when the Plaintiff filed a rejoinder/ reply to the defense, a copy of the summons for direction was also submitted to be endorsed

by the court, however, after following up for a signed copy, they were informed by the then Deputy Registrar Her Worship Nabakooza Flavia K to use the format that she had provided, but there is no evidence to prove the time of submission of the copy of summons for directions for endorsement as is the practice since it is not a document received by court but rather extracted from court. Counsel submitted that

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the summons for directions was finally endorsed/signed on the 10^th, of August 2022 as seen attached on the court record, the parties appeared on 20^th September 2022, the matter was adjourned to 27^th February 2023 and it was then forwarded to the judge for scheduling.

Counsel relied on the cases of Kagimu Moses Gava & 7 Ors v Sekatawa Muhammad & 11 Ors Civil Appeal No. 25 of 2020 quoted in the case of Gama Distillers Ltd v Bikanza Ezra Civil Suit No. 060 of 2021, where Hon. Lady Justice Olive Kazaarwe Mukwaya while interpreting Order XIA Rule 2 stated that:

"It is this court's opinion that the intention of the framers of order XIA rule 1 of the Civil Procedure Amendment Rules, 2019 was to mitigate the delays and inefficiencies brought on by the actions of officers of court and the parties in civil proceedings. In order that these rules achieve the desired objective, a holistic approach and judicious approach to their application should be adopted by the courts."

Counsel for the Plaintiff averred that in the case of Gama Distillers Ltd v Bikanza Ezra (supra), Hon Justice Vincent Wagona while relying on the case of Kigimu Moses (supra) stated that:

"From the reading of the entire Order XIA of the Civil Procedure (Amendment) Rules, 2019, what comes to my mind is that the order was intended to speed up trials by curtailing unnecessary delays. It was not intended to be used as a sword against parties live claims by strangling all under the guise that the summons for directions procedure was not strictly adhered to... Further that in some circumstances it would not serve any great purpose to have the suit abated under Order XIA Rule 2 and 6, yet later parties can file the same claims."

Counsel for the Plaintiff averred that the Plaintiff has put in effort to have the matter prosecuted despite some delays that are beyond their control, the parties have filed almost all the trial documents including the joint scheduling memorandum, trial bundles and witness statements, and the matter is at the stage of scheduling. It would, therefore, be unfair to deem the matter abated simply because it did not adhere strictly to the summons for directions procedure, thus the court should handle this objection judiciously for the needs of justice to be met.

In rejoinder, Counsel for the Defendant submitted that the cases that Counsel for the Plaintiff relied on, that is, Kagimu Moses Gava(supra) and Gama Distillers Ltd v Bikanza Ezra (supra) where it was held that Order XIA was intended to curtail


delays of trials and that it was not to be used as a sword against parties has facts that are distinguishable from this case as indicated at page 6 of the judgment, and stated that:

"In the matter before me, the plaintiff extracted summons for directions on the 9^th day of September 2021 where the same was scheduled for directions before the Registrar on the 13^th day of December 2021. The summons was not served and on the 13^th day of December 2021 when the matter came up before the Registrar for directions none of the parties or the lawyers were present and the registrar forwarded the matter to the judge."

Counsel for the Defendant submitted that the facts in that case are different from the instant case because the summons were taken out by the Plaintiff in time, endorsed in time by the Registrar who immediately gave a hearing date, the 13^th, December 2021 and the only impediment was that the summons was not served on the same date. However, in this instant case, there is no evidence that the summons for directions was extracted in time and served, but only that the Plaintiff took out summons for directions after 6 months which were also not served and thus it is an illegality. They submitted that the hearing notice was what was taken out on 15/2/2022 after filing a rejoinder to the written statement of defense as the last pleading, and that from that time up to 10^th August 2022 summons for directions had not been taken out. They submitted that according to paragraph 2 of the Plaintiff's submissions in reply to the preliminary objection, counsel for the Plaintiff admitted that "unfortunately, there is no evidence to prove the time of submission of the copy of the summons for direction for endorsement as the practice."

Counsel for the Defendant averred that a court of law cannot sanction what is illegal and an illegality once brought to the attention of the court overrides all questions of pleadings including any admission made thereon.

#### **RULING**

The issues for determination by this Court are:

#### 1. Whether Civil Suit No 877 of 2021 abated? 2. What are the available remedies?

Issue 1

## Whether Civil Suit No. 877 of 2021 abated?

I have considered the submissions of both parties in the making of this decision.

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delays of trials and that it was not to be used as a sword against parties has facts that are distinguishable from this case as indicated at page 6 of the judgment, and stated that:

"In the matter before me, the plaintiff extracted summons for directions on the 9^th day of September 2021 where the same was scheduled for directions before the Registrar on the 13^th day of December 2021. The summons was not served and on the 13^th day of December 2021 when the matter came up before the Registrar for directions none of the parties or the lawyers were present and the registrar forwarded the matter to the judge."

Counsel for the Defendant submitted that the facts in that case are different from the instant case because the summons were taken out by the Plaintiff in time, endorsed in time by the Registrar who immediately gave a hearing date, the 13^th, December 2021 and the only impediment was that the summons was not served on the same date. However, in this instant case, there is no evidence that the summons for directions was extracted in time and served, but only that the Plaintiff took out summons for directions after 6 months which were also not served and thus it is an illegality. They submitted that the hearing notice was what was taken out on 15/2/2022 after filing a rejoinder to the written statement of defense as the last pleading, and that from that time up to 10^th August 2022 summons for directions had not been taken out. They submitted that according to paragraph 2 of the Plaintiff's submissions in reply to the preliminary objection, counsel for the Plaintiff admitted that "unfortunately, there is no evidence to prove the time of submission of the copy of the summons for direction for endorsement as the practice."

Counsel for the Defendant averred that a court of law cannot sanction what is illegal and an illegality once brought to the attention of the court overrides all questions of pleadings including any admission made thereon.

## **RULING**

The issues for determination by this Court are:

- 1. Whether Civil Suit No 877 of 2021 abated? - 2. What are the available remedies?

Issue 1

Whether Civil Suit No. 877 of 2021 abated?

I have considered the submissions of both parties in the making of this decision.

#### Order 6 Rule 28 of the CPR as amended provides that:

"Any party shall be entitled to raise by their pleading any point of law, and any point so raised shall be disposed of by the court at or after the hearing except that by consent of the parties, or by order of the court on the application by either party, a point of law may be set down for hearing and disposed of at any time before hearing."

Therefore, it is trite law that points of law can be raised at any stage of the proceedings. (Mathias Lwanga Kaganda v UEB Civil Suit No. 124 of 2003).

The requirement for extracting summons for directions is provided for under Order XIA Rule 1(2), (3) & (6) of the CPR as amended thus:

(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 referred to in rule 18(5) of Order VIII of these Rules.

(3). The summons in sub rule (2) shall be returned within fourteen days from the date they are taken out.

(6). If the plaintiff does not take out a summons for directions in accordance with sub rules (2) or (6), the suit shall abate."

In the instant case, the suit was instituted by way of a plaint filed on 10^th December 2021, the written statement of defense and counterclaim was filed on 31^st January 2022 and the reply to the written statement of defense and counterclaim was filed on the 15^th of February, 2022 while the summons for directions was extracted on the 10^th of August 2022 which is more than five months after the last pleading was filed. The summons for directions was therefore filed out of time and therefore contravened the 28-day requirement under Order XIA rule 2 of the CPR as amended.

Counsel for the Plaintiff submitted that they had filed a copy of the summons for direction to be endorsed by the Court together with the reply to the written statement of defense and counterclaim and while following up for the signed copy were advised to follow the format attached on the Court record, and that the Deputy Registrar Her Worship Nabakooza Flavia K finally signed and endorsed a copy of the summons for directions on 10^th August 2022 and a hearing notice issued on the 4^th of July, 2023.

It is important to note that the said initial copy of the summons for direction the Plaintiff referred to cannot be traced on the Court case file and neither is it uploaded


on ECCMIS thus there is no evidence that summons for direction were extracted on the 15^th of February 2022.

Courts have tried to analyze the spirit behind Order X1A rule 1 and in the case of Kagimu Moses Gava & others v Sekatawa Muhammed & others Miscellaneous Appeal No 25 of 2020 Lady Justice Olive Kazaarwe Mukwaya rightly stated:

"The intention of the framers of Order XIA rule 1 of the Civil Procedure Amendment Rules 2019 was to mitigate the delays and inefficiencies brought on by the actions of officers of court and the parties in civil proceedings. In order that these rules achieve the desired objective, a holistic and judicious approach to their application should be adopted by the courts''

Further, in the case of Seruwu Jude v Swangz Avenue Ltd HCCA No. 0039 of 2021, Justice Mubiru stated that:

"The automatic abatement of suits under Order 11A Rule (6) when invoked and applied automatically will be counterproductive because under Order 11A Rule (7), where a suit has abated the plaintiff may, subject to the law of limitation, file a fresh suit. The court will then be inundated with repeat suits over the same subject matter. Consequently, the suit shall be abated by the court under Order 11A Rule (6) only when it is satisfied that such an order is necessary to save the time and expense of the trial then the plaintiff's suit cannot progress with the dispatch which the circumstances of the suit and the available court resources require. This will inevitably be determined on a case-by-case basis after hearing the parties."

In the circumstances of this case stated earlier and following the strict interpretation of Order XIA rule 6 of the CPR as amended, this instant suit automatically abated for failure to extract summons for directions within 28 days. Not only did the Plaintiff fail to show that it took out summons for directions at the time the reply to the written statement of defense and counterclaim (i.e. 15/2/2022), he did not adduce any concrete evidence to explain why it took all those months (i.e. 6 months) to have the summons for directions taken out and endorsed by the Court.

It is the opinion of this Court that while it is advisable that a holistic and judicious approach must be taken in matters of this nature, it is very important that rules regarding timelines are strictly adhered to if the intention of the framers of Order XIA rule 1 of the Civil Procedure Amendment Rules 2019 to mitigate the delays and inefficiencies brought on by the actions of officers of court and the parties in civil proceedings is to be upheld and effected.

Order XIA rule 1 of the Civil Procedure Amendment Rules 2019 was not enacted in vain and is a serious case management tool that has been adopted by this Court to deal with backlog and also to manage lawyers and litigants who are not interested in prosecuting their cases in time thereby wasting Court's time as well.

Further, close scrutiny of the summons for direction issued on 10/8/2022 shows that the joint scheduling memorandum, witness statements and trial bundles that were ordered to be filed between 8^th August 2022 and 12^th September 2022 were actually respectively filed on the 27^th February 2023 (joint scheduling memorandum and Plaintiffs' witness statements and Plaintiff's trial bundle), 10^th of February 2023 (witness statement of the Defendant) and 1^st of March 2023 (Defendant's trial bundle). This evident laxity in compliance with Court directions, 5 to 6 months later, further serves to confirm the lack of seriousness especially on the part of the Plaintiff which kind of laxity this Court shall not condone.

**Issue 2: What remedies are available for the parties?**

Given the finding of this Court in Issue 1 above, the preliminary objection raised by the Defendant is upheld and civil suit no. 877 of 2012 abates accordingly.

Costs are awarded to the Defendant.

Omb. Julie

HON. LADY JUSTICE ANNA B. MUGENYI DATED...................................