Kalemesa v Kaggwa and 7 Others (Miscellaneous Application 776 of 2023) [2024] UGHCLD 145 (24 May 2024)

## 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(LAND DIVISION)**

## **MISCELLANEOUS APPLICATION NO. 776 OF 2023**

## **(ARISING FROM CIVIL SUIT NO. 389 OF 2022)**

## 10 **KALEMESA SAMUEL WILSON ::::::::::::::::::: APPLICANT/ PLAINTIFF**

## **VERSUS**

## **1. KAGGWA CHRISTOPHER CHRIS**

## **2. KIJJWA STUART**

Administrator of the Estate of the Late Saulo Kikujuko)

## 15 **3. BATALAGAINE HENRY**

## **4. THE COMMISSIONER LAND REGISTRATION**

# **5. UGANDA NATIONAL ROADS AUNTHORITY (UNRA)**

# **6. KAMPALA CAPITAL CITY AUNTHORIY (KCCA)**

# **7. SSALI BADRU**

# 20 **8. MIRIAM NAMUTEBI :::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. LADY JUSTICE IMMACULATE BUSINGYE BYARUHANGA RULING**

## *Introduction*

25 This application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act, and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules seeking the following orders;

- 5 1. The Order made by Hon Lady Justice Immaculate Busingye Byaruhanga dated 27th March 2023 abating HCCS No. 389 of 2022 be reviewed and set aside - 2. HCCS No. 0389 of 2022 be heard interparty. - 3. The costs of the applicant be in the cause. - 10 This application is supported by an affidavit in support deposed by **Atwine Allan Amanya**, a Legal Assistant working with M/s Barungi, Baingana & Co Advocates, Counsel for the applicant, which was sworn on 20th April 2023. The grounds of the application are laid out in the application and the affidavit in support of the application but briefly they are the following; - a. That the applicant on the 16th 15 day of May 2022 file HCCS No. 389 of 2022 against the respondents for recovery of land comprised in Kyadondo Block 246 plots 2371, 2372, 2372, 2374 and 2375 (formerly plot 1916 land at Kyeitabya) and all the respondents were serve and filed their respective defences. - 20 b. That the applicant also filed Miscellaneous Application No. 1117 of 2022 for a temporary injunction which was disposed in the month of December 2022 and the directions were to be given in future course of hearing of HCCS No. 389 of 2022. - c. That the requirement of taking out summons for direction within twenty-eight - 25 (28) days from the last date of reply did not apply to this matter and the applicant was never summoned to show cause why HCCS No. 389 of 2022 should not abate before the Order was made on 27th day of March 2023. - d. That the applicant took another essential step and filed for the summons for direction on the 19th day of January 2023 and the same remained pending until 30 HCCS No. 389 of 2022 was abated by this Honorable court.

- 5 e. That before the applicant could be heard on the summons for directions, HCCS No. 389 of 2022 was abated by the Order of the Trial Judge and the same should be set as it will make a wrong precedent of this Honorable Court. - f. That the 28 days provided for in the law as the time within which to take out summons for directions is not mandatory and this honorable court can exercise 10 its discretion and deal with the suit in all respects to avid repeat of suits over the same subject matter.

g. That the main HCCS No. 389 of 2022 was abated in the absence of the applicant and their respective advocates and there is no affidavit of service on court record to prove that the applicant was served with the hearing notice to 15 require the applicant's attendance in court when the matter was abated on the 27th day of March 2023.

- h. That the parties had never appeared before the Trial Judge since summons for directions had not yet been closed before the Deputy Registrar. - i. That the applicant was denied a right to a fair hearing and be heard before this 20 Honorable Court on the matters relating to summons for direction and there was a justified reason as to why summons were not issued by this Honorable Court. - j. That it is the duty of this Honorable Court to subject the entire evidence on record and came up with its own independent findings and at the time the 25 Order of this Court was made, the applicant was not before this court and or given a chance to be heard. - k. That the applicant will suffer irreparable loss and damage of the order of this Honorable Court is not set aside since it was procured without the applicant being given an opportunity of being heard. - 30 l. That the respondents' interest will not be prejudiced I this application for review and setting the abatement order aside is not granted.

- The 2 nd and 3rd 5 respondents filed their affidavits in reply deposed by **Kijjwa Stuart** and **Batalagaine Henry Frank** respectively**,** wherein it was briefly stated as follows; - a. It is contended that the applicant's name was cancelled by the 4th respondent from the register of the suit and following the applicant's alleged illegalities 10 committed on the suit land and his registration on the title in error. - b. That subsequently, the certificate of title was reinstated by the 4th respondent in the names of the 2nd respondent's late grandfather Saulo Kikujuko and later was registered in the names of the Administrators of his Estate. - c. It was further contended that on 27th March, 2023, the Hon. Lady Justice 15 Immaculate Busingye Byaruhanga delivered her ruling abating the main suit for failure by the applicant to take out summons for directions within the legally required 28 days from the date of the last reply. - d. It is also contended that once the suit abates, the same cannot be resurrected by way of review but rather one can only file a fresh suit if he or she has merit 20 subject to the law of limitation. - e. It was also contended that there was nothing on ECCMIS to show that there was a pending application hence the attached application was back dated and filed long after the main suit abated on 5th July 2022.

# *Background to this application*

- 25 The plaintiff filed the main suit against the defendants vide H. C. C. S No. 389 of 2022 on the 11th day of May 2022 at 10:10 am seeking the following orders; - *a. A declaration that the Plaintiff is the legal, equitable and bona fide owner of the suit land comprised in Kyadondo Block 246 Plots 2371, 2372,2373,2374 & 2375 (Formerly Plot 1916 land at Kyeitabya).*

- *b. A declaration that after the distribution of the estate of the Late Saulo Kikujuko by the Luganda lukiiko in 1963 which was confirmed by the office of the Administrator General, the said estate was wound up and there was no estate in law for which the 1st and 2nd Defendants could acquire letters of* 10 *administration to administer.* - *c. A declaration that the cancellation of the Plaintiff's name on the mailo Register based on the gazette dated 1983 without notice to the Plaintiff was null and void abnitio.* - *d. A declaration that the registrations of the Late Saulo Kikujuko on the mailo* 15 *register under instrument No.42969 on an unknown date for an estate that had been fully distributed and wound up was fraudulent and illegal.* - *e. A declaration that the 1st, 2nd, 3rd, and 4th defendants were fraudulently and illegally registered on the Mailo Register of the suit land comprised comprised in Kyadondo Block 246 Plots 2371, 2372,2373,2374 & 2375* 20 *(Formerly Plot 1916 land at Kyeitabya).* - *f. An Order cancelling and setting aside the Instrument Number that purportedly registered the 1st, 2nd, 3rd and 7th Defendants on the register for land comprised in Kyadondo Block 246 Plots 2371, 2372), 273, 2374 & 2375 (Formerly Plot 1916 land at Kyeitabya).* - 25 *g. An Order cancelling and setting aside the Instrument numbers subdivisions of the suit land comprised in Kyadondo Block 246 2372, 2373, 2374 & 2375 (Formerly Plot 1916 land at Kyeitabya).* - *h. A Declaration that the suit land was illegally and or erroneously subdivided and transferred from the name of the Plaintiff as the rightful owner into the 1 st, 2nd & 3* 30 *rd Defendants' names.*


- 5 *i. An order restraining the plaintiff as the registered proprietor on Block 246 plot 1916 at Kyeitabya.* - *j. An order restraining the 5th and 6th defendants from effecting compensation payment to the 1st, 2nd, 3rd and 7th defendants.* - *k. A Permanent injunction against the Defendants, their agents, servants,* 10 *employees from subdividing, transferring, developing, wasting, making any payments from the 5th & 6th Defendants to 1't, 2nd, 3'd and 7th Defendants and or dealing with the suit land in any way that is prejudicial to the Plaintiff's interest.* - *l. General damages.* - 15 *m. Interest thereon.* - *n. Costs of this suit.* - *o. Any other relief this Honorable Court shall deem fit.*

In the facts constituting the cause of action, the plaintiff contended that the suit land was created and or is a subdivision of Kyadondo Block 246 plot 88 land at Kyeitabya formerly registered in the names of Saulo Kikujuko on 16 20 th October 1937 vide

- instrument number 42969. It was further contended that before the demise of the Late Saulo Kikijuko, he bequeathed and distributed his land amongst his three sons to wit Abusolumu Mukasa (45 acres), Israeli Kiddu (540 acres) and Ezira Christopher Munyegenyo (10 acres). - 25 The plaintiff went ahead to aver that the estate of the late Kikujuko was dealt with by the office of the Administrator General, wherein after the children of the late Kikujuko subdivided plot 88 into plot 92 and 93 whereby Ezra Munyegenyo got registered on plot 93 and Israel Kiddu acquired plot 92 and subsequently, the plaintiff acquired plot 92 from Israel Kiddu totaling 40 acres.

- 5 The plaintiff further contended that for the last 49 years, the plaintiff has dealt with his land by way of subdivision and transfer to third parties unchallenged leaving a residue of plot 1916 totaling to 8.154 hectares of the suit land. The plaintiff proceeded to state that the 3rd defendant who has since transferred his interests to the 7 th defendant lodged a caveat on the suit land as a kibanja owner. Furthermore, the plaintiff stated that in 2015, the 1st, 2nd, 3rd and 8 10 th Defendants, while conniving with the 4th defendants lodged caveats on the suit land, wherein the 1st and 2nd defendants claimed to have inherited the suit land from the late Saulo Kikujuko as grandchildren and administrators of the estate, well aware that the estate had already been distributed. - The plaintiff went on to aver that the 8th 15 defendant lodged a caveat on behalf of the Administrator General's office in collusion with the 1st and 2nd defendant with an intention to frustrate the sale transaction between the plaintiff and the 6th defendant.

It is also the contention of the plaintiff that the 5th defendant approached the plaintiff to compensate him for part of the suit land which was affected by the Jinja Express

20 Highway project, however, the compensation could not be effected because of the subsisting caveats. It was also averred that as a result of collusion between the 1st and 4th defendant and without hearing from the plaintiff, the title of plot 916 registered in the names of the Late Saulo Kikijjuko was canceled on 12th November 2021and subsequently on 15th November 2021, the 1st and 2nd defendants applied for a special certificate of tile claiming that the original title was misplaced in the 2nd 25 defendant's residence.

It was also contended by the plaintiff that in a systematic move to deprive the plaintiff of his land, the 1st, 2nd, 3rd and 8th defendants withdrew their caveats which were lodged on the suit land and the 1st and 2nd defendants applied to be registered 5 as the administrators of the estate of the late Kikujjuko and the same was granted on 20th November 2021.

The plaintiff also averred that upon the registration of the special certificate, the 1st and 2nd defendants subdivided the suit land into plots 2371, 2372, 2373, 2373 and 2375 (formerly plot 1916) and subsequently, the 1st and 2nd defendants transferred plot 2374 into the names of the 7th defendant on 7 10 th April 2022.

It is the plaintiff's averment that the 1st and 2nd defendants are not beneficiaries of the estate of the late Israel Kiddu and neither does the suit land fall within the estate of the deceased since the late Israel Kiddu sold his interest to the plaintiff.

The plaintiff took out summons to file a defence and consequently the defendants 15 filed their written statements of defence on ECCMIS, denying the contents of the plaint. The 1st and 2nd defendants filed their joint written statements of defence on 30th May 2022 at 3:49pm, the 3rd and 7th defendant filed their joint written statement of defence on 7th June 2022 at 3:10pm, the 4th defendant filed their written statement of defence on 31st May 2022 at 3:55pm, 5th the defendant filed their defence on 27th May 2022 at 11:50am and the 6th defendant filed their defence on 27 20 th May 2022 at

1:02pm. The 8th defendant has not filed their written statement of defence and neither has she applied to this court for an extension of time within which to file her defence.

On the 24th day of March 2023, Counsel for the 3rd defendant M/S Signature & Co Advocates wrote a letter informing court that the plaintiff had not taken out 25 summons for directions contrary to Order XIA rule 1 (2) of the Civil Procedure Amendment Rules 2019 and prayed that the suit be abated. On 27th March 2023, by the order of this court, the main suit abated for failure to take out summons for directions contrary to Order XIA rule 1 (2) of the Civil Procedure (Amendment) Rules, 2019.

5 Being dissatisfied with the decision of court, the applicant filed this application seeking the court to review and set aside its decision to abate Civil Suit No. 389 of 2022.

#### *Representation*

The applicant was represented by Counsel Barungi Richard and Mwesiga Apollo, while the 2nd respondent was represented by Counsel Wandera Moses, the 3rd 10 respondent was represented by Counsel Nyonyintono Asuman and Counsel Wandera Moses, the 4th respondent was represented by Counsel Arinaitwe Sharon and the 6th respondent was represented by Counsel Byaruhanga Denis.

#### *Submissions*

- 15 Counsel for the respondents jointly raised two preliminary objections. Firstly, that the suit having abated, the only available remedy to the applicant is to file a fresh suit. It was Counsel Wandera's submission that this application is incompetent before court contrary to Order XIA rule 1 sub rule 6 and 7 of the Civil Procedure Amendment Rules of 2019 since the law makes it mandatory for the applicant to file - 20 a fresh suit where the initial suit abated for failure to take out summons for directions within 28 days from the date of the last reply.

Counsel Wandera went ahead to submit that the applicant ought to have taken out summons for directions by 15th July 2022, however, by the time the suit abated, the applicant had not yet taken out summons for directions and the applicant only belatedly took out summons for directions on 19th 25 January 2023 and as such, there is no error or mistake on the face of the record to warrant the grant of this application. It was Counsel's submission that by the time the suit abated, the applicant had not taken out summons for directions.

5 In reply, counsel for the applicant, Mr. Mwesiga submitted that preliminary objections can only be raised on matters of pure law and they cannot be raised where there is need of evidence. In addition, Counsel Mwesiga argued that preliminary objections cannot be raised when the matter concerns judicial discretion. Counsel went ahead to submit that as to whether the matter has abated or not is discretionary 10 and as such cannot be raised as a preliminary objection.

Counsel Mwesiga went ahead to argue that Order XIA of the Civil Procedure (Amendment) Rules has been interpreted by the High Court as discretionary in the case of **George Waiswa versus Army for Africa Limited & ors H. C. C. S No. 127 of 2020** and **Serugo George versus Swangz Avenue Limited HCCA No. 39 of**

15 **2021.** Mr. Mwesiga submitted that the above mentioned are to the proposition that the word shall that is used under Order XIA is discretionary and hence the preliminary objection cannot be raised in such matters where the court has to exercise discretion. It is counsel's argument that the same court has the discretion to reinstate the abated suit and since the law does not provide for a procedure, the 20 applicant resorted to Order 52 of the Civil Procedure Rules.

It is trite law that a preliminary point of law can be raised at any time during the proceedings of court. In the case **Mukisa Biscuit Manufacturing Co. Ltd versus West End Distributors (1969)1 EA 696** as cited by Counsel for the applicant, it was held that*, "In so far as I am aware, a preliminary objection consists of a point*

25 *of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. A preliminary objection is in the nature of what used to be demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side ae correct. It cannot be raised if any fact has to be ascertained or if what is sought is* 30 *the exercise of judicial discretion."*

**10 |** P a g e - 5 The crux of the matter before court relates to whether an abated suit can be reinstated by way of an application for review. While counsel for the respondents submitted on this issue by way of raising a preliminary point of law, the same forms part and parcel of the merits of this application and as such, my determination of the merits of the application shall equally resolve the preliminary objections. - 10 On of the issues for consideration is *whether this court can review its decision to abate HCCS 389 of 2022 and set aside the same?* It should be noted that the applicant in the Notice of Motion brought under section 98 of the Civil Procedure Act and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules prayed that the order of this court dated 27th March 2023 be reviewed and set aside. This is in respect of the order - 15 for abatement of HCCS No. 389 of 2022. **Section 82 of the Civil Procedure Act** governs applications for review of court orders/ Judgment provides as follows;

*Any person considering himself or herself aggrieved;*

- *a) By a decree or order from which an appeal is allowed by this Act, but rom which no appeal has been preferred; or* - 20 *b) By a decree or order from which no appeal is allowed by this Act, may apply for a review of Judgment to the court which passed the decree or made the order, and the court may make such orders on the decree or order as it thinks fit.*

The provisions above are replicated in **Order 46 of the Civil Procedure Rules** 25 which amplifies on the law by providing for the considerations for the grant of an application for review. It provides as follows;

1. **Application for review of Judgment**

**(1)***Any person considering himself or herself aggrieved*

- 5 *(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or* - *(b)By a decree or order from which no appeal is allowed and who from the discovery of new and important matter of evidence which, after the exercise of due diligence was not within his or her knowledge or could* 10 *not be produced by him or her at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason desires to obtain a review of the decree passed or order made against him or her, may apply for a review of Judgment to the court which passed the* 15 *decree or made the order.*

The considerations were restated in *Re-Nakivubo Chemists (U) Limited (1979) HCB 12,* where Manyindo J (as he then was), held that there are three cases in which a review of a Judgment or orders is allowed and those are;

- a. *Discovery of a new and important matter of evidence previously overlooked* 20 *by excusable misfortune.* - b. *Some mistake apparent on the face of the record.* - c. *For any other sufficient reasons, but expression 'sufficient' should be read as meaning sufficiently analogous to (a) and (b) above.*

In the grounds for the application, the applicant contended that he was denied a fair 25 hearing in relation to the summons for directions since the applicant was never summoned by court to show cause why HCCS No. 389 of 2022 should not abate before the order was made on 27th March 2023 and as such the same was an error apparent on the face of the record.

## 5 In the case of *Edison Kanyabwera versus Pastori Tumwebaze Supreme Court Civil Appeal No. 6 of 2004,* court found that;

"*In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an error which does not require any extraneous matter to show its correctness. It must be an error so manifest and clear that* 10 *no court would permit such an error to remain on record. The error may be one of fact but it is not limited to matters of a fact and includes also error of law.*

According to the record of Court via the Electronic Court Case Management System (ECCMIS), the plaintiff filed his plaint on 11th May 2022. The 1st and 2nd defendants

- filed their joint written statements of defence on 30th May 2022 at 3:49pm, the 3rd 15 and 7th defendant filed their joint written statement of defence on 7th June 2022 at 3:10pm, the 4th defendant filed their written statement of defence on 31st May 2022 at 3:55pm, 5th the defendant filed their defence on 27th May 2022 at 11:50am and the 6 th defendant filed their defence on 27th May 2022 at 1:02pm. At the time the main - suit abated, the 8th 20 defendant had not filed her defence and neither has she to date. After 10 months of waiting for the extraction of summons for directions, Counsel for the 3rd defendant/ respondent wrote a letter on 24th March 2023, informing court that the plaintiff had not taken out summons for directions contrary to Order XIA rule 1 (2) of the Civil Procedure Amendment Rule 2019 and prayed that the suit abates. Subsequently, on the 27th 25 of March 2023, this Court made an order to abate the main suit vide Civil Suit No. 389 of 2022 in accordance with Order XIA rule 1 (2) of the Civil Procedure (Amendment) Rules, 2019.

5 **Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules 2019** provides for the taking out of Summons for Directions where a suit has been instituted by way of a plaint as follows;

*"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* 10 *rejoinder referred to in rule 18(5) of Order VIII of these Rules."* **(emphasis**

## **on the underlined and highlighted)**

The above cited provisions of the law are clear to the effect that, within 28 (twentyeight) days from the last reply, the plaintiff shall take out summons for directions least the suit shall abate. The catchword is **"shall**". Counsel for the plaintiff cited 15 two High Court cases where he submitted that the Court in **George Waiswa versus Army for Africa Limited & ors H. C. C. S No. 127 of 2020** and **Seruwu Jude versus Swangz Avenue Limited H. C. C. A No. 39 of 2021** interpreted the provisions of Order XIA (1) (2) of the Civil Procedure (Amendment) Rules to be discretionary.

- I have had the opportunity to read the above cited precedents by Counsel for the 20 Applicant and I agree with the application of the law in the said cases, however, the facts in this case are quite different and distinguishable from the cited case. In the George Wasswa case, the parties had referred their matter for mediation however, this mediation had not yet taken place by the time the suit abated. In that case, Her Lordship Florence Nakachwa made reference to the exceptions as provided for under - 25 Order XIA rule 4 (e) of the Civil Procedure (Amendment) Rules, 2019. In that case the civil suit had been referred to a mediator and there was no report on court record that such a mediation had taken place. The judge reasoned that the case could not abate when mediation had not started nor concluded and as such Order XIA rule 4 (e) applied and the case could not be abated.

- 5 In applying this rule to the facts of the instant case, I must take cognizance of the exceptional circumstances to the application of Order XIA (1) and (2). Order XIA rule 1 sub rule 4 of the Civil Procedure (Amendment) Rules, 2019 lays down exceptions to Order XIA rule 1 (2) and it states that this rule applies to all actions instituted by way of a plaint, except; - 10 *a) An action in which the plaintiff or counterclaimant has applied for a default judgment under Order XXXVI or where application for leave to file a defence under Order XXXVI is refused;* - *b) An action in which the plaintiff or defendant has applied under Order VI rules 29 or 30 or Order XV rule 2 for determination of the suit on a point or points* 15 *of law;* - *c) An action in which an order for the taking of an account has been made under Order XX;* - *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.*

Having perused the court record of the mother suit vide C. S 389 of 2023, I find that none of the above mentioned exceptions apply. I am alive to the fact that court should exercise its discretion judiciously and look at the circumstances of the case before it

25 concludes that a suit should abate. **(See Seruwo Jude versus Swangz Avenue Limited (supra).** Therefore, I shall consider the circumstances of this case as is.

According to paragraphs 3 and 4 of the affidavit in support of the application, it was deposed that the requirement of taking out summons for directions within 28 days from the last date of reply did not apply to this matter since the applicant had filed

- 5 an application for a temporary injunction which was disposed in the month of December 2022 and the directions were to be given in the future course of the hearing of the main suit. Secondly, it was deposed that the applicant was never summoned to show cause why the main suit should abate. - Firstly, the document attached as annexture 'A' under paragraph 3 which refers to 10 an application for a temporary injunction, is actually an application for an interim order. Secondly, according to the ECCMIS database, this application vide HCMA No. 1117 of 2022 was withdrawn for being overtaken by events on 7th September 2022. Whereas the ECCMIS system indicates that the application for a temporary injunction vide HCMA No. 1116 of 2022 was dismissed on 12th December 2022, the - actual Ruling by His Worship Kintu Simon Zirintusa was delivered on 26 15 th October 2022.

It is understandable that until 27th October 2022, the applicant was litigating the interlocutory application for a temporary injunction, however, what happened after that date has been inquired into by this court. Between the 27th of October 2022 and

19th 20 January 2023 when the applicant purportedly attempted to file a draft summons for directions, there are still 75 (seventy-five) or so un-accounted for days within which the applicant ought to have filed the summons for directions and yet the laxity in filing the summons for directions within this time is still unexplained and neither do the reasons advanced by the applicant lie within the exceptional circumstances 25 provided for under Order XIA 1(4) of the Civil Procedure (Amendment) Rules.

So, what happens when the plaintiff does not take out summons for directions as instructed under Order XIA 1 (2) and the exceptions laid out in XIA 1(4) do not apply? At that point the answer lies in Order XIA rule 1 sub rule 6 of the Civil Procedure Amendment Rules, 2019 and it provides as follows;

5 Sub rule 1 (6) of the Rules states; *'if the plaintiff does not take out a summons for directions in accordance with sub rules (2) or (6), the suit shall abate. (*emphasis on the underlined).

When it comes to the interpretation of statutes, the use of the word **'shall'** is often used as an imperative command, thereby indicating that the succeeding actions are 10 mandatory and not permissive. This can be contrasted with the use of the word, **'may'**, which is generally used to imply a certain degree of discretion<sup>1</sup> . The word '**interpretation**' comes from the Latin word '*interpretari,'*which means to explain, expound, comprehend or translate. The process of statutory interpretation has been defined as the process of determining the real and right interpretation of a law making body whose intentions are written out in the form of statutes.<sup>2</sup>

The starting point when interpreting statutes is the application of the *'the plain meaning rule',* which dictates that if the language of the statute is plain and unambiguous, it must be applied according to its terms. When determining how a statute is to be applied, it often comes down to considering what a particular word 20 or phrase means as used in the statute. The threshold is whether language is being

used in the 'ordinary' sense or in a narrower specialized sense<sup>3</sup> . In this case, I am faced with interpreting the meaning of the word '**shall'** as used in Order XIA 1 (2) and (6) of the Civil Procedure (Amendment) Rules. The use of the

word 'shall' and 'may' in statutes often mirrors that common usage. Ordinarily

25 . These words must be read in their

'shall' is mandatory and 'may' is permissive<sup>4</sup>

<sup>1</sup> Larry M. Eig (2014) *Statutory Interpretation: General Principles and Recent Trends;* Congressional Research Service, the Library of the Congress, Volume 97, Issue 589, of CRS report for Congress at page 10. Available at : [www.crs.gov](http://www.crs.gov/)

<sup>2</sup> V. Glaserfeld, (1983), **On the Concept of interpretation Poetics, 12 (2-3)***,* 207-218, *An Introduction to Statutory Interpretation and the role of Court with Common Law approach of legal construction at page 2.*

<sup>3</sup> Richard H. Helmholz (2017) *Statutory Interpretation- Then and Now*, Manitoba Lw Journal, Volume 41 Issue 1, pages 6-9.

<sup>4</sup> *Ibid* note 1

5 broader statutory context so as to confirm whether the ordinary meaning should be applied or a broader specialized spectrum. It should always be noted that context may trump ordinary meaning.

Following the guidance of the Supreme Court in the case of **Sitenda Sebalu versus Sam Njuba & The Electrol Commission Supreme Court Election Petition** 10 **Appeal No. 26 of 2007,** it was stated that;

*"It was stated that there is no rule of the thumb or a universal rule of interpretation, for determining if in a given statutory provision, the word 'shall' is used in the mandatory or directory sense. It was further stated that the word 'shall' may be used in a mandatory as well as in directory statutory* 15 *provision. However, it should be maintained that ordinarily, the word is used to connote a mandatory command and that it is used in a directory term only in exceptional circumstances. It was submitted that the exceptional cases are where giving the provision in issue a mandatory interpretation would lead to absurdity or would make the provision inconsistent with the Constitution or* 20 *the intention of the Legislature or would cause a miscarriage of justice."*

It is my considered opinion that, unless the exceptions laid out in Order XIA rule 1 sub rule 4 apply to the plaintiff, extraction of summons for directions in accordance with Order XIA rule 1(2) is mandatory, failure of which leads to the abatement of the suit.

The **Black's Law Dictionary, 11th** 25 **Edition, page 3,** defines abatement as, *'the act of eliminating or nullifying. The suspension or defeat of a pending action for a reason unrelated to the merits of the claim.'*

It is my understanding that the draftsmen's insertion of the word 'shall' in Order XIA 1(2) was intended to ensure that litigants extract summons for directions as a 5 must save for when they were faced with exceptional circumstances laid down under sub rule 4, otherwise leaving wiggle room in the application of this provision would cause an absurdity and defeat the intention of the Rules Committee.

Therefore, I maintain my decision and reasoning for abating C. S 389 of 2022 for failure to extract summons for directions within 28 days from the last reply in 10 accordance with Order XIA 1 (2) of the Civil Procedure Amendment Rules. The applicant has failed to prove any exceptional circumstances under Order XIA rule 1 sub rule 4 of the Civil Procedure (Amendment) Rules of 2019.

The law is very clear under sub rule 7 on the plaintiff's form of recourse when a suit abates. Sub rule 1 (7) provides that; *'Where a suit has abated…, the plaintiff may,*

15 *subject to the law of limitation, file a fresh suit.* In the premises, the applicant is free to file a fresh suit in order to prosecute his claim, otherwise, it is not procedurally possible for an abated suit to be revived by way of this application.

In conclusion, I find that this application lacks merit since there is no error on the face of the record and the exceptional circumstances have not been proved. I hereby

20 order as follows:-

- 1. This Application is dismissed. - 2. Each party shall bear its costs.

## **I so order.**

Ruling delivered via ECCMIS this 24th day of May 2024.

## **Immaculate Busingye Byaruhanga Judge.**