Katusiime and Another v Mugabo and Another (Civil Suit No. 120 of 2023) [2024] UGHC 1205 (1 January 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## **LAND DIVISION**

## CIVIL SUIT NO. 1201 OF 2023.

#### 1. NAKATO KYABANGI KATUSIIME

2. ELIAS KATUSIIME :::::::::::::: **.....................................**

## VERSES

- 1. CHARLES MUGABO - 2. COSMAS KAWESA WASSWA::::::::::::::::::::::::::DEFENDANTS - 3. REGISTRAR OF TITLES

#### **BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K**

#### **RULING**

- 1. The $1^{st}$ and $2^{nd}$ Plaintiffs sued the defendants jointly and severally for a declaration that the transaction entered into between the $1<sup>st</sup>$ Plaintiff and the $1^{st}$ Defendant on 8/9/2015 was purely a money lending loan transaction but not an outright sale and/or purchase of the land comprised in Busiro Block 267 Plot 332 situated at Lweza, Ssabagabo Makindye Municipality, Wakiso District; a declaration that the sale of land and developments comprised in Busiro Block 267 Plot 332 was fraudulent, illegal, null and void; a declaration that the $1<sup>st</sup>$ Defendant had no legal basis for lending to the $1<sup>st</sup>$ Plaintiff money and charge interest thereon on account that he did not have a valid money lending license on 8/09/2015; among others. - 2. The $1^{st}$ and $2^{nd}$ Defendants filed their joint defence on 25/10/2023 wherein, they denied the contents of the plaint. They contended that the transaction between the $1^{\ensuremath{\text{st}}}$ Defendant and the $1^{\ensuremath{\text{st}}}$ Plaintiff conducted on 8/09/2015 was for purchase of land comprised in Busiro Block 267 Plot 332. They prayed that the Plaintiffs' suit is dismissed with costs.

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810912015 was for purchase of land comprised in Busiro Block 267 PIot 332. They prayed that the Plaintiffs'suit is dismissed with costs.

- 3. The 3'd Defendant did not flle its defence while the Plaintiffs'rejoinder to the 1't and 2nd Defendant's written statement of Defence is on record. - 4. Representation; the Plaintiffs were represented by Counsel Magellan Kazibwe from MAGELLAN KAZIBWE & CO. - 5. while the 1st and 2nd Defendants were represented by Counsel Innocent Talemwa and from Counsel John Chris Kawesa Talemwa & CO ADVOCATES,

# Prelim in a ry Objection.

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- 6. On 2610212074, the 1\* and 2nd Defendants through a letter dated 2610212024 by Tareemwa & Co. Advocates applied for the dismissal of the Plaintiffs'suit for having abated under Order XI A Rule 1 (2) of the Civil Procedure Rules as amended vide SI No. 33 of 2019. - 7. During the hearing on 1910312024, Counsel lvlagellan Kazibwe submitted that they made several appearances not on record and caused the Registrar (HW Kabasinguzi Kayondo) to issue Summons for Direction. That they were later informed that the file had been reallocated to HW Rashida who issued the summons for directions on 7910312024. They were again informed that the matter was before a Judge. That as such, the internal allocations were beyond his powers. - 8. In reply Counsel Taremwa maintained that the matter abated withln 28 days and they applied for its dismissal. That the hearing notice was served on Counsel Magellan on 2910212024 and he did not do the needful but went ahead and moved court on 7910312024. That he has never taken steps until the matter was called for hearing. He prayed that court finds that the matter abated and dismiss the same with costs.

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- 9. In rejoinder, Counsel Magellan submitted that the file was before Justice Kazarwe from where it was moved to HW Kabasinguzi Kayondo, then to HW Rashida. That it will be a miscarriage of justice for the matter to abate in light of the changes within the Division. That the application for abatement should be disallowed since the suit is dealing with the Plaintiffs' residential home, and the summons can be issued by court. Counsel prayed that the matter be allowed to proceed for directions and prayed for a short adjournment to confirm from his documents whether he filed summons for directions or not. - 10. On 310412024, Counsel Magellan further submitted that they availed coud with a copy of the Plaintiffs' rejoinder which was filed on 7417U2023. That they applied for Summons for Direction on 7411212023 which was within the statutory period of applying for the same. That in his letter dated 2610312024, he explained the mishap caused by their clerk who filed the Plaintiffs' rejoinder and inadvertently took all the copies to the chambers and forgot to serve the same to the defendant's counsel. That it is their error which should not be visited on the Plaintiffs.

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- 11. In reply still, Counsel Taremwa retaliated his earlier prayers and submitted that last document on file was a written statement of defence filed on Z5llol2023 at 4i07 pm and modifled on l7llll2023. That the purported reply to the defence dated 1411112023 is a fraud because it was not uploaded on ECCIYIS but created on 2510312024 at 4:10 pm after raising the preliminary objection on L910312024. That the document was modified by HW Rashida on the same day at 6i24 pm; and that Counsel's allegation that the last document was filed on 14llll2023 is not true. - 12. In rejoinder, Counsel for the Plaintiffs submitted that the defence was received in the Registry on 7417\12023 per the official court stamp on page 1 and that the Letter requesting for Summons for Direction was received on 1411212023. That there is no better evidence than the court

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receiving stamp in the registry. He retaliated his earlier submissions that they retrieved the documents and uploaded on ECCMIS on 26/03/2024.

I have carefully considered Order XI A Rule 1 (2) of the Civil $13.$ Procedure (Amendment) Rules, 2019 from which the preliminary objection is premised. It provides for taking out summons for directions where a matter has been instituted by way of plaint in the following words:

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

- Magellan Kazibwe submitted that they had several Counsel $14.$ appearances not on record and caused the Registrar to issue summons for directions. He submitted further that they applied for summons for directions on 14/12/2023 which was within the statutory period of applying for the same. That in a letter dated 26/03/2024, Counsel explained the mishap caused by their clerk who filed the Plaintiffs' rejoinder and inadvertently took all the copies to the chambers and forgot to serve the defence counsel. That it is their error which should not be visited on the Plaintiffs. - Upon perusal of the letter from M/s Magellan Kazibwe & Co. Advocates 15. dated 26/03/2024 and received on 02/04/2024, I note that the letter was filed after Counsel Magellan had requested court for a short adjournment on 19/03/2024. By that time, Counsel for the $1^{st}$ and $2^{nd}$ Defendant had already raised the objection to have the suit abated. In that letter, Counsel Magellan writes briefly as follows:

REQUEST TO THE TRIAL JUDGE TO ACCEPT THE PLAINTIFFS' REJOINDER TO THE DEFENCE IN HCCS NO. 1201 OF 2023.

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...on 14/11/2023 our clerk fi/ed rn time the plaintitrs'rqoinder in the registry but brought a/l the copies back to our chamber and forgot inadvertent/y to serue the same on the Defendants'counse/....

16, Consequently, from the above letter, Counsel requested court to accept the Plaintiffs' rejoinder to the l't and 2nd Defendants written statement of defence. However, Counsel did not mention the alleged summons for directions yet he had earlier submitted that there was a letter requesting for summons for directions which was received on t417212023. The rejoinder was filed on l4llll2023 and was endorsed on 2610312023 by the Registrar, Counsel for the Plaintiffs invited court to look at the receiving stamp as proof that the rejolnder was filed withln time.

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- 17. Order B rule 18 (1) of the Civil Procedure Rules allows a Plaintiff to filing a reply to a written statement of defence within 15 days after the defence has been delivered to him. Fufther, under Order B rule 19, it is provided lhat, "subject to rule B of this Order, a defendant shal/ file his or her defence and either party sha// file any pleadinq subseouent to frlins the other for olacino the record and b<sup>V</sup> de/iverina a duplicate of the defence or other at the address of seruice of the ooposite partv'l - 18. In my view, the filing of pleadings is complete when delivered to court, endorsed, where required, and subsequently served on the opposlte party. Under the rules, a sealed copy of a pleading is a certificate that a pleading was filed on the day indicated. - 19. It suffices to note that the rejoinder in question was signed by the Plaintiffs'Counsel on l4lltl2023. Interestingly, the rejoinder also shows that it was signed and sealed by the Registrar of this court on 2610312023. The month of March is definitely earlier than November. Despite that

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inconsistency. no explanation was given by the Plaintiffs Counsel about the noted anomaly which cannot be taken lightly by this Court. In the circumstances, i am unable to flnd that the date of filing of the rejoinder was 1417U2073. Going by the law as stated above, I am also unable to consider that the complete filing happened on the 2610312023 when the rejoinder was finally slgned and sealed by this court.

20. In view of the above observations, the Plaintiffs Counsel's allegation in their letter that their clerk inadveftently forgot to serve the Defendants is inconceivable, as already noted above the date of sealing the Rejoinder is much earlier than the date counsel signed this same Rejoinder.

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- 27. Consequently, since the last reply on record was received on 25ll)l2123 (1s and 2^d Defendants' defence) and served on the Plalntiffs' Counsel on OU lU2O23, then the plaintiffs were supposed to take out summons for direction by Sth December, 2023 which was not done' Consequently, I flnd that the suit had abated under Order XI A Rule <sup>1</sup> (2) and (6) of the Civil Procedure (Amendment)Rules, 2019, Iong before the 1\* and 2nd Defendant's Counsel prayed to court to have it dismissed. - 22. In conclusion, I find no justifiable reason as to why Civil Suit No 120U 2023 should not abate. The preliminary objection is sustained therefore. Accordingly, the suit is dismissed with costs

1^ Signed, dated and delivered at Kampala this day of .. h,l"^ <sup>2024</sup>

Nabakoo Judg

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