Nakibuuka and Another v Namutebi (Miscellaneous Application No. 2090 of 2021) [2022] UGHCLD 60 (26 April 2022)

#### THE R,EPUBLIC OF UGANDA

## IN THE HIGH COURTOF UGA DA AT KAMPALA

#### (LAND DTVISION}

#### MISCELLANEOUS APPLICATION NO.2O9O OF 2O21

# (Artstng out of Clull Suit rYo. 589 oJ 2O2O)

# I. NAKIBUUKA MADINAH

2. NAKATUDDE NDAH.............. ......... APPLICANTS

lrERSUS

NAMUTEBI NANKYA AISHA RESPONDENT

BeJore: Ladg Justlce Alexqbdra Nkonge Rugad.gq.

### RULING:

# Introductlon:

20 This application seeks to reinstate Ciull Sult IVo. 589 ol 2O2O which was dismissed by this court on 16'h August, 2020.

#### The ,aur:

I have carefully perused the pleadings and the arguments made in submissions by each side which I choose not to reproduce as the details are already on record. Suffice to state that the Iaw under Order 77A rule 1(2) ol the CPA, under which this court had dismissed the main suit requires that where a suit has been instituted by way of plaint the plaintiff is mandated to take out summons for directions within 28 days from the date of the last reply or rejoinder referred lo in Order 8 rule l8l5i of the rules. In effect therefore, summons for directions cannot be taken out before the close of the pleadings.

# Conslderdtlon of the issue bu covd;

The question in this application as I understand it rotates around the issue as to what point were the pleadings considered to be closed for the due compliance of the amended rules; and also whether or not in the circumstances of this case, this court has the discretion to reinstate the suit.

The record reveals that t}Ie main suit was instituted on 24rh August, 2020. Summons and plaint were served to the defendant (respondent) on 8th September,2020 and it is not in dispute that the WSD by the respondent was filed on 17th Septemb cr, 2O2O through the firrn of M/s Kauutna, Kabenge & Co. Ad.uocqtes. The applicants maintain however that the WSD was never served to them.

Court also ta-kes note that the firm of M/s Lukuago, Matovu & Co. Aduocates took over from l}ne M/s Kq.vumq, Kabenge &, Co. Aduoc@tes after receiving instructions from the respondent/defendant on 9th April, 202 1.

The said ljirrn of M/s Lukntago, Matoou & Co. Adltocates ir\ their submissions claimed that this was eight (8) months after the pleadings had been already been filed, served and closed. That from the time of filing the suit nothing had been done by the applicants to expedite their matter. According to them therefore, the applicants had no locus to file the application since the suit had abated on the 16th August, 2021, ar.d. that the application was therefore a waste of court's time. 15

?o The applicants' counsel's arguments in submission was that they were not served with the wSD until the 9th September, 2O2l afler new counsel for the respondent/defendant who initia.lly had failed to trace the WSD filed by the previous counsel were later able to trace it after writing to this court.

It was after the close of the pleadings that they were able to file their reply to the WSD and subsequently flled summons for directions, respectively on 21"t September, 2027 and 1"t October, 2021.

That however while following up the matter they learnt that the case had abated under order 17A rule I and dismissed prematurely by this court on 17th August, 2021 since according to them by the time of the abatement they had not been served by the defendant and therefore the pleadings were still ongoing. To support that position, he cited the case of Seruuru Jude as

#### SWANGZ Avenue Ltd, Clull Appeal No. OO39 oJ 2027. 30

l-earned counsel therefore submitted that it would be just equitable and in the interest ofjustice that this court exercises its discretionary powers to reinstate the suit since all the necessary

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pleadings by the applicants, including the summons for directions were frled after the closure of the pleadings and therefore within the time as stipulated.

Counsel for the applicants cited the decision in Mlsc. Aooea.l No. 25 of 2O2O /ra,olmu Moses Gava& 7 others us Sekqtcrrra Muhammed & 72 others.

5 ln that case, court had made a finding that the intention of the framers of Order 77A rule 7 of the CPR (as amended) was to mitigate the delays and inefficiencies brought on by the actions of the officers of court and parties in civil proceedings. That in order that these rules achieve the desired objective, a holistic and judicious approach to their application should be adopted'

I have no reason to disagree with the above mentioned principles as enumerated in that appeal. However with all due respect, counsel for the applicants ought not to miss the point that pleadings come to a close generally under two scenarios:

In the first scenario it is anticipated that all pleadings required to be on record would be filed within the time as court would direct. Within that context therefore, the filing of a rejoinder would mark the close of the pleadings.

15 In the second scenar-io, pteadings would invariably come to a close when the time within which to file and serve them as stipulated in the summons (or rules) has expired and no such pleadings: WSD or a rejoinder (as the case may be) have been filed.

As stated in K(,.olmu Moses Gaua& 7 others us Sekatq.u)a tttrtnted l2 others lsrtoral the case cited by Iearned counsel for the applicants, there are sevcral exceptions laid out under

20 Ord.er 77A rule 7(4) of the CPR where a plaintiff would not be required to file summons for directions.

As one ofthose exceptions, he/she may apply for a default judgment under order 9 ntles 6 and 7 of the CPR, In addition the framers of this law (whether by design or inadvertence) left out arother obvious exception where for instance the defendant may fail to hle a defence within the

25 stipulated time.

From the provisions of order I ol the CPR, the defendant is required to effect service within a period of 15 days. Thus unless he/she applies for extension of time the pleadings must close. The plaintiff is required then to apply to court to have the matter set down for hearing.

ln Order 9 rule 7O oJ the CPR, where the defendant docs not file a defence, upon compliance with order 5 ol the CPR, the matter is to proceed as if he/she hled a defence and the plaintiff may set down the suit for hearing exparte. (Order 9 rules 11(2) oJ the CPR). 30

The plaintiffs/ applicants in the present case did not follow up on that process which was not affected by the amendment in the rules; and as such were not vigilant in pursuing their rights ln court.

As a matter of fact they waited to be served with the WSD more so out of time, and never brought it out to the attention of court that they were neyer served but instead decided to rely on the letter dated 16th August, 2021 by t:ne respondent's counsel as their proof that they had not been served with the WSD. lAnnexture D attached to the application).

The letter clearly intended to put in order the record of the defence lile for the new counsel. There is nothing to show from the contents of their correspondence that there was acknowledgement of the fact that the applicants had not been served with the WSD by the previous counsel or that in searching for the WSD, they were intending to serve the applicants.

In my view if the applicants had not been duly served they had the option to file to apply to court to set down the matter for hearing, which step they did not take up.

15 That said letter had been copied to the learned counsel for the applicants. In the absence of a],Iy other reason to think differently, after filing the suit on 24th August, 202O, the applicants had waited for another year before taking up further action to have the case prosecuted. They only did so, against the spirit of the rules as amended, upon receiving a copy of that correspondence from the respondent's counsel.

20 The fact that the applicants had to wait for that long before taking up appropriate action would defeat the whole purpose for which the amended rules were intended. It also goes without saying that the summons by the registrar were issued a month after the suit had abated, and therefore the summons were issued in respect of a nonexistent suit.

Be that as it may, the court in the case cited by counsel for the applicants took the trouble to discuss the distinction between abatement of the suit under order 77 rule 5(1) oJ the CPR as

25 amended and. order 77 A nrle 2 and 6 oJ the CPR under which this court had dismissed the suit.

l)nd.er order 77 rule 5(1) ol the CPR, abatement of the suit takes place automatically where no application is made or step taken by either party for a period of six months after the mandatory scheduling conference, with a view of proceeding with the suit.

30 By virtue of ord.er 7 7 1(A) Rule 7 of the rules where a suit has abated the plaintiff may subject to the law of limitation file a fresh suit and as such in this case retains the discretion to allow reinstatement, if satisfied as I indeed I ajn, that it would save the time and expense involved in filing a fresh tdal.

For the above reasons, I would allow this application, only subject to payment of costs to the respondent/defendant.

Alexandra Nkonge Rugadya

$\mathsf{S}$ **Judge**

26<sup>th</sup> April, 2022.

Delivered by exact<br> Olemberg<br> $\sqrt{26/4/200}$ 2.