Rwamyeri v Registered Trustees of the Diocese of Fort Portal (HCT-01-LD-CS 27 of 2021) [2024] UGHC 936 (6 August 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

#### **HCT-01-LD-CS-027-2021**

**LAWRENCE RWAMYERI :::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

**REGISTERED TRUSTEES OF THE DIOCESE OF FORT PORTAL ::::::::::::: DEFENDANT**

#### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING ON PRELIMINARY OBJECTION**

#### **Introduction**

This ruling arises from a preliminary objection raised by Mr. Mirembe Gerald, counsel for the defendant, that the instant suit should abate under Order 11A Rules 1(2) and 6 of the Civil Procedure Rules, as amended.

#### **Background**

The plaintiff filed the instant suit against the defendant on the 18th of August 2021. He then served a summons to file a defence on the defendant on the 24th of August 2022. Upon receipt of the summons, the defendant filed her written statement of defence on 19th September 2022. The plaintiff then filed a reply to the written statement of defence on the 14th of October 2022. However, the plaintiff did not extract a summons as required under Order 11A of the Civil Procedure Rules.

When the matter came for mention on the 6th of September 2024, counsel for the defendant raised a preliminary point of law that the suit should abate under Order 11(A) Rule 1(2) and 6 of the Civil Procedure Rules, as amended, and praised for its dismissal.

## **Representation and hearing**

The hearing proceeded by way of oral submissions. Mr. Mirembe Gerald represented the plaintiff while Mr. Mwebaze Ndibarema represented the defendant.

## **Issue for Determination**

The issue for this court's determination is whether the instant suit should abate in line with Order 11A Rules 1(2) and (6) of the Civil Procedure Rules.

## **Decision of Court**

Order 11A Rule 1(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 a summons for direction within 28 days from the date of the last reply or rejoinder referred to in Rule 18(5) of Order 8 of these Rules."*

Order 11A Rule 1(6) of the Civil Procedure Rules as amended provides that:

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

In the case of *Kampala Associated Advocates v. Katamba Ssemakula Misc. Application No. 873 0f 2019* the court held that summons for directions typically pertain to the mediation of the suit, necessary discovery orders, and the filing and exchange of trial bundles and witness statements within a set period. It is also at this stage that the court decides the number of witnesses required and the number of trial days. The court may order further particulars if a plaintiff or defendant fails to provide sufficient details of their claim, defence, or counterclaim. Interlocutory applications can also be addressed at this stage. Compliance with all court directions during the summons for directions prepares the case for trial.

In the case of *Gama Distillers Ltd v. Bikanza Ezra HCCS No. 60 of 2021,* Hon Justice Vincent Wagona stated thus:

> *"From the reading of the entire order 11A 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 is 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. Each case should be considered on its own merits and peculiarities."*

In *Kampala Associated Advocates v. Katamba Ssemakula (supra)* Hon. Justice Stephen Mubiru held that:

> *The abatement of suits under Order 11A rule 6 when invoked and applied automatically will be counterproductive in light of the fact that 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 should be abated by court under Order 11A rule 6 only when it is satisfied that such an order is necessary to save the time and expense of a*

*trial when the plaintiff's suit cannot progress with the dispatch which the circumstances of the suit and the available court resources require.*

Quoting with approval the case *Phelps v. Button [2016] EWHC 3185* Hon. Justice Stephen Mubiru in the case of *Kampala Associated Advocates Vs Katamba Ssemakula (Supra)* in determining whether the suit should abate, the court has to consider the following parameters: the length of the delay; any excuses put forward for the delay; the degree to which the claimant has failed to observe the rules of court or any court order; the prejudice caused to the defendant by the delay; the effect of the delay on trial; the effect of the delay on other litigants and other proceedings; the extent, if any, to which the defendant can be said to have contributed to the delay; the conduct of the claimant and the defendant in relation to the action; or other special factors of relevance in the particular case.

While giving due regard to the foregoing parameters, the court should scrutinize the reasons given by the person accused of undue delay and closely examine the facts, including any reasons provided for adopting a specific course of action. The court has also to determine whether the alleged misuse of the court's process is severe enough to justify dismissing the case, thus preventing an exploration of its actual merits.

In the instant case, the plaintiff filed his reply to the written statement of defence on 14th October 2022. Under Order 11A Rule 1(2), the plaintiff was expected to take out a summons for directions 28 days after filing the written statement of defence. When this matter came up for mention on the 6th of September 2024 almost 2 years after the date of the last reply, the plaintiff had not yet taken out a summons for direction per Order 11A Rule 1(2) of the Civil Procedure Rules.

The reason for the delay as advanced by counsel for the plaintiff is that although the instant suit was filed way back in 2021, he received instructions from the plaintiff on the 3rd of October 2023 to take over his case. Counsel for the defendant also submitted that there is a sister case which is pending in another court and had agreed with Mr. Bwiruka, cocounsel for the defendant, to stay that matter, but fell short of providing details of that "sister case." Counsel also argued that he had written to this court on the 23rd of October 2023 requesting a schedule for this matter.

I have addressed my mind to the submissions of counsel, the provisions of the law on abatement, and the reasons for failure to take out a summons for direction as advanced by counsel for the plaintiff.

The record of the court shows that this court received a letter from the counsel for the applicant on the 1st of February 2024 notifying it of the change of advocates as well as requesting a schedule for filing the trial bundle. The letter is addressed to the Senior resident Judge of this court. Counsel had also notified the court of the change instructions on the 3rd of October 2023.

As observed herein, the purpose of taking out a summons for directions is beyond getting schedules for filing trial bundles. I take note of the fact that the time within which to take out instructions had lapsed before even counsel got instructions to take over the plaintiff's case.

Even after taking over the case, counsel did not take out a summons for directions, which is typically handled by the Deputy Registrar, but he instead chose to write to the trial judge asking for schedules.

The reason why summons for directions is handled by registrars, not trial judges, is because they involve administrative and procedural matters that do not require substantive judicial determination. This allows trial judges to focus on complex legal issues, while registrars manage routine tasks like case scheduling and interlocutory applications. Registrars are expected to process matters, such as summons for directions, more swiftly, allowing litigants to obtain remedies sought efficiently.

At the time of receiving instructions from the plaintiff, counsel should have been aware of this administrative practice, which, for clarity, is provided for under Order 50 Rule 3 of the Civil Procedure Rules. Although the time for taking out a summons for directions had expired, it did not correct the situation when counsel wrote to the trial judge seeking to schedule the matter.

In the case of *Hon Annah Tweheyo v. Kamwenge District Local Government HCCS No***. 25 of 2023, this court observed that:**

> *"Lawyers should follow procedural rules to avoid unnecessary delays in litigation which can lead to a waste of judicial resources and potentially prejudice the other party…The conduct of the plaintiff and her lawyers has delayed court proceedings which defeats the very essence of provisions for summons for directions and this constitutes a serious departure from the Civil Procedure Rules."*

In the instant case, I find that counsel did not follow the procedural rules as set out in Order 11A, and based on his submissions, I see no reason, whatsoever, as to why this suit should not abate.

Resultantly, the preliminary objection raised by counsel for the defendant is upheld. The instant suit abated and is accordingly dismissed with costs to the defendant.

It is so ordered.

Dated at Fort Portal this 6th day of August 2024.

**Vincent Emmy Mugabo Judge**