Order 11A of the Civil Procedure Rules (CPR) on automatic abatement of suits Uganda is ultra vires due to Section 96 of the CPA
Section 96 of the CPA provides that where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, extend that period, even though the period originally fixed or granted may have expired.
If Court can extend the time for taking out summons for directions under Section 96 of the CPA even after the the period provided for by the rules has expired then automatic abatement under Order 11A(1)(6) violates a specific provision of the CPA. It tries to deprive Court of discretion that is expressly provided for by Section 96.
Interestingly, the High Court has treated the automatic abatement required by Order 11A (1)(6) as not being automatic contrary to the express provision of the rule. The High Court did not consider the conflict between Order 11A (1)(6) of the CPR and Section 96 of the CPA.
In Kampala Associated Advocates Vs Katamba Ssemakula 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.
The Hon. Lady Justice Florence Nakachwa in Geofrey Waswa Vs. Amy for Africa Ltd & 2others, Civil Suit No. 127 of 2020, on the other hand in her ruling on a preliminary point of law that the suit had abated under order 11A R 2 & 6 of the Civil Procedure Rules as Amended attempted to give the contextual application of the verb
“shall’ in legislative sentences and she stated thus:
“Consideration of the principles governing shall in a legislative sentence in its ordinary significance, shall is a word of command. It is a word which should normally be given compulsory meaning because it is intended to denote an obligation. The auxiliary verb shall should be used only where a person is commanded to do something. However, shall is sometimes intended to be directory only. In that case, it is equivalent to May and would be construed as merely permissive to carry out the legislative intention. This usually applies in cases where no right or benefit accrues to any one where no public or private right is merely impaired by its interpretation as directory”
The Hon. Lady Justice Olive Kazaarwa Mukwaya in Kagimu Moses Gava& 7 other Vs. Sekatawa Muhammad and 11 others, Civil Appeal No. 25 of 2020 arising from Civil Suit No. 145 of 2020 while interpreting the implications of Order X1A Rules 2 and 6 she stated at page 8 thus:
“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 and judicious approach to their application should be adopted by the courts”.
In the case of Gama Distillers Ltd Vs Bikanza Ezra (supra), Hon Justice
Vincent Wagona stated that:
“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.”
From the Judicial consideration of Order 11A of the Civil Procedure (Amendment) Rules 2019 above, the consensus is that without considering Section 69 of the CPA, Order 11A of the Civil Procedure (Amendment) Rules 2019 does not lead to automatic abatement of the suit. The court retains the discretion to consider the circumstances of the default and can keep the suit alive where the plaintiff demonstrated an interest in ligating the matter. The court can consider the conduct of the plaintiff and the length of the delay in extracting summons for directions and the reasons for the defaults. Court can consider whether the limitation period is still running or lapsed.
Cases that provide for automatic abatement include Seruwu Jude v Swangz Avenue Ltd (HCCA No. 0039 of 2021) and Kagimu Moses Gava & Others v Sekatawa Muhammed & Others (Misc. App No. 25 of 2020). In Civil Suit No. 156 of 2024 (Ssuubiryo Financial Service Ltd v. Nsubuga Irene) court stated that “Litigation must be conducted with due diligence and reasonable promptitude. The continued pendency of the suit without active prosecution is not only an abuse of court process but also offends the dictates of justice.”
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