Wakilii

Alcon international Ltd vs Kampala Associated Advocates (Constitutional Aplication No. 50 of 2007)

Court of Appeal · [2008] UGCA 1 · 2008 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion to strike a firm of advocates off the record in a pending civil appeal, arising from Civil Appeal No. 2 of 2004 and HCCS No. 1255 of 1998.
Decision
Application allowed; Kampala Associated Advocates struck off the record of Civil Appeal No. 2 of 2004 and Alcon International Ltd (Uganda) confirmed as represented by Tumusiime, Kabega & Co Advocates.

Observed later treatment

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Holding

The court determined which of several companies sharing the name Alcon International Ltd was the true party to Civil Appeal No. 2 of 2004. On the affidavit evidence, it found that although Alcon International Ltd (Kenya) signed the NSSF Workers House contract, an internal Hanspal family arrangement assigned the entire contract, its proceeds and liabilities to Alcon International Ltd (Uganda), which actually executed the works and instructed Tumusiime, Kabega & Co Advocates. Consequently Alcon International Ltd (Kenya) had no locus standi in the appeal and no power to instruct advocates to take it over. The application was allowed and Kampala Associated Advocates was struck off the record, with costs against Alcon (Kenya).

Outcome

Application allowed; Kampala Associated Advocates struck off the record of Civil Appeal No. 2 of 2004 and Alcon International Ltd (Uganda) confirmed as represented by Tumusiime, Kabega & Co Advocates.

Facts

On 21 July 1994 NSSF contracted with Alcon International Ltd (Kenya) to complete Workers House in Kampala. Several companies shared the name Alcon International Ltd, controlled by members of the Hanspal family. Although the Kenya company signed the contract, the affidavit evidence indicated that, shortly after signing, the family agreed that Alcon International Ltd (Uganda) would execute the works and bear its assets and liabilities. Alcon (Uganda), through Kultar Hanspal, Rajesh Kent and Manjit Kent, carried out the construction, received payments, was served with the termination notice, and instructed Tumusiime, Kabega & Co Advocates in 1998 to handle over thirty disputes with NSSF, including HCCS No. 1255 of 1998 and the appeal, Civil Appeal No. 2 of 2004. In 2006 Davinder Hanspal, of the Kenya company, purported to withdraw those instructions and instructed Kampala Associated Advocates to take over the appeal. The applicant sought to strike the latter firm off the record.

Issues

  1. Which entity is properly the applicant Alcon International Ltd for the purposes of Civil Appeal No. 2 of 2004.
  2. Whether Davinder Hanspal and Alcon International Ltd (Kenya) had authority to withdraw instructions from Tumusiime, Kabega & Co Advocates and to instruct Kampala Associated Advocates to represent Alcon International Ltd.
  3. Whether Kampala Associated Advocates should be struck off the record in Civil Appeal No. 2 of 2004.

Orders

  • Application allowed.
  • Alcon International Limited (Kenya) struck off the record of Civil Appeal No. 2 of 2004.
  • Kampala Associated Advocates struck off the record.
  • The company (Alcon International Limited (Kenya)) to pay the costs of the application.

Rules and key headnotes

Legal Representation — Instructing and Withdrawing Advocates — Authority of Party
Only a party with locus standi in proceedings has power to instruct or withdraw instructions from advocates on the record; a stranger to the proceedings cannot lawfully substitute counsel for the litigant.
Separate Legal Personality — Distinct Companies Sharing a Name — Identification of Contracting Party
Where several distinct companies share the same name, the true party to a contract and to litigation arising from it is identified by evidence of who executed the contract, received payment, bore liabilities and instructed counsel, not merely by the name appearing on the contract.
Assignment of Contract — Transfer of Benefit, Proceeds and Liabilities
A contract, together with its proceeds and liabilities, may in substance be assigned to another entity, and conduct evidencing that the assignee executed the works, received payments and dealt with the counterparty may establish the assignment even absent the written instrument.
Affidavit Evidence — Credibility Assessment Without Cross-Examination
Where all evidence is by affidavit, a court assesses credibility by evaluating the whole of the evidence together as an integrated whole and against the documentary record, rather than by observing witnesses, and may reject testimony contradicted by contemporaneous documents.

Full judgment

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Alcon international Ltd vs Kampala Associated Advocates (Constitutional Aplication No. 50 of 2007) [2008] UGCA 1 (17 February 2008)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.