Wakilii

Navichandra Kakubhai Radia v Kakubhai And Co. Ltd [1995] UGSC 9

Supreme Court · 1995 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling dismissing a preliminary objection that the respondent's advocates had no authority to file the suit
Decision
Appeal dismissed; preliminary objection rejected and the suit remitted to the High Court to proceed with the hearing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court held that whether an advocate has been duly instructed to sue on behalf of a company is a matter of evidence, and that want of authority which does not plainly appear at the commencement of trial cannot be disposed of on a preliminary objection but must be resolved after evidence is heard. The trial judge was right to overrule the objection as premature. The burden of proving the absence of authority lay on the appellant, who adduced no evidence. A company need not always authorise proceedings by formal resolution unless the law so requires. Fresh evidence annexed to written submissions on appeal, without leave under rule 29, was inadmissible. The appeal was dismissed with costs.

Outcome

Appeal dismissed; preliminary objection rejected and the suit remitted to the High Court to proceed with the hearing

Facts

The respondent, a limited liability company, sued the appellant claiming special and general damages for tortious conversion, alleging that the appellant had held himself out as the company's Managing Director and received from Government over UGX 111 million in compensation and rent arrears for a building on Plot 10, Army Avenue, Kampala, which he converted to his own use. The appellant denied the claim, pleaded a set-off and counter-claim for expenses, and contended he had been instructed in 1982 by the company's now-deceased Managing Director to repossess the property. In his defence the appellant alleged the suit had been filed without the authority of the Board of Directors. At the hearing the appellant's counsel raised a preliminary objection that the respondent's advocates lacked authority to file the suit, producing no resolution of the company. The respondent contended the company acted through a sole surviving director who had authorised the suit, and that authority was a matter of evidence.

Issues

  1. Whether the question of an advocate's authority to institute a suit on behalf of a company can be determined on a preliminary objection or only after evidence is heard.
  2. Whether the burden of proving that the respondent's advocates lacked authority to file the suit lay on the appellant.
  3. Whether a company can only authorise the commencement of proceedings by a resolution of the company in general meeting or of its board of directors.

Orders

  • Appeal dismissed with costs to the respondent.
  • Case remitted to the High Court to proceed with the hearing.

Rules and key headnotes

Company Law — Authority to Institute Proceedings — Whether a Resolution is Required
A company may authorise the commencement of proceedings in its name otherwise than by a resolution of the company in general meeting or of its board of directors, unless the law specifically requires a resolution; authority to bring an action in the company's name is not an instance for which a resolution is required.
Civil Procedure — Preliminary Objection — Want of Authority to Sue
Where want of authority to institute a suit does not plainly appear at the commencement of the trial, the suit ought not to be struck out on a preliminary objection; the issue must be determined after evidence has been heard.
Company Law — Authority of Advocate to Sue — Matter of Evidence
Whether an advocate has been duly instructed to institute a suit on behalf of a company is a matter of evidence, and how such authority is given depends on the constitution of the particular company.
Civil Procedure — Burden of Proof — Allegation of Lack of Authority
Where a party alleges that the opposing advocate lacks authority to institute proceedings, the burden of establishing the absence of that authority lies on the party making the allegation.
Civil Procedure — Additional Evidence on Appeal — Leave Required
Fresh evidence introduced as annextures to written submissions on appeal, without leave of the court under rule 29 of the Rules of the Supreme Court, is inadmissible and cannot be considered.

Legislation cited (7)

Cases cited (6)

  • Bugerere Coffee Growers Ltd v Sebaduka and Another (1970) E.A. 1147
  • Quin and Axten Ltd v Salmon (1909) A.C. 442
  • John Shaw and Son Ltd v Shaw (1935) 2 K.B. 113
  • United Assurance Co. Ltd v Attorney General (Civil Appeal No. 1 of 1986)
  • Danish Mercantile Co. Ltd v Beaumont [1951] Ch. 680
  • Buikwe Coffee Estates Ltd v Lutabi and Another (1962) E.A. 326

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Navichandra Kakubhai Radia v Kakubhai And Co. Ltd [1995] UGSC 9 (16 June 1995)
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.