Wakilii

Navichandra v Kakubhai Kalidas & Co. Limited (Civil Appeal 10 of 1994)

Supreme Court · [1995] UGSC 32 · 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 lacked authority to file the suit
Decision
Appeal dismissed; preliminary objection rejected and suit remitted to the High Court for hearing

Observed later treatment

Treatment recorded in citing cases followed in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Good law Followed in 1 case and applied in 0 cases, with no adverse treatment recorded. Citations fading — 7 citing cases on record, 3 in the most recent three data years. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court held that 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 company's constitution. The burden of proving the absence of authority lay on the appellant, who had adduced no evidence. Because lack of authority did not plainly appear at that stage, the preliminary objection was premature; the issue had to be determined after evidence was heard. Following United Assurance and Buikwe Coffee Estates, and doubting the wider rule in Bugerere Coffee Growers that a resolution is always required, the Court dismissed the appeal with costs and remitted the suit for hearing.

Outcome

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

Facts

The respondent, a limited liability company incorporated in Uganda, sued the appellant for special and general damages for the tortious conversion of UGX 111,935,750, alleging he had held himself out as its Managing Director and received compensation and rent arrears due to the company in respect of a building on Plot 10, Army Avenue, Kampala. It also sought a permanent injunction. In his defence the appellant denied the claim, asserted he was a director instructed to repossess the company's property, and counterclaimed for expenses. He pleaded that the suit had been filed without authority of the Board of Directors. The respondent replied that its advocates were authorised by instructions dated 25 May 1992. At the hearing the appellant raised a preliminary objection that the respondent's advocates lacked authority because no company or board resolution had been produced. The respondent contended that authority was a matter of oral evidence as company records were missing, and that a sole surviving director had authorised the suit. The trial judge dismissed the objection, having no documentary or oral evidence about the company's Articles or any act of the sole director.

Issues

  1. Whether the respondent company's advocates had authority to institute the suit in the company's name.
  2. How authority to commence proceedings in the name of a company is given, and whether it must be by a resolution of the company or its Board of Directors.
  3. On whom the burden of proving the absence of authority to sue rested.
  4. Whether the question of authority could be disposed of by preliminary objection or required the hearing of evidence.

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 — Litigation — Authority of Advocate to Sue in Company's Name
To bring an action in the name of a company there must be authority to do so, failing which the suit is a nullity; whether an advocate has been duly instructed to institute the suit is a question of evidence, and the manner in which such authority is given depends on the constitution of the particular company.
Company Law — Authority to Sue — Whether a Board or General Meeting Resolution is Required
Authority to bring an action in the name of a company need not always be conferred by a resolution of the general meeting or of the Board of Directors; a resolution is required only where the law or the Companies Act specifically demands one, and authorising litigation is not such an instance.
Evidence — Burden of Proof — Allegation of Want of Authority to Sue
Where a defendant alleges that a company's advocate lacked authority to institute the suit, the burden of proving the absence of authority rests on the party making the allegation.
Civil Procedure — Preliminary Objections — Want of Authority Not Plainly Apparent
Where want of authority to sue does not plainly appear at the commencement of the trial, the suit ought not to be struck out on a preliminary objection; the court should proceed to hear evidence and determine the issue, the advocate being liable to pay costs personally if authority is ultimately found wanting.
Civil Procedure — Framing of Issues — Disputed Authority as a Triable Issue
Where one party affirms and the other denies a material proposition such as authority to sue, that dispute forms a distinct issue to be framed and tried; it should not be disposed of by preliminary objection unless it can properly be determined as an issue of law alone under Order 13 rule 2 of the Civil Procedure Rules.
Civil Procedure — Appeals — Adducing Additional Evidence Without Leave
A party may not introduce fresh evidence on appeal to prove a fact such as lack of authority without first obtaining the leave of the appellate court under rule 29 of its Rules; documents annexed to written submissions without such leave are inadmissible and cannot be considered.

Legislation cited (6)

Cases cited (6)

  • Bugerere Coffee Growers Ltd v Sebaduka and Another [1970] EA 147
  • Quin and Axtens Ltd v Salmon [1909] AC 442
  • John Shaw and Sons (Salford) Ltd v Shaw [1935] 2 KB 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] EA 328

Cases citing this judgment (7)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

↓ Download PDF

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

Navichandra v Kakubhai Kalidas & Co. Limited (Civil Appeal 10 of 1994) [1995] UGSC 32 (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.