NSSF to present new evidence in Alcon case

By Hillary Nsambu and Edward Anyoli

THE National Social Security Fund (NSSF) has been allowed to present new evidence to the Supreme Court proving that Alcon International Limited obtained US$8.9m (about sh22b) compensation award fraudulently.

When the hearing of the case in the Supreme Court started on Monday, Principal State Attorney Patricia Mutesi applied to the Court to amend their grounds of appeal saying they have new evidence to present against Alcon International's compensation award.

Mutesi's assistant, David Nambale, the NSSF corporation secretary said that after 14 years of scrutinizing the process through which Alcon International was awarded the compensation, they have "found new evidence leading to fraud in the whole process."

The Supreme Court will conclusively rule whether Alcon International is paid the money or not.

If NSSF loses the appeal, it will have to pay over US$15m (about sh40b) due to accumulated interest over the years. The case has caused anxiety among the workers who are the real owners of the NSSF.

Mutesi's appleal to bring new evidence was granted on Monday by the five-Justice panel headed by the Chief Justice Benjamin Odoki. The other members were Justices John Wilson Tsekooko, Bart Katureebe, Christine Kitumba and Esther Kisaakye.

The Supreme Court was packed to capacity by senior NSSF managers and other workers who heartily applauded and hugged Mutesi and Nambale for their preliminary legal victory over Alcon International.

Alcon International sued NSSF for arbitrarily terminating its contract for building the Workers House in Kampala.

In June 1996, NSSF and Alcon International signed a contract for building the Workers' House. But, after a few years NSSF terminated the contract, and allegedly confiscated the company's construction tools. The company sued for damages.

During the High Court hearing, the matter was referred to an arbitrator who awarded Alcon International $8.9m in compensation.

NSSF appealed against the award, but the High Court confirmed arbitrator's decision to compensate Alcon International Limited.

NSSF also appealed in the Court of Appeal, which also upheld the compensation for Alcon.

Mutesi told court that they seek to prove that the Court of Appeal made an error in upholding the High Court decision to award the money to Alcon International. He said there was no case against NSSF.

The attorney also submitted that the Court of Appeal made a mistake in upholding an award that had been illegally obtained and contrary to public policy.

Earlier, Enos Tumusiime had appeared with MacDosman Kabega and Ronald Oine for Alcon International Ltd and had strongly opposed the application for new evidence.

The lawyer argued that all the issues NSSF had brought as new evidence had been dealt with and finally concluded. He submitted that when the High Court initially referred the case for arbitration, the arbitrator, a retired Kenyan Justice G. Torgbor considered all the issues that the law for NSSF was bringing up again.

Tumusiime argued further that when NSSF appealed to the High Court, Justice Stella Arach-Amoko (now Court of Appeal Justice) dismissed the appeal after considering all these issues.

The lawyer said that the allegations of fraud were being presented in the Supreme Court after the death of the managing director of Alcon International Limited, Kurtal Singh.

He said Singh died a few weeks ago. But Court did not accept his call for the application to be dismissed.

NSSF will present the detailed evidence regarding the alleged fraud when the case comes up for hearing on April 12 and 13, 2012.