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Supreme Court bars BPE from fresh bid for Aluminum Smelter Company of Nigeria Sale.

The Supreme Court has issued an order of perpetual injunction restraining the Bureau of Public Enterprises, BPE, from inviting any further bid for the sale and acquisition of the Aluminum

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قديم 07-09-2012, 07:14 PM
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تاريخ التسجيل: Apr 2012
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افتراضي Supreme Court bars BPE from fresh bid for Aluminum Smelter Company of Nigeria Sale.

The Supreme Court has issued an order of perpetual injunction restraining the Bureau of Public Enterprises, BPE, from inviting any further bid for the sale and acquisition of the Aluminum Smelter Company of Nigeria, ALSCON.

A five-man panel of Justice of the apex court, in a unanimous judgment on Friday, equally ordered BPE to go ahead and execute the share purchase agreement for the sale of ALSCON, which it earlier entered with the BFIG Group.

Corporation with a view to enabling the Company pay the agreed 10 per cent of the accepted bid price of $410 million.

The Court noted that the payment ought to have been effected within 15 working days from the date of the execution of the Share Purchase Agreement between BPE and the company.


The apex Court justices maintained that going by the proof of evidence before the court, there was a binding contract between BFI Group and the BPE which ought to have been enforced since. Consequently, they awarded N50, 000.00 as cost against the BPE.


Delivering the lead judgment, Justice Afolabi Fabiyi held that another Company identified as Russal, should have been refrained from buying the Company when it was aware that BFI Group which was earlier chosen as the preferred bidder before BPE unilaterally frustrated the contract, was already in Court challenging BPE’s refusal to consummate the transaction.


He said: “The Respondent (BPE) must be made to appreciate the purport of the doctrine of lis pendens which is aimed at preserving the subject matter of litigation. Any extraneous body including Russal which buys the subject of litigation does so as its own risks.”


He noted that Russal was the second bidder whose bid sum of $205 million with conditionality was rejected by BPE, adding that the reason given by BPE for abrogating the contract was most unjustified and contrary to the agreement of the parties.


Justice Fabiyi further maintained that the crux of the dispute was the the unilateral insertion of an offensive clause that the 10 per cent bid price must be paid within 15 days of the receipt of the letter informing BFI Group that it had been selected as the prefer bidder.


He faulted that clause, noting that the initial agreement was that the 10 per cent bid price should be paid within 15 working days of signing the Share Purchase Agreement while the remaining outstanding 90 per cent bid price was to be paid within 90 days.


According to him, the reason given for abrogating the contract does not accord with the stipulations in Exhibit 5 –the pre-bid conference resolutions which expressly provides that payment of the initial ten per cent of the purchase price shall be made within 15 working days after the signing the Share Purchase Agreement.


He held that BPE had no power to unilaterally change the mode of payment of ten per cent of the bid price.
BPE had terminated the contract when BFI Group failed to pay the ten per cent initial bid price within 15 working days of the receipt of its letter. The apex Court held that the reason given by BPE for terminating the contract was untenable in view of the various documents tendered in Court which showed the agreement between the two parties.


In his judgment, Justice Fabiyi also noted that both the Federal High Court and the Court of Appeal in Abuja failed to properly evaluate the documents tendered before them before they dismissed the case that was filed by the BFI Group.


“The lower courts, with due diffidence, took a very simplistic view of the whole transaction from the angle of a simple contract without bearing in mind that the sale of ALSCON was by way of an auction sale in which each bid is regarded as an offer which if accepted by the auctioneer by the fall of the hammer, creates a binding and enforceable contract,” he held.

Supreme Court bars BPE from fresh bid for Aluminum Smelter Company of Nigeria Sale.


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