Bfi Group Corporation V. Bureau Of Public Enterprises (2012)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C 

This is an appeal against the judgment of the Court of Appeal, Abuja Division (”the court below” for short) delivered on 5th April, 2007 wherein it dismissed the appeal of appellant herein and affirmed the decision of the trial Federal High Court (‘the trial court’ for short) which found that there was no valid or enforceable contract between the parties herein capable of being enforced by the court.

At the trial court, the appellant, as plaintiff thereat, claimed against the defendant, the respondent herein, the following declaratory reliefs: –

”(a) An order of declaration that the acceptance of the plaintiffs bid price of the sum of US $410 million for the acquisition of 77.5% shares as core investor in ALSCON by the defendant at the bid/auction sale of ALSCON sale held on 14/6/2004 constituted a binding contract between the parties.

(b) A declaration that the bid by the plaintiff for the purchase of ALSCON 77.5% share holding of the Federal Government of Nigeria under the supervision and control of the defendant by which the plaintiff emerged winner on the 14th June, 2004 is valid, extant and irrevocable.

(c) An order of declaration that the understandings and Agreements reached at the Technical Bids Conference held on 20/5/2004 constituted the terms and conditions for the bid and the payment for the acquisition of 77.5% shares on ALSCON by a strategic core Investor under the Federal Government of Nigeria Privatisation programme.

(d) A declaration that the terms of payment for the 10% initial bid price is as stated in paragraph F of the confirmation of understandings and Agreements made by the defendant and the plaintiff on 20th May, 2004 which state inter alia that the bid price is to be paid within 15 working days of signing the share purchase Agreement (SPA) while the outstanding 90% Bid price is to be paid within 90 calendar days.

(e) A declaration that the purported letter of the defendant dated 9th July, 2004 titled ”Application for Extension of time” and alleging default of paying the 10% of the Bid price was a ruse meant to cover the defendant’s illegality as no application for extension of time was made on 8th July, 2004 when the plaintiff was ready and willing to sign the SPA in the defendant’s office and no default was made by the plaintiff in the payment of the said 10% of the bid price.

(f) A declaration that the postponement of the signing ceremony of the Share Purchase Agreement (SPA) from 8th July, 2004 to 9th July, 2004 by the defendant was a stratagem designed by the defendant to prevent the plaintiff from taking benefits of the contract willingly entered into by both parties and for which the plaintiff had altered its position to its detriments at the instance of the defendant.

(g) A declaration that the letter written by the defendant to the plaintiff unilaterally terminating the said contract is illegal, void and unconstitutional to say the least.

(h) A declaration that the defendant had deliberately made the plaintiff alter its position to the latter’s disadvantage by making the plaintiff commit huge financial resources which include among others the sum of US $ 3million and another US $ 1 million bond made in favour of the defendant as well as, loss of goodwill, attraction of Business Partners, affiliate, investors, submission of expression of interest statement, legal evaluation of information memorandum, bidding documents, pre-due diligence technical conference, 3 weeks on sight data room due diligence review at Ikot Abasi, Joint Technical Question and Answer Conference, submission and evaluation of financial bid and international and local media coverage of the final opening bid to mention just a few financial and material resources injected into the bidding exercise at the instance of the defendant.

(i) An order of this Honourable court granting a decree of specific performance mandating the defendant to provide the share purchase agreement for execution by the parties to enable the plaintiff pay the agreed 10% of the accepted bid price of US $ 410 million (i.e. the sum of US $ 41 million) within 15 working days from the date of the execution of the share Purchase Agreement accordance with the agreement dated 20/5/2004.

(j) A declaration that the defendant is bound to accept payment of 10% of the Bid Price from the plaintiff within 15 days from the date of signing the share purchase (SPA) by the parties.”

The plaintiff at the trial court also sought for an order of perpetual injunction as follows:-