A five-man panel of the Supreme Court has
ordered the Bureau of Public Enterprises, BPE, to execute the Share Purchase
Agreement, SPA, for the sale of the Aluminium Smelter Company of Nigeria,
ALSCON, with BFIG Group Corporation.
The apex court
said the execution of the SPA would enable the company pay the agreed 10 per
cent of the accepted bid price of $410 million within 15 working days from the
date of the execution of the SPA.
Five justices of
the court unanimously agreed that there was a binding contract between BFI
Group and the BPE which should be enforced.
The apex court
also issued an order of perpetual injunction stopping the BPE from further
inviting fresh bidding for the sale and acquisition of ALSCON.
It also awarded N50,000 cost against BPE.
Justice Afolabi
Fabiyi delivered the lead judgment in the case last Friday.
He held that Russal should have refrained from buying the company
when it was aware that BFI Group, which was chosen as the preferred bidder
before BPE unilaterally frustrated the contract, was already in court
challenging the refusal to consummate the transaction.
Fabiyi 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.
Fabiyi noted that
the reason given by BPE for abrogating the contract was most unjustified and
contrary to the agreement of parties.
He identified as the crux of the dispute as 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 preferred bidder, whereas the initial agreement was that
the 10 per cent bid price should be paid within 15 working days of signing the
SPA, while the remaining 90 per cent bid price was to be paid within 90 days.
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