Showing posts with label fall 09. Show all posts
Showing posts with label fall 09. Show all posts

Tuesday, December 1, 2009

Uganda: Firm Sues NSSF Over Breach of Contract
Lominda Afedraru
18 November 2009
The National Social Security Fund has been sued over a breach of contract which could make the fund pay up to Shs2.4 billion in costs.
Comptel Integrators Africa Limited, an information technology company, accuses NSSF of illegally starting a fresh procurement process for consultancy services for the maintenance of the fund's information technology systems.
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Comptel wants the Commercial Division of the High Court to overturn NSSF's decision to invite bids for consultancy services since it would breach an agreement it has with NSSF.
The two parties appeared on Monday before Justice Godfrey Kiryabwire and the case was adjourned to February 1, 2010.
Comptel claims it won the contract in 2007 to provide consultancy services for the maintenance of NSSF's information technology systems.
According to the company, between September 2008 and March 2009 it carried out Technical support work at a fee of Shs2.4b which was acknowledged by NSSF. The company says NSSF later asked it to apply for renewal of its license to perform the same work, which it did at a cost of Shs1.9 billion.
The firm says in December last year, NSSF approved its recommendations for the service and signed a maintenance agreement for the maintenance of NSSF's integrated management information system which was to be put in place with a service provider in accordance with the Public Procurement and Disposal of Public Assets Authority regulations.
The company argues that the agreement did not direct NSSF to subject the maintenance service to competition under open bidding. However, NSSF has decided to advertise the procurement of service through a competitive bidding process.
Comptel argues that NSSF's should halt fresh invitation of bids and pay the debt demanded and costs. NSSF has denied the claim, saying the company's contract ended in June 2008 and there was no other contract signed with it.
According to NSSF, the extra work claimed to have been performed by the company was a continuation of the original contractual work which was not completed within the prescribed time.
Copyright © 2009 The Monitor. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com).

Sunday, November 29, 2009

The liability of an agent of a disclosed principal in a contractual transaction with third parties
Thursday, 18 June 2009 01:15 OLA BAKARE, ACIArb.

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Samuel Osigwe v. Privatisation Share Purchase Loan Scheme Management Consortium Limited & Ors (2009) 3 NWLR (Pt. 1128) 378- A Review of the Supreme Court’s decision determining the liability of an agent of a disclosed principal in a contractual transaction with third partiesÂ

Modern commercial law practice owes its lifeblood, in part, to the concept of Agency; a concept which has been rightly described as lying “at the very heart of the subject (commercial law) and without it modern commerce would not exist.”  The traditional Common Law of Agency is founded on the maxim qui facit per alium facit per se meaning ‘he who acts through another acts himself’. The full amplitude of the principal/agent relationship arises where one party, the principal, authorises another party, the agent, to act on his behalf and the agent consents to so act. From this authority directly conferred on the agent stems the agent’s power. This may either be actual or apparent authority where the principal has by its conduct given the indication that the agent has authority for such matters.The recent case of Osigwe v. Privatisation Share Purchase Loan Scheme Management Consortium Ltd & Ors is a re-statement of the general principle that an agent acting on behalf of a disclosed principal incurs no personal liability in respect of transactions entered into with third parties which falls within the scope of his authority. This is the law in Nigeria as well as other Common Law jurisdictions of the world.FactsThe Appellant instituted a class action for himself and on behalf of persons who had registered to purchase shares in public companies under the Privatization Share Purchase Loan Scheme (PSPLS) against the Respondent for themselves and as representatives of all financial intermediaries engaged in the PSPLS Scheme. The claim was instituted before the Investment and Securities Tribunal.The allegation of the Appellant at the Tribunal was that he and the parties represented suffered damage as a result of a breach committed by the Respondent in respect of certain provisions of the Investment and Securities Act (ISA) and the rules and regulations issued by the Securities and Exchange Commission (SEC) pursuant to the ISA 1999 [specifically by not filing the appropriate statements with SEC. The Appellant sought for the suspension of the share acquisition scheme or an order directing the Respondent to comply with the provisions of the ISA and the rules and regulations made under it.Upon a notice of preliminary objection filed by the Respondents challenging the competence of the action against them, the Tribunal in its ruling, held that the Respondents were not necessary parties because they were agents of a disclosed principal and did not fall within the exceptions to the general rule. The Tribunal accordingly struck out the Respondents’ names.The Appellant, being dissatisfied with the decision of the Tribunal, appealed to the Court of Appeal which dismissed the appeal. The appellant consequently appealed to the Supreme Court.Issues before the Supreme Court and judgmentThe main issue for determination by the Supreme Court is whether the lower court was right in upholding the decision of the Tribunal which struck out the Respondents from the proceedings on the ground that as agents of a disclosed principal, they were not necessary parties to the proceedings. The submission of the learned counsel for the Appellant was that the Common Law principle that limits the liability of an agent of a disclosed principal does not apply in a case where the Respondents are accused of breaches of statutory duties and requirements and thus the statutory provision envisaged the responsibility of the respondents regardless of their agency status. On their parts, the Respondents’ counsel submitted that as agents of a disclosed principal, the Respondents are not necessary parties in the suit. Upon consideration of these submissions the Supreme Court unanimously dismissed the appeal. Musdapher, JSC in his lead judgment succinctly captures the legal position as follows: “Again, it is clear from the appellant’s pleading that each of the respondents herein are merely agents of the BPE solely appointed for the registration of would be purchasers of the shares of the public companies to be privatized. The respondents also by the pleading of the appellant, are unmistakably agents of a revealed principal and as agents, they cannot be liable under all the circumstance of this case. See Okafor v. Ezenwa (supra) ... An agent acting on behalf of a known and disclosed principal incurs no personal liability.…”The above decision is not any way in isolation. The Supreme Court had reached the same conclusion in the case of James v. Mid-Motors (Nig.) Co. Ltd. (1978) 11 N.S.C.C. 536 at 548 where the court per Aniagolu, JSC made a brilliant exposition of the law on the point while His Lordship made reference to the judgment of the House of Lords in Houlsworth v. City of Glasgow Bank (1874-1900) ALL ELR. Page 333 which had being the locus classicus on this Common Law position.CommentsThe reciprocal rights and liabilities of Principal and Agent reflect commercial needs and legal realities. In any sizable business, it is not possible for one person to travel everywhere to negotiate all the transactions necessary to maintain or grow the business. These problems are increased if the business is a corporation, because it is then a fictitious legal person and, as such, it can only act through human agents. Hence, independent people are contracted by businesses to buy and sell goods and services on behalf of those businesses. When agreements are made, the Principal is liable under the contract(s) made by the Agent. So long as the Agent has done what he or she was instructed to do, the result is the same as if the Principal had done it directly.If the Agent has actual or apparent authority, the Agent will not have liability on any transactions agreed within the scope of that authority so long as the Principal was disclosed, i.e. the fact of the agency was revealed and the identity of the Principal revealed. But where the agency is undisclosed or partially disclosed, both the Agent and the Principal are bound. Where the Principal is not bound because the Agent had no actual or apparent authority, the purported Agent is liable to the Third Party for breach of the implied warranty of authority.

Saturday, November 28, 2009

Lorus Therapeutics Raises $2.46 Million in Equity Financing
Press Release
Source: Lorus Therapeutics Inc.
On 5:12 pm EST, Friday November 27, 2009
TORONTO, ONTARIO--(Marketwire - Nov. 27, 2009) - Lorus Therapeutics Inc. ("Lorus")(TSX:LOR - News), a biopharmaceutical company specializing in the discovery, research and development of pharmaceutical products and technologies for the management of cancer, announced today that it has completed an equity financing in the amount of $2.46 million by way of a private placement of 41 million units (the "Units"), each Unit consisting of one common share of Lorus and one-half common share purchase warrant (each whole warrant being referred to as a "Warrant"). Each Unit was issued at $0.06, which is based on the current market price of common shares of Lorus. Each Warrant entitles the holder to purchase one common share of Lorus at an exercise price of $0.08 until May 27, 2011. The Toronto Stock Exchange granted its approval with respect to the additional listing of common shares as the total number of shares and warrants issued pursuant to the private placement comprise approximately 25% of the issued capital of Lorus.
Participating agents are being paid a commission of 7% of the value of Units sold, approximately $172,200, and in addition are receiving 7% broker warrants (each whole broker warrant exercisable at the exercise price of a Warrant) based on the number of Units sold, limited to a maximum of 2,152,500 broker warrants to be issued to such agents. Herbert Abramson, a director of Lorus who is thereby a related party of Lorus, participated in the private placement. Concurrent with the closing of the private placement, Lorus repaid an outstanding promissory note owing to Mr. Abramson who in turn used such proceeds towards acquiring 17 million Units at $0.06 per Unit. As a result of the private placement, Mr. Abramson's aggregate holdings in Lorus have increased to 14.4% of the issued and outstanding common shares of Lorus.
Lorus expects to use the proceeds of the private placement towards its clinical and preclinical programs. "We are pleased that this financing enables us to progress our drug development programs", said Aiping Young, President and CEO of Lorus. "The expression of significant interest from an insider as well as other investors indicates a high degree of confidence in Lorus and prospects for the coming year."
About Lorus
Lorus is a biopharmaceutical company focused on the discovery, research and development of novel therapeutics in cancer. Lorus' goal is to capitalize on its research, preclinical, clinical and regulatory expertise by developing new drug candidates that can be used, either alone, or in combination with other drugs, to successfully manage cancer. Through its own discovery efforts and an acquisition and in-licensing program, Lorus is building a portfolio of promising anticancer drugs. Lorus is listed on the Toronto Stock Exchange under the symbol 'LOR'.
Forward-Looking Statements
This press release contains forward-looking statements within the meaning of Canadian and United States securities laws. Such statements include, but are not limited to, statements relating to: financings and corporate reorganizations, the establishment of corporate alliances, Lorus' plans, objectives, expectations and intentions and other statements including words such as "continue", "expect", "intend", "will", "should", "would", "may", and other similar expressions. Such statements reflect our current views with respect to future events and are subject to risks and uncertainties and are necessarily based upon a number of estimates and assumptions that, while considered reasonable by us, are inherently subject to significant business, economic, competitive, political and social uncertainties and contingencies. Many factors could cause our actual results, performance or achievements to be materially different from any future results, performance or achievements described in this press release. Such expressed or implied forward-looking statements could include, among others: our ability to continue to operate as a going concern; our ability to obtain the capital required for research and operations; the inherent risks in early stage drug development including demonstrating efficacy; development time/cost and the regulatory approval process; the progress of our clinical trials; our ability to find and enter into agreements with potential partners; our ability to attract and retain key personnel; changing market conditions; and other risks detailed from time-to-time in our ongoing quarterly filings, annual information forms, annual reports and annual filings with Canadian securities regulators and the United States Securities and Exchange Commission.
Should one or more of these risks or uncertainties materialize, or should the assumptions set out in the section entitled "Risk Factors" in our filings with Canadian securities regulators and the United States Securities and Exchange Commission underlying those forward-looking statements prove incorrect, actual results may vary materially from those described herein. These forward-looking statements are made as of the date of this press release and we do not intend, and do not assume any obligation, to update these forward-looking statements, except as required by law. We cannot assure you that such statements will prove to be accurate as actual results and future events could differ materially from those anticipated in such statements. Investors are cautioned that forward-looking statements are not guarantees of future performance and accordingly investors are cautioned not to put undue reliance on forward-looking statements due to the inherent uncertainty therein.
Lorus Therapeutics Inc.'s recent press releases are available through its website at www.lorusthera.com. For Lorus' regulatory filings on SEDAR, please go to www.sedar.com. For SEDAR filings prior to July 10, 2007, please refer to the company profile for Global Summit Real Estate Inc. (Old Lorus).
Contact:
Dr. Saeid BabaeiLorus Therapeutics Inc.1-416-798-1200 ext. 490ir@lorusthera.com

Thursday, November 26, 2009

Uniform Commerical Code


Selected Works of Leon E Trakman Dean
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The University of New South Wales
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Unpublished Papers «Previous Next»
Declaring Force Majeure: Veracity or Sham?
Leon E. Trakman, Un. of New South Wales
Abstract
The widespread practice by large scale producers, like Exxon Mobil and BP of declaring force majeure has created enormous legal and contractual problems. The practice is used, not only to respond to devastating disasters like Hurricane Katrina, but also to defects in pipelines amounting to little more than wear and tear The result is that customers are left waiting for goods or forced to pay higher prices until their suppliers decide to lift their declarations and resume performance. This article challenges such declarations, arguing that they often fail to comply with both the law set out in article 2-615 of the Uniform Commercial Code and the applicable contract of supply. Presenting alternatives to declarations of force majeure, the article argues that these alternatives are not only fairer, but also more commercially sustainable.

Sunday, November 22, 2009

mentally incompetent

Teen in school-gun case deemed mentally incompetent

Mar. 14--A state psychologist has evaluated Joplin school-gun case defendant Thomas White as permanently unfit to assist in his own defense.

The opinion of Dr. Patricia Carter with the Missouri Department of Mental Health concerning the mental competence of 16-year-old White prompted the Jasper County prosecutor's office to ask a judge for permission to seek a second expert opinion. Circuit Judge David Mouton granted that request at a hearing Friday in Jasper County Circuit Court in Joplin.

White is accused of firing an assault rifle into the ceiling of a hallway at Memorial Middle School on Oct. 9, 2006, and repeatedly attempting to shoot the school's principal as he was ushering White out of the building.

White was 13 at the time of the incident, but was certified to stand trial as an adult. He faces two counts of first-degree assault and single counts of armed criminal action, discharging a firearm in a school building and attempted escape.

Carter evaluated White in recent months at the order of the judge. Her report was filed with the court on Feb. 25 and remains a closed portion of the case file.

Motions filed by the prosecutor's office and White's public defender since then indicate that the psychologist found White mentally incompetent to assist in his defense and likely to remain so "for the foreseeable future," in the language of a statute governing mental competence in court proceedings. State law allows either side to seek a second opinion and the Jasper County prosecutor's made that request.

"In a case such as this, I think you need to be absolutely sure," Prosecutor Dean Dankelson said following Friday's hearing. "In the medical community, people often seek a second opinion and I think it's appropriate that we do so in this case."

White's public defender, Brett Meeker, filed a motion of opposition. She told the judge at the hearing that the prosecutor's office should not be allowed to seek the opinion of another expert in the Department of Mental Health simply because it does not agree with the first state expert. The prosecutor's office was seeking an order that White be evaluated this time at the Western Missouri Mental Health Center in Kansas City.

"They need to pick a doctor that's not a DMH doctor to do it," Meeker said.

The judge agreed and ordered that an "outside" expert's opinion be sought and paid for by the state. Mouton said the second expert will have 30 days to evaluate White and submit a report to the court unless they can show good cause for needing more time. He also ordered that White in the meantime continue to receive treatment at Hawthorn Children's Psychiatric Hospital in St. Louis.

The mental-competency issue must be decided before a trial date can be set in the case. If the court decides he's not competent to assist in his defense, usually the state attorney general's office will step in and initiate guardianship proceedings. The proceedings would consider an array of placement options for the juvenile.

Meeker said she could not say if placement back in the community in the custody of his parents would be an option. She said that it would be up to the Department of Mental Health to make that determination. But, she said, the boy's parents are "obviously not going to be cut out of the picture, or anything like that."

To see more of The Joplin Globe or to subscribe to the newspaper, go to http://www.joplinglobe.com/. Copyright (c) 2009, The Joplin Globe, Mo. Distributed by McClatchy-Tribune Information Services. For reprints, email tmsreprints@permissionsgroup.com, call 800-374-7985 or 847-635-6550, send a fax to 847-635-6968, or write to The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA.

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