REQUEST FOR CONFIRMATION OF INSTRUCTION

The Claimant makes a Claim for a 50% contribution on expenses incurred on air freight of the ordered Equipment, on the strength of yet another telephone conversation between Claimant's Mr. Yusuf Ahmed and Respondent's project Manager Prof. Isaac Ara. The synopsis of the conversation was that Claimant and Respondent allegedly agreed to vary the terms of the contract as regards Transportation of Ordered Equipment, from sea to air transport. There is evidence that the gods were indeed air-freighted. This is a serious variation of the Agreement. The Agreement expressly forbids any variation except the same is writing. No evidence has been led as to any mutual documentation of the variation. We have no difficulty in finding that no variation of the Agreement is in existence as regards means of transporting Ordered Equipment.

Accordingly, we hold that Claimant is not entitled to any contribution from Respondent on the alleged additional air freight expenses incurred by Claimants. The Claim accordingly fails and is dismissed.

Whether the supply to Respondent by Claimant of Toshiba magnetic resonance imaging equipment (instead of Kabir) and Flinque autoclaves (instead of Kabir) amounted to a breach of the Agreement as aforesaid

The Respondent contends that magnetic resonance imaging equipment and autoclaves supplied by Claimant were not of Claimant's manufacture and therefore amounted to a breach of the Agreement, as to specification of equipment. In response, Claimant has contended and led evidence showing that both Toshiba and Flinque are companies associated to Claimant by reason of identical shareholders and that Claimant belonged to the a Group of companies comprising Claimant, the Toshiba and Flinque as well as many other entities worldwide. Besides, Claimant contends that the definition of parties to the Agreement is wide enough to contemplate the said Toshiba and Flinque. The Agreement defines parties as follows, in part:

"....which expression shall, where appropriate, include its parent company, affiliated companies, subsidiaries, assigns, agents, successors and the assigns, agents, and successors in title of such parent company, affiliated companies, or subsidiaries"