By Onyewuchi Ojinnaka
South African retail market company, Shoprite Checkers (PYT) Limited, on Tuesday, through its counsel, Mrs Funke Adekoya (SAN), filed an application before a vacation judge at the Federal High Court Lagos, Justice Nicholas Oweibo.
Shoprite is seeking to set aside the mareva injunction restraining it from transferring its assets out of Nigeria, but the court declined the prayers.
Justice Mohammed Liman of the Federal High Court sitting in Lagos, Nigeria had in July, 2020, made the mareva injunction in favour of a Nigerian firm, A.I.C. Limited, which in 2018 secured a $10 million judgement against Shoprite in a breach of contract legal action.
A.I.C. Limited obtained the mareva injunction against the backdrop of Shoprite’s announcement to pull out of Nigeria.
In July 14, 2020 ruling on the suit by A.I.C.Limited against Shoprite, Justice Liman restrained Shoprite “from transferring, assigning, charging, disposing of its trademark, franchise and intellectual property in a manner that will alter, dissipate or remove these non-cash assets and other assets, including but not limited to trade receivables, trade payables, payment for purchase of merchandise, from within the jurisdiction of this honourable court.”
The judge also mandated the 2nd respondent, Retail Supermarket Nigeria Limited, “to disclose its audited financial statements for the years ending 2018 and 2019 to enable the judgement creditor/applicant determine the judgement debtor’s/respondent’s funds in its custody in order to preserve same in satisfaction of the judgement of the Court of Appeal in Appeal No: CA/L/288/2018.”
Justice Liman made the exparte order while granting an application filed by A.I.C. Limited, in a suit marked FHC/L/CS/881/2020 restraining Shoprite Checker (PYT) from leaving the country over alleged $47 million USD debt.
Others affected by the order alongside Shoprite Checker (PYT) are: Retail Supermarket Nigeria Limited, The Registrar of Trademarks and National Office for Technology Acquisition and Promotion (NOTAP), listed as second to fourth respondents in the suit.
However after the submission of Mrs Adekoya on Tuesday on the application of Shoprite to set aside the mareva injunction,
the vacation judge, Justice Oweibo declined granting the application, saying he needed to be convinced that the matter was urgent enough to warrant being heard during the court vacation. The judge directed Shoprite’s counsel to file an application to that effect.
Responding, the judgment creditor, A.I.C. Limited, through its counsel, Ayo Alebiosu, had informed the court that his chambers was served of the application yesterday (Monday) and that they are still within time to file response.
Following the submission of counsel to parties, Justice Oweibo adjourned the matter till September 7, 2020, for hearing of all applications.
Recall that the $10 million judgement which had not accrued interest was in 2018 entered in favour of A.I.C. Limited against Shoprite by Justice Lateef Lawal-Akapo of the Lagos State High Court in Ikeja.
Disatisfied with the judgment, Shoprite had gone on appeal but equally lost at the Court of Appeal and has now gone to the Supreme Court.
A.I.C. Limited through its lawyer, Prof. Taiwo Oshinpitan (SAN) had approached Justice Liman’s court through an exparte application for an order of Mareva Injunction restraining Shoprite Checker (PYT), described as a Judgment Debtor, its privies, officers, nominees, successors-in-title, subsidiaries or anyone acting through it or by it from transferring, assigning, charging, disposing of its trademark, franchise and intellectual property in a manner that will alter, dissipate or remove these non cash assets from the court’s jurisdiction.
The applicant, which described itself as judgement creditor, had also asked the court for an order of Mareva injunction restraining Shoprite Checkers (PYT) its privies, officers, nominees, successors-in-title, subsidiaries or anyone acting through it or by it from transferring, assigning, charging, disposing of its other assets including but not limited to trade receivables, trade payables, payment for purchase of merchandise within the jurisdiction of this Honourable court.
Furthermore, it asked the court for an order of Mareva Injunction restraining Shoprite Checker, its privies, officers, nominees, successors-in-title, subsidiaries or anyone acting through it or by it from transferring, assigning, charging, disposing of its other assets including but not limited to trade receivables, trade payables, payment for purchase of merchandise within the jurisdiction of the Court.
The applicant also requested for an order restraining Retail Supermarket Nigeria Limited, from making any financial payments whether by itself, privies. officers, nominees, successors-in-title, subsidiaries or anyone acting through it or by it to Shoprite Checker under the Administration and Technical Services Agreement between the Shoprite and it, in order not to render the Judgment of the Court of Appeal in Suit No: CA/L/288/2018 nugatory or the anticipated judgment from the Supreme Court in the appeal filed by it.
Besides, it asked for an order of the court compelling and mandating the Retail Supermarket Nigeria Limited, to disclose its Audited Financial Statements for the years ending 2018 and 2019 to enable it determine the amount of the Shoprite Checker’s funds in its custody in order to preserve same in satisfaction of the judgment of the Court of Appeal in Appeal No: CA/L/288/2018.
A.I.C Limited also asked the court to restraining the Registrar of Trademarks, from recognizing any sale or assignment of any trademark, franchise of whatever kind reflecting any transaction by either Shoprite Checker or the Retail Supermarket Nigeria Limited, in connection with the corporate existence or approving any pending royalty(ies), interest, management fee, trade payment for the Shoprite Checker Limited, of the anticipated judgment turn but not less than $12.4 million US Dollars and 10% post judgement interest per annum of the subsisting valid judgment debt.
The applicant also asked the court for an Order compelling and mandating the fourth Respondent (NOTAP) to disclose all pending requests by the Respondent for accrued payment in favour of Shoprite Checker, to be remitted outside Nigeria. And an order directing Shoprite Checker and Retail Supermarket Nigeria Limited, to maintain the status quo by preserving the terms of the Administration and Technical Services Agreement in order not to render the judgment of the Court of Appeal in this Suit No. Appeal No: CA/L/288/2018, nugatory
A.I.C. limited equally asked for an order directing the second respondent to file an Affidavit to show compliance with the Court’s Orders, within seven days of service of orders. Justice Liman, after listening to the submissions of Prof. Oshinpintan (SAN) on the exparte application and affidavit in support, deposed to by one Joshua Oluwagbemiga Akinyemi, had granted to all the reliefs sought by A.I.C. Limited against Shoprite Checker (PYT) Limited and other respondents.