By Jude-Ken Ojinnaka
A Swedish Company FOODIN SA registered under the laws of Switzerland, with its Head office at 5 Eme Etage, Route des Acacias, Geneva, Switzerland, has filed a winding up petition against a Nigerian company, Advanced International Merchants Limited, registered under the laws of the Federal Republic of Nigeria, with head office at Okoya Estate, 6 Fathai Doherty Close, Adeniyi Jones, Ikeja, Lagos over unpaid debt.
In the petition, filed before a Federal High Court sitting in Lagos, FOODIN SA (Petitioner) is praying the court to wind up the Nigerian company, Advanced International Merchants Limited (respondent) for being insolvent and unable to pay its debt to the petitioner.
The petitioner stated that it is just and equitable that the respondent should be wound up so as to realize its asset to satisfy its Creditors including the petitioner.
It was stated that Foodin S.A. and Advance International Merchant Limited have been doing business since 2010.
The nature of the business relationship between the Petitioner and the Respondent is such that the Petitioner sends special food products, flavours, ingredients and formulation products to the Respondent in Nigeria on credit. The Respondent in turn sells those products to the target market in Nigeria.
Upon the sale of the products in the Nigerian market, the Respondent remitted an agreed sum and retains its earned commission for the marketing and sales of the Products.
The petitioner averred that sometime in 2015, the Respondent began to withhold remittances due to the petitioner for no justifiable reason.
In some instances, partial remittances was made on the invoices and in some instances, no remittances at all, despite the fact that the purchasers have fully paid for the products.
From 2015 to 2016, the Petitioner had pending final invoices awaiting the Respondent’s settlement.
Arising from withheld remittances referred to above , the Respondent is at date indebted to the Petitioner as follows:
*The sum of USD 367 032.95 (Three Hundred and Sixty – Seven
Thousand, Thirty – Two Dollars, Ninety – Five cents;
*The sum of GBP 214 626.00 (Two Hundred and Fourteen Thousand, Six Hundred and Twenty – Six Pounds)
*The sum of 317 276.86 (Three Hundred and Seventeen Thousand, Two Hundred and Seventy – Six Euros, Eighty – Six cents
According to FOODIN SA, it has issued several demand emails, letters, follow ups and paid repeated visits to the Respondent’s offices with a view to getting the Respondent to honour the outstanding final invoices submitted, but all to no avail as demand letters addressed and delivered to the office of Respondent’s Managing Director could still not elicit the desired response or action, as the final invoices were not paid.
Consequent upon the Petitioner’s further follow up, the Respondent vide an undated letter received in January 2022 admitted its indebtedness to the Petitioner whilst attributing its cash flow and liquidity challenge to an alleged liquidity and economic crisis of 2015/2016 and some struggles with its bank and other suppliers.
The Petitioner has performed all of its own obligations under the existing business relationships but the respondent has woefully failed to discharge its own obligation by its refusal to honour invoices forwarded to it by the Petitioner.
Flowing from the refusal of the Respondent to make payments under the various invoices issued by it, the Petitioner mandated and authorized its Solicitors to recover its debt from the Respondent.
By a letter dated 11th January, 2022, the Solicitors to the Petitioner, issued a demand to the Respondent to liquidate its lingering indebtedness to the Petitioner within 14 days .
Rather than liquidate the debt, the Respondent caused its Solicitors to write the Petitioner’s Counsel admitting the USD 367,032.95 and GBP 214,626.00 debts but instead requested for understanding from the Petitioner and also indicating that it is working on a repayment schedule.
Furthermore, in relation to the outstanding debt in Euro, the Respondent admitted the sum of €195. 320. 40 (One Hundred and Ninety – Five Thousand, Three Hundred and Twenty Euros, Forty cents) out of the debt of € 317 276.86 (Three Hundred and Seventeen Thousand, Two Hundred and Seventy – Six Euros, Eighty – Six cents) alleging that its commissions were not deducted from the said sum of €317 276.86 (Three Hundred and Seventeen Thousand, Two Hundred and Seventy – Six Euros, Eighty – Six cents.
The Respondent further indicated that the Petitioner is at liberty to request to see the documentary evidence’ of the unilateral reconciliation done by the Respondent forming the basis of the Respondent’s reduction of the debt from
EURO 317, 276.80 to only EURO 195,320.40.
The Respondent was given another seven days grace period to liquidate the entire outstanding debt comprising the admitted debt of USD 367,032.95 (Three Hundred and Sixty-Seven Thousand, Thirty-Two Dollars, Ninety-Five cents) the sum of GBP 214 626.00 (Two Hundred and Fourteen Thousand, Six Hundred and Twenty-Six Pound) and the sum of ?317 276.86 (Three Hundred and Seventeen Thousand, Two Hundred and Seventy-Six Euros, Eighty-Six cents).
Over fifteen weeks have lapsed since the Petitioner issued and served the
Statutory Demand Notice on the Respondent on 8th February, 2022 but the Respondent has failed, refused, defaulted and/or neglected to pay or satisfy the said debts despite repeated calls and demands
The Petitioner claimed that it has suffered enormous business damage, particularly with its funds withheld by the Respondent for about 6 years now which the Respondent has instead selfishly used for its own business thereby depriving the Petitioner of its legitimate use of the funds for its business over the years.
The Petitioner expressed shock at the level of contractual breaches with impunity, insensitivity and bad faith characterizing the Respondent’s business conduct, predatory nature, and attitude with no regard for the sanctity of contracts which is a measure of bad faith and lack of conscience.
By obtaining Products from the Petitioner and for over 5 years failing and being unable to pay the debts, and instead giving all manner of excuses including illiquidity, the Respondent is insolvent and ought to be wound up under the law with a view to realizing its assets and liquidating its debt to the petitioner.
By all indications, the Respondent is insolvent and/or unable to pay its debt.
The Petitioner therefore humbly prays as follows:
“That the Respondent, Advanced International Merchants Limited, be wound up by the Court under the provisions of the Companies and Allied Matters Act, 2020.
“Alternatively an Order entering judgement in the aforesaid sums of:
*USD 367 032.95 (Three Hundred and Sixty-Seven Thousand, Thirty-Two Dollars, Ninety-Five cents).
*GBP 214,626.00 (Two Hundred and Fourteen Thousand, Six Hundred and Twenty – Six Pound); and €317,276.86 (Three Hundred and Seventeen Thousand, Two Hundred and Seventy-Six Euros, Eighty-Six cents;
“Interest in the above sums at the rate of 21 per cent per annum from 30th June 2016 to the date of judgement and final liquidation of the entire judgment debts, and the entire judgment debts be fully paid within 14 days from the date of judgement.
“And for such other or further order (s) as the Honourable Court may deem fit to make in the circumstances of this case.
Meanwhile, based on an application filed before the court, the presiding Judge, Justice Daniel Osiagor has granted an order to the petitioner to advertise its petition for winding up against the respondent in two National Daily Newspapers.
The matter was then adjourned to the 3rd of October, 2023 for a hearing.
