De los Padres de Familia PREGUNTA RESPUESTA

The condition precedent for hearing of a petition is the advertisement of the petition fifteen days before the hearing.³⁹⁵ The procedure is for the petitioner to apply by way of motion on notice for an order of the court to advertise the petition. Where an order for advertisement of the petition is made, the petition shall be advertised once or as many times as the court may direct, in the Federal Gazette and in one national daily newspaper and one other newspaper circulating in the State where the registered

390 Kisari Investment Ltd v La-Terminal Co Ltd (2001) FWLR (pt 66) 766; Miden System Ltd v Effiong [2011] 2 N.W.L.R (pt 1231) 354; Mark v Eke [2004] 5 N.W.L.R (pt 865) 54.

391 Anyaoha v Chukwu [2008] 4 N.W.L.R (pt 1076) 31.

392 CWR, op cit, r. 17 (2) – while Form 5 is used for Affidavit of service of petition on members, officers or servants, Form 6 is used for Affidavit of service of petition on Liquidator.

393 Martin Schroder & Co v Major & Co (Nig) Ltd [2002] FWLR (pt 128) 1304.

394 Insolvency Rules, op cit, r. 4.9A.

395 CWR, op cit, r. 19 (2) (a); Companies Proceedings Rules 2004, r. 9.

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office or principal or last known principal place of business of the company is or was situate or in such other newspaper as directed by the court.³⁹⁶

The advertisement must state the day on which the petition was presented and the names and address of the petitioner and of his solicitor and shall contain a note at the foot thereof stating that any person who intends to appear at the hearing of the petition, either to oppose or support, must send notice of his intention to the petitioner or to his solicitor within the time and manner prescribed by the Rule. Where a petition is not advertised within the time prescribed in the Rules or the advertisement did not contain a note, it shall be deemed irregular and liable to be struck out, unless for sufficient reason given, the Court otherwise orders.³⁹⁷ The advertisement of the petition shall be in Form 9 or 10 in the appendix with such variations as the circumstances may require.³⁹⁸

In addition to the fact that the advertisement of a petition notifies all those interested in assets and continued existence of the company, as the contributories, members, directors and creditors, well in advance of the proposals to wind up the company so that they could file in their claims, if they so wish,³⁹⁹ it is a prerequisite or condition precedent for the appointment of Provisional Liquidator.⁴⁰⁰ However, it is important to note that the Court may refuse an application to advertise a petition if satisfied that the petition is not bona-fide but an abuse of the process of the court and

396 CWR, op cit, r. 19 (2) (b); Pharma-Deko Plc v Financial Derivates Co Ltd, supra, at 249; Air Via‟s case, supra; Fisher v Waste Management Ltd, unreported: Appeal No. CA/L/35/85 delivered on 14/5/87 in Abugu, op cit, pp. 758 – 759.

397 CWR, op cit, r. 19 (2) (c), (3).

398CWR, op cit, r. 19 (4). While Form 9 is for advertisement of petition, Form 10 is for advertisement of petition by minority shareholders.

399 Santana v Ajede (2000) 5 W.R.N 35 at 43.

400CWR, op cit, r. 21 (1); Savannah Bank of Nigeria Plc v Nigeria Deposit Insurance Corporation [2006] 9 N.W.L.R (pt 986) 424 at 441, paras E – H; General and Aviation Services Ltd v Thahal (2004) 4 SC (pt 1) 109 at 127.

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may proceed to terminate the petition by striking it out or dismissing it.⁴⁰¹ 5. Amendment of Petition

Amendment of petition involves the alteration of the contents of the petition. The alteration may be for purpose of correcting an error or rectifying a mistake or omission in the petition. However, it is arguable whether a petition can be amended, having regards to the specialized and unique nature of companies winding up proceedings.⁴⁰² In this study, it is the position that a petition can be amended.⁴⁰³ The basis for amendment of petition is lent credence and justified by the pronouncement of the court in Makinde v Orion Engr. Services (UK) Ltd,⁴⁰⁴ that:

The amendment of the petition to join Orion project Services Nigeria Limited as the 1^st petitioner for the purpose of complete composition of the action as to parties was properly made by the court below. Even the Almighty God amended creation to bring into existence woman to complement man and complete the sphere of human creation. The essence of the power of amendment is therefore to make whole what has been left undone either inadvertently or by blunder or oversight, in other to avoid injustice.

It is therefore important to state that an application for an amendment of petition is not granted as a matter of course. Although, the Federal High Court has the discretion to grant an application for amendment, such discretion must be exercised

401 Unifam Ind. Ltd v Oceanic Bank Int‟l Nigeria Ltd, supra, at 102, paras A – B; 103, paras F – G; First Equity Securities Ltd v Anozie supra, at 461, paras A – D.

402 Pharma-Deko Plc v Financial Derivates Co Ltd, supra, at 248.

403 CAMA, op cit, s. 552 (1); CWR, op cit, r. 183; Federal High Court (Civil Procedure) Rules, op cit, r.

17.

404 Supra at 30.

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judicially and judiciously. Thus, where the purpose for an amendment of petition is to clarify the issues in controversy between the parties or to prevent any possible injustice in the matter and is not to overreach the adverse party, an amendment will be granted.⁴⁰⁵ Where however, the amendment is for petition that is fundamentally defective ab initio, it is incompetent and does not exist at all in law. Consequently, such incompetent petition or process cannot be amended.⁴⁰⁶