KOTOYE V CENTRAL BANK OF NIGERIA (1985) 1 LRLR Vol 1 Page 124
KOTOYE V CENTRAL
BANK OF NIGERIA
Citation
(1985)
1 LRLR Vol 1 Page 124 (Reprint)
Alternative
Citation
(1985) 1
NWLR (PART 98) 419
The aggrieved Plaintiff
chairman filed a "Motion Ex-parte" restraining the CBN and the
Attorney-General of the Federation from any action concerning Societe Generale
Bank (Nigeria) Ltd. The Plaintiff attached an Affidavit of Urgency, on the same
day the trial Judge granted the reliefs.
The CBN and four
others, who later joined the suit, appealed against this Ruling. The Court of
Appeal allowed the appeal and set aside the orders.
The Appellant (Mr Kotoye)
then appealed to Supreme Court. Counsel for the Appellant rejected the Court of
Appeal’s opinion that there was no case of real urgency established. He further
argued that where an Appellate Court comes to the conclusion that an
undertaking as to damages was necessary but had not been given, it is no proper
ground to set aside the order.
The Supreme Court dismissed
the appeal and held that;
An undertaking as to
damages is the price which every applicant for an interlocutory injunction has
to pay. Save in recognized exceptions, no order for an interlocutory or interim
injunction should be made, ex parte or on notice, unless the applicant gives a
satisfactory undertaking as to damages. Therefore, where a court of first
instance fails to extract an undertaking as to damages where it should, an
appellate court ought normally to discharge the order of injunction on appeal.
This principle has been applied in cases such as ANIKE V. EMEHULU (1990)1 NWLR (PT. 128) 603 AT PAGES
610 – 611, TUCKER V. NEW BRUNSWICK TRADING COMPANY OF LONDON (1890) 44 CH. D.
249, ATTORNEY GENERAL V. ALBANY HOTEL CO. (1896) 2 CH.D. 696.
Notable points
·
Justification for the grant
of ex-parte Order of injunction
The basis of
granting any ex-parte order of injunction, particularly in view of section
33(1) of the constitution of 1979, is the existence of special circumstances,
invariably, all – pervading real urgency, which requires that the order must be
made, otherwise an irretrievable harm or injury would be occasioned to the
prejudice of the applicant.
Per Nnaemeka Agu
J.S.C
·
The meaning of Interim
and Interlocutory injunctions
The word
“Interlocutory” comes from two Latin words “inter” (meaning between or among)
and “locutus” meaning spoken) and strictly means an injunction granted after
due contest inter parties, yet when used in contradistinction to “interim” in
relation to injunctions, it means an injunction not only ordered after a full
contest between the parties but also ordered to last until the determination of
the main suit.
·
Difference
between Interim and Interlocutory injunctions
Applications for
interlocutory injunctions are properly made on notice to the other side to keep
matters in status quo until the determination of the suit. They are such that
they cannot, and ought not, be decided without hearing both sides to the
contest. Interim injunctions on the other hand are made to preserve the status
quo until a named date or until further order or until an application on notice
can be heard. They are also for cases of real urgency. But unlike ex parte
orders for injunction, they can be made during the hearing of a motion on
notice for interlocutory injunction, when because of the length of the hearing;
it is shown that irretrievable mischief or damage may be occasioned before the
completion of hearing.
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