KOTOYE V CENTRAL BANK OF NIGERIA
(1985) 1 LRLR Vol 1 Page 124 (Reprint)
                                                                         Alternative Citation
                                                (1985) 1 NWLR (PART 98) 419

The Central Bank of Nigeria upon investigating allegations of mismanagement by Societe Generale Bank (Nig) Ltd and taking instructions from the Federal Ministry of Finance, issued the Chairman of the Bank, Mr Kotoye, a written directive.

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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