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UCHE OMO, J.C.A. (Presided and Read the Leading Judgment)
AKINTOLA OLUFEMI EJIWUNMI, J.C.A.
DENNIS ONYEJIFE EDOZIE, J.C.A.
AFRO CONTINENTAL NIGERIA LTD.
(For and on behalf of themselves and as representatives of the Onishere Community of Ifesowapo Local Government Area of Ondo State)
G.O.K. Ajayi, ESQ., S.A.N. with him, S.A. Afolabi ESQ. – For the Appellant.
Afe Babalola, ESQ., S.A.N. with him, L.O. Fagbemi, ESQ. – For the Respondents.
APPEAL – Grant of injunction – Failure of trial court to extract undertaking as to damages – Course open to Court of Appeal – Whether to discharge the order of injunction or to extract the necessary undertaking.
APPEAL – Grant of injunction – Failure of trial court to extract undertaking as to damages – Whether Court of Appeal can so extract – Decision in Kotoye v. C. B. N. (1989) 1 NWLR (Pt. 98) 419 – Whether given per incuriam.
APPEAL – Power of Supreme Court under section 22, Supreme Court Act, 1960 – Extent of.
COURT – Court of Appeal – Power of to extract undertaking as to damages in application for injunction where trial court failed to do so – Where derived.
COURT -Court of Appeal – Power of under Section 16, Court of Appeal Act, 1976 – Extent.
COURT – Supreme Court – Power thereof under section 22, Supreme Court Act, 1960 – Extent of.
DAMAGES – Grant of injunction – Failure of trial court to extract undertaking as to damages -Whether Court of Appeal can so extract- Decision in Kotoye v. C. B. N. (1989) 1 NWLR (Pt. 98) 419 – Whether given per incuriam.
DAMAGES – Interim or interlocutory injunction – Pre-condition for grant – Undertaking as to damages – Nature and purpose of.
INJUNCTION – Grant of injunction – Failure of trial court to extract undertaking as to damages – Course open to Court of Appeal – Whether to discharge the order of injunction or to extract the necessary undertaking.
INJUNCTION – Grant of injunction – Failure of trial court to extract undertaking as to damages – Whether Court of Appeal can so extract – Decision in Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419- Whether given per incuriam.
INJUNCTION – Grant of injunction – Undertaking as to damages – Trial court failing to extract – Whether Court of Appeal can extract – Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419 and Anike v. Emehelu (1990) 1 NWLR (Pt. 128) 603 revisited and explained.
INJUNCTION – Interim or interlocutory injunction – Pre-condition for grant – Undertaking as to damages – Nature and purpose of.
JUDGMENT AND ORDER – Decision given per incuriam – Meaning of.
PRACTICE AND PROCEDURE – Injunction – Grant of injunction – Failure of trial court to extract undertaking as to damages – Whether Court of Appeal can so extract – Decision in Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419 – Whether given per incuriam.
STARE DECISIS – Decision given per incuriam – Meaning of.
STARE DECISIS – Decision of higher court – Bindingness of – When can be departed from.
STARE DECISIS – Doctrine of – Requirement of.
WORDS AND PHRASES – Decision given per incuriam – Meaning of.
OMO, J.C.A. (Delivering the Leading Judgment):
By a writ dated 14/6/89, the plaintiffs/respondents sought various declaratory orders against the revocation by the defendants/respondents of its Certificate of Occupancy in respect of two portions of land covering over 5,(100 acres situate at Ajegunle Onishere in the Ifesowapo Local Government Area of Ondo, State. An order of perpetual injunction restraining the defendants/respondents, its agents, servants or functionaries from “trespassing on or unlawfully taking possession of the aforesaid land,” was also claimed.
Thereafter, the plaintiffs/respondents filed a motion on notice seeking an order of injunction restraining the defendants/respondents from taking possession or rejecting or disturbing the applicants’ possession of the land in dispute. This motion was argued on 21/6/89 and on the 13/7/89 the learned Judge – Dr. O.O. Aguda, J. delivered his ruling in which he granted the application as prayed, without extracting any undertaking as to damages from the plaintiffs/respondents.
Shortly after, a copy of the court’s order was served on the appellant which though not a party to the proceedings thus far, has an interest in the land in dispute which had been disclosed in a counter-affidavit during the hearing of the application. On becoming aware of the proceedings in the High Court of Ondo State, the appellant appealed to the Court of Appeal for leave to appeal against same as an “Interested Party” and also to be joined as a co-defendant. Both applications were granted. Thereupon the appellant filed this appeal against the ruling of Aguda, J., aforementioned.
This appeal covers a very narrow compass. In his short brief filed, the appellant has stated the only issue for determination thus:
“Whether the learned trial Judge was right in granting the order for interlocutory injunction without extracting an undertaking as to damages from the plaintiffs.”
The 1st to 9th plaintiffs/respondents in their brief, while accepting the issue for determination framed by the appellant, have added a second issue for determination, to wit
“Whether or not this Honourable Court will in the circumstances of this case order the plaintiffs to give the undertaking raised in the Respondents’ Notice within a specified period and order that the lower court’s order of injunction should continue”
The Respondents’ Notice to which reference has been made is a Notice of Intention to contend that the Decision of the court below be varied pursuant to the provisions of Order 3 Rule 14 of the Rules of this Court dated 15/5/90. Therein the grounds on which the respondents rely for so contending are set out as follows:
“1. It is unlikely that if the matter of the application for the interlocutory Injunction were to be remitted to the trial court to be heard all over again, the injunction would be refused, having regard to the facts surrounding the circumstances of this case.
The undertaking referred to is raised in ground 7 above. This notice was deemed filed pursuant to an application by the defendants/respondents, which was not opposed b‘y appellant’s counsel. Both issues for determination are inter-related, they were argued by counsel together and will be so considered in this judgment. They may be rendered together thus:
“Whether the learned trial Judge was right in granting the order of interlocutory injunction without extracting an undertaking as to damages from the plaintiffs. If he was not, whether this Honourable Court will in the circumstances order the plaintiffs/respondents to give the necessary undertaking and the order of injunction of the lower court to continue.”
The submission of the appellant, which is very brief and to the point, is that the learned trial Judge was wrong in making his order of injunction without extracting an undertaking as to damages from the plaintiffs/respondents, and that the only course open to this Court on appeal is to discharge the order by the court below. It is not open to this Court to obtain from the appellant the necessary undertaking whilst allowing the order of injunction to remain. For this submission Counsel relied on the Supreme Court decision in N.A.B. Kotoye v. Central Bank of Nigeria and 7 Ors. (1989) 1 N.W.L.R. (Part 98) p.419 (450/451). Two main issues were canvassed before the Supreme Court in that appeal and they are set out in the above Report thus:
“1. Can an interlocutory application for injunction until the final determination of the substantive suit, be heard and granted ex parte, that is, without hearing all the parties to be affected by it in view of the provisions of Section 33 of the Constitution of the Federal Republic of Nigeria, 1979?
The second issue is the subject-matter of the present appeal, and on it appellant relied on the statement of the law by Nnaemeka-Agu, J.S.C., at pages 450 and 451 of the Report as follows:
“It is my view that a necessary corollary to the fact that an undertaking as to damages is the price that an applicant has to pay for the order of interlocutory injunction is that failure to give the undertaking leaves the order, without a quid pro quo, and, so should be a ground for discharging the order. This ought to be more so in respect of ex parte orders in which the order is being made without the other side being heard. page 450.
“It is, therefore, my view that save in recognized exceptions, no order for an interlocutory or interim injunction should be made, ex parte or on notice save upon the condition that the applicant gives a satisfactory undertaking as to damages” pages 450-451. “In my judgment, 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” p.451.
Justice Augustine Nnamani, J.S.C., of blessed memory, also held on this issue that:
“It is settled that an undertaking-to pay damages is the price which the person asking for interlocutory injunction has to pay, and it ought to be required on every interlocutory order ………. The undertaking to pay damages applies whether the plaintiff has not been guilty of misrepresentation, suppression or other default in obtaining the injunction” – page 456 para. E-F.
In answer to the submissions of G.O.K. Ajayi, S.A.N. who incidentally is counsel for the appellant in the present appeal, Nnaemeka-Agu, J.S.C. further stated that
“Chief Ajayi has again suggested that where such an undertaking as to damages was necessary but not considered or given, an appellate court should order that it be given. I do not agree.”
and went on to explain the rationale for his so holding thus:
“This is for the simple reason that invariably the damage, if at all, is done within a few days. It will serve no useful purpose to make an order on appeal which will have the effect of, as it were, closing the stable after the animal has bolted away. In my judgment, 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.” page 451.
At pages 456/7 of the same Report Justice Nnamani, J. S.C. confirmed these views of his learned brother on G.O.K. Ajayi’s submission in the following words:
“Chief Ajayi has submitted that rather than set aside the orders where the trial court which granted them has not extracted any undertaking, the Court of Appeal ought to extract the undertaking. I just suspect that the damage may well have been suffered by the Defendant before reaching the Court of Appeal. Besides the Court of Appeal could be accused of intervening on one side of the dispute” – pages 456/457
Plaintiffs/respondents in their brief however, agreeing that an undertaking in damages is necessary and should have been extracted from them, have submitted that this Court can and should order such an undertaking, the terms of which have been offered by them in their brief and set out earlier in this judgment. It is their further submission that the decision in Kotoye v. C.B.N. (supra) relied on by appellant recognized that there are circumstances where interlocutory injunctions can be granted without an undertaking as to damages being given, described variously in that judgment as “recognized exceptions” (Per Nnaemeka-Agu, J.S.C.) and “special circumstances” (per A.G.O. Agbaje, J.S.C.). Nnaemeka-Agu, J.S.C it was also pointed out stated that an appellate court should discharge an order of injunction made without an undertaking in damages in normal circumstances; recognizing the existence therefore of abnormal, special or unusual circumstances when an appellate court should not discharge such an order. Counsel for plaintiffs/respondents submitted that the circumstances of this case is one in which no undertaking as to damages is necessary because the plaintiff’s right is “perfectly clear” and so no damage is likely to arise from granting an injunction to restrain an interference with it, vide Adamson v. Wilson 3 N.R. 368. The clarity alleged is based on (a) the fact that the claims of the plaintiffs/respondents is grounded on the contention that the land in dispute (their land) was not properly acquired by the Ondo State Government under the Land Use Act (1978); and (b) that it would appear from the admission of the appellant in affidavit filed by it in the course of this dispute, that the pieces of land being claimed by plaintiffs/respondents and the appellants are different. If this is correct, then neither the appellant nor the defendants/respondents can suffer any damage in respect of an order of injunction attached to pieces of land in which they have no interest. Plaintiffs/respondents final submission is that Kotoye’s care (supra) must be distinguished from this present case on appeal for the following reasons:
(i) “The Supreme Court was neither called upon to decide nor did it take into consideration the purport or the effect of Section 16 of the Court of Appeal Act, 1976 in instances of this nature in Kotoye. Neither does the Supreme Court possess any power similar to S. 16 of the Court of Appeal Act. The provisions of S. 16 ……… clothes the Court of Appeal with jurisdiction to entertain certain matters like the High Court in certain circumstances.”
(ii) “In Kotoye’s (supra) no Respondents’ Notice in terms of that as filed in this case was ever filed or raised, neither did counsel in that case PROPERLY Volunteer an undertaking on appeal.”
(iii) “Unlike in this case where no appeal has arisen in all other material respects against the learned trial Judge’s exercise of discretion in the matter, when discretion is of the essence, there was such issue raised in that respect in KOTOYE.”
(iv) The finding of Nnaemeka-Ago, J.S.C. in which he disagreed with the suggestion of G.O.K. Ajayi, S.A.N. that appellate court should not order an undertaking where it was not given in the court below wrongly suggests that an appellate court “cannot and must not insert an undertaking as to damages,” and arose from a consideration of other submissions before him.
(v) The decision in Anike v. Emehelu & 3 Ors. (1990) 1 N.W.L.R. (Part 128) 603 (612E) which considered the case of KOTOYE and its effect in instances of this nature” held that the Court of Appeal can order an undertaking as to damages in the circumstances of the present case.
The first point which I would consider is whether or not this is a proper case in which an undertaking as to damages is necessary. If it is not whether such an undertaking was ordered or not is immaterial, and the non-extraction of an undertaking should not be a cause for complaint. Counsel for the plaintiffs/respondents has submitted that an undertaking is unnecessary where the case of the person in whose favour the order of injunction is ordered is “perfectly clear.” For this Adamson v. Wilson (supra) has been relied upon. It was also held in that case that an undertaking would be unnecessary where damage is unlikely to occur from a grant of an order of injunction. Plaintiffs/respondents have given two reasons why they say such an undertaking is unnecessary here. The first is that their case is very clear because the acquisition of the land in dispute is patently wrong being contrary to the Land Use Act, 1978. This is because it is said that the notice of acquisition did not indicate what “public purpose” the pieces of land are intended, for vide L. S. D. P. C. v. Foreign Finance Copp. (1987) 1 N. W. L. R. (Part 50) 413. The answer to this submission obviously is that at the stage when the application, subject-matter of this appeal, was filed, pleadings had not been settled. If the defendants/respondents’ pleading when filed does not reveal the relevant “public purpose” or what it relied on does not so constitute, then and only then will the acquisition be patently wrong on this score. It cannot therefore be very clear at this stage that the acquisition is patently wrong. The second reason is that both parties are not disputing over the same pieces of land, having regard to the purported admission in one of the affidavits filed by the appellants. In this connection reference was made to some discrepancies in the Acquisition Notices dated 11/1/89 and 16/2/81 which were exhibited along with affidavits filed by the appellant in support of his application for leave to appeal dated 5/1/90. Here again the plaintiffs/ respondents did not succeed in conclusively showing that the pieces of land in dispute were different. The discrepancies to which attention was drawn were explained by appellants’ counsel, and the tenor of all the affidavits filed both in the High Court and in this Court in this matter show clearly that the parties are ad idem as to the pieces of land in dispute. Any order of injunction attaching thereto will therefore affect their interest in the land. The conclusion arrived at therefore must be that this is not a proper case in which it can be held that an undertaking in damages is unnecessary.
The second issue to be addressed is whether or not the case of Kotoye (supra) can be distinguished from this case, so as to come to the conclusion that this Court can extract from the plaintiffs/respondents the undertaking as to damages which the High Court failed to extract from them, and which they have now offered in their notice of intention to contend that the decision of the High Court be varied. In the process I will have to consider whether the decision in Anike v. Emehelu (supra) delivered by the Enugu Division of this Court was properly arrived at, and whether or not we are bound to follow it in determining this appeal. Of all the five reasons adduced by the plaintiffs/respondents why Kotoye’s case is distinguishable from the present case, which are set out above and earlier in this judgment, only two – nos. (i) and (v) – need be seriously considered. Reason number (ii) is to the effect that a distinguishing factor between the two appeals is that no respondents’ notice was filed in Kotoye’s case and no undertaking filed, as was done in the present appeal. This difference is really of no importance because what counsel for the plaintiffs/respondents’ has urged is that the Court of Appeal can extract the necessary undertaking whilst considering the case on appeal. Whether an undertaking is offered before the hearing of the appeal (as in this case) or in the course of hearing (as in Kotoye’s) cannot be of any significance because in both cases the undertaking as to damages was made by counsel who has the right to do so, vide East Molesley Local Board v. Lambeth Waterworks Co. 1892) 3 CH. 289. In any event the Supreme Court in Kotoye’s case refused to hold that the Court of Appeal should have extracted such undertaking on appeal not because the respondents in that case had failed to offer one before the hearing, or because a respondent’s notice including such an undertaking was not filed. With regard to the third (iii) reason, it is indeed true that the grant of the injunction by the trial court was challenged in Kotoye’s case for various reasons, principal among which was that the ex pane application filed should not have been entertained and an order made which should have been more appropriate for an interim injunction, when the other side was not heard. The exercise of its discretion by the court to entertain the ex pane application for an injunction being further flawed because there was no need for an urgent hearing disclosed by the certificate of urgency. But at the end of the day the Supreme Court was faced with a submission supported by English authorities, some of which have also been repeated here, that since an undertaking in damages was not extracted by the trial court, the Court of Appeal, instead of setting aside the injunction granted, should have obtained such an undertaking and permitted the injunction to continue in operation. This is the very same issue raised in this appeal. The fourth reason is to the effect that Nnaemeka-Agu, J.S.C. found against the Court of Appeal obtaining an undertaking as to damages because of the other submissions of G.O.K. Ajayi, S.A.N. The most relevant submission, which as it were is said to have tipped the scale, is reflected in this quotation from the judgment of Nnaemeka-Agu, J.S.C.:
“While Chief Ajayi does not seriously dispute that an undertaking ought to be given, he submitted that there are exceptions: that, failure to give it ought not result in the discharge of the order of interlocutory injunction and that in England where a Judge fails to make an order for an undertaking, it could be inserted by the Registrar……………” The known exceptions are not relevant in this case. I do not think that any Registrar of any court in Nigeria has power to insert such an order for an undertaking where a Judge who made the order for injunction failed to order it.”
The suggestion here is that G.O.K. Ajayi s submission was not entertained because the Supreme Court took the view that since no Registrar in Nigeria has the power to insert an undertaking as to damages as his “counterpart” can do in England, the English practice of obtaining undertaking as to damages by the Court of Appeal cannot be applied in this country. Whilst it must be conceded that this difference in practice in both countries may have aided the rejection of the submission, it will not be right to hold that it was an important factor. As shown by portions of the judgments of the learned Justices of the Supreme Court who considered this aspect of the appeal in some detail, which have been set out earlier, the grounds on which the decision was arrived at are much more wide-ranging.
The remaining two reasons for distinguishing submitted (i) and (v) are the most important. Before proceeding to consider them, it will be beneficial to set them out again. They are that
(i) “The Supreme Court was neither called upon to decide nor did it take into consideration the purport or the effect of Section 16 of the Court of Appeal Act, 1976 in instances of this nature in Kotoye. Neither does the Supreme Court possess any power similar to S.16 of the Court of Appeal Act. The provisions of S.16……… clothes the Court of Appeal with jurisdiction to entertain certain matters like the High Court in certain circumstances”
(v) The decision in Anike v. Emehelu & 3 Ors. (1990) 1 N.W.L.R. (Part 128) 603 (612E) which considered the case of KOTOYE and “its effect in instances of this nature” held that the Court of Appeal can order an undertaking as to damages in the circumstances of the present case.
The first sentence in the first reason above is correct. There is nothing in the judgment(s) of the Supreme Court Justices to show that the attention of that Court was drawn in Kotoye’s case to the provisions of section 16 of the Court of Appeal Act, 1976. That section provides that:
“16. The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks it fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
But the second sentence is equally incorrect. The Supreme Court is clothed with identical power, which is set out in Section 22 of the Supreme Court Act No. 12 of 1960, in the very same words as S.16 of the Court of Appeal Act set out above. The suggestion that the Supreme Court failed to advert its mind to section 16 of the Court of Appeal Act because it has no such provisions in its enabling Act is therefore completely wrong. The power possessed by the Supreme Court must therefore mean, if the submission of plaintiffs/respondents’ counsel is right, that the Supreme Court itself can extract the undertaking as to damages. That is however not the issue here. What is still important for consideration is whether the Supreme Court would have come to a different decision if it had considered the provisions of section 16 of the Court of Appeal Act (supra), in which case it may be possible to hold that its decision was given per incuriam on the issue being canvassed; or that its failure to consider that specific section has made no difference to the decision it has arrived at. If the former is the case, then the decision may not be binding on this Court, but if it is the latter this Court cannot resile therefrom.
Of the five learned Justices of the Supreme Court who sat on the Kotoye’s appeal, only three of them Nnaemeka-Agu, Nnamani and Karibi-Whyte, JJ.S.C., dealt specifically with this issue of the Court of Appeal obtaining an undertaking as to damages. The first two Justices gave it a fuller treatment. The reason for their refusal to hold that the Court of Appeal can obtain such an undertaking is that it is a quid pro quo to an order of injunction which must be obtained at the time when that order is made and not after. This is because it is crucial for the protection of the interest of the party against whom such an order is made; and that a failure to obtain same promptly may lead to unnecessary and serious damage to such interest. Whilst noting that it is the practice in England to obtain such undertaking in the Court of Appeal, where the trial court has failed to do so, as a price for allowing the order of injunction to continue, the Justices refused to follow that practice, without specifically giving any reasons for so doing. As stated earlier, the learned Justices of the Supreme Court did not advert to the provisions of Section 16 of the Court of Appeal Act which was also not urged on them. The words of that section in my view are sufficiently wide as to empower the Court of Appeal to obtain an undertaking as to damages from a party on appeal which the court of hearing had failed to do because, inter alia, it “generally” has “full jurisdiction over the whole proceedings” of an appeal before it “as if the proceedings had been instituted in the Court of Appeal as a court of first instance” If the Court of Appeal also has the power to “re-hear the case” on appeal “in whole or in part” then I see no reason why it cannot extract an undertaking which counsel is empowered to give on behalf of his client, and which he will very willingly give as a price for the continuation of an order of injunction in his client’s favour. Having failed to provide the quid pro quo in the court of first instance, he can still pay the price for such failure in the Court of Appeal. Whatever the interim harm that may have been done to the party restrained by the order of injunction it can be amply compensated by an order made in the Court of Appeal, which order, be it remembered, is retrospective in its effect to the date when the order of injunction was made vide Minnesota Mining and Manufacturing Co. v. Johnson & Johnson Ltd. (1976) Fleet Street Patent Law Reports 140 at p.147 where it was stated, inter alia, by Brickley, J. thus:
“Accordingly, upon the plaintiff giving an undertaking in damages, which should relate back to the date when injunction was granted, I would dismiss this motion. If the appeal fails, the plaintiff will be under no liability in respect of the undertaking. Should the appeal succeed, the court will be in a position to ensure that the defendant is compensated for any damage it may have suffered in consequence of the injunction.”
My view that the Court of Appeal can exercise this power under Section 16 of the Court of Appeal Act accords with that of my learned brother, Uwaifo, J. in Anike v. Emehelu (supra). In coming to this conclusion in the face of the decision of the Supreme Court in Kotoye’s case, I do so, with the greatest respect to the learned Justices of that Court, in the belief that if their attention had been drawn forcefully to the provisions of Section 16 aforementioned, they would have arrived at a different decision. To that extent it is my respectful conclusion that the decision in Kotoye was taken per incuriam. Lord Goddard in Huddersfield Police Authority v. Watson 1947 2 A.E.R. 193 (196) stated of such a decision as follows:
“What is meant by giving a decision per incuriam is giving a decision when a case or statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute.”
In Morelle Ltd. v. Wakeling (1955) 1 A.E.R. 708 (715), Evershed, M.R. opined thus:
“As a general rule the only cases in which decisions should be held to have been given per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned: so that in such cases some part of the decision or some step in the reasoning on which it is based on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam, must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be of the rarest occurrence.”
In Lancaster Motor Co. (London) Ltd. v. Bremith 19412 A.E.R. 11 the Court of Appeal (Sir Wilfred Greene, M.R., Clausen, Goddard, L.JJ) “Where the court has construed a statute or a rule having the force of statute its decision stands on the same footing as any other decision on a question of law. But where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. “
In two of these cases the locus classicus on the binding force of precedent Young v. Bristol Aeroplane Co. Ltd. 1944 2 A.E.R. 293 was referred to. The powers of the Court of Appeal under Section 16 of the Court of Appeal Act are very wide vide Ejowhomu v. Edek-Eter Ltd. (1986) 5 N.W.L.R. (Part 39) p.1; Kalu v. Mbuko (1988) 3 NWLR (Pt.80) p.86; Makanjuola v. Balogun (1989) 3 N. W.L. R. (Part 108) 192. I have no doubt that had this statutory provision been considered by the Supreme Court in Kotoye’s case, it may have arrived at a different decision.
Confining myself strictly to the judgment in Kotoye’s case, I agree with my learned brother Uwaifo, J.C.A. that the rather rigid stand taken on this issue was very much influenced by the way ex pane injunctions have been granted indiscriminately in the past. Thus, Nnaemeka-Agu, J.S.C. in his judgment after holding as follows:
“It is my view that a necessary corollary to the fact that an undertaking as to damages is the price that an applicant has to pay for the order of interlocutory injunction is that failure to give the undertaking leaves the order, without a quid pro quo, and, so should be a ground for discharging the order. This ought to be more so in respect of ex parte orders in which the order is being made without the other side being heard……..”
Proceeded to observe as follows:
“Above all, this Court ought to take notice of the numerous cases of abuse of ex parte injunctions that have come up in recent times. The operation of a bank has been halted on an ex parte order of injunction granted to a person who had been removed as a director of the bank. Installation ceremonies of chiefs have been halted in the same way even though the dispute had been dragging on for years. The convocation ceremony of a university has been halted on an ex parte application by two students who failed their examinations. As the courts cannot prevent such applicants from exercising their constitutional rights by stopping such applications, they can, and ought, at least see that justice is done to the victims of such ex parte applications and orders by ensuring that the applicant fully undertaken to pay any damages that may be occasioned by any such order which may turn out to be frivolous or improper in the end.”
He then concluded thus:
“It is, therefore, my view that, save in recognized exceptions, no order for an interlocutory or interim injunction should be made, ex parte or on notice, save upon the condition that the applicant gives a satisfactory undertaking as to damages. Chief Ajayi has again suggested that where such an undertaking as to damages was necessary but not considered or given, an appellate court should order that it be given. I do not agree. This is for the simple reason that invariably the damage, if at all, is done within a few days.”
But for the emphasis on the abuse of the power to grant ex parte injunctions, it is clear from the above quotation that a separate case can be made out for the Court of Appeal being allowed the exercise of a power to order an undertaking where the application is on notice to the parties, whilst insisting that it discharges an order of injunction obtained without an undertaking where it was obtained ex parte Furthermore in other cases, where the parties were duly heard, whatever damage may have been done by the order made, can be adequately compensated by the obtaining of an undertaking by the Court of Appeal which relates back to the date of the original order On the issue of damages which may result from the order of injunction, once a decision has been taken by the court of first instance after hearing the parties, such damage may occur, any way. whether there is an undertaking as to damages or not. What is important is that at the end of the day, when the case is determined, and the injunction is no longer effective, if the party restrained has succeeded in his action, he should be adequately compensated by damages. Where the court of first instance earlier failed to do this by ordering undertaking as to damages, it would be in the interest of such a party that he can secure such an undertaking from the Court of Appeal. If harm has already been done however, will a discharge of the order simpliciter on appeal take care of same, in monetary terms? I think not.
I have therefore come to the conclusion that whilst the learned trial Judge erred in failing to extract an undertaking as to damages when he made his order of injunction, this Court can obtain such an undertaking from the plaintiffs/respondents through their counsel, and allow the injunction ordered by the trial Judge to continue. It is therefore hereby ordered specifically that counsel for the plaintiffs/respondents gives to the Registrar of this Court a signed undertaking as offered by him in his notice of intention to vary the judgment filed by him.
The order of injunction made by Dr. O.O. Aguda, J. on 17/7/89 in this matter subsists. In effect the appeal partly succeeds and the application to vary the judgment also succeeds. There will be no order as to costs.
EJIWUNMI, J.C.A.: I had before now had, a preview of the judgment just delivered by my learned brother, OMO, J.C.A., and I agree that the appeal must be partly allowed.
Now, although two issues have been raised in this appeal by the parties, namely for the appellant:
“Whether the learned trial Judge was right in granting the order for interlocutory injunction without extracting an undertaking as to damages from the plaintiffs.”
and for the 1st – 9th defendants/respondents,
“Whether or not this Honourable Court will in the circumstances of this case order the plaintiffs to give the undertaking raised in the Respondents’ Notice within a specified period and order that the lower Court’s order of injunction should continue.”
It is upon the issue raised by the defendants/respondents that I wish to add a few words of my own. In essence the point raised by this issue is that this Court should refrain from following the decision of the Supreme Court in Kotoye & Ors. v. Central Bank of Nigeria (1989) 1 NWLR (Pt.98) p.419. The facts leading to the present appeal having been fully set out in the lead judgment will not be reiterated here. However, the contention of the learned Senior Counsel appearing for these parties, will be briefly stated. For the appellant, Chief G.O.K. Ajayi, S.A.N., took the position that the learned trial Judge was wrong in making the order of injunction without extracting an undertaking as to damages from the plaintiffs/respondents and further submitted that the learned trial Judge having failed so to do, the only course open to this Court on appeal is to discharge the order by the Court below. For that submission, learned Senior Counsel placed full reliance on the Supreme Court decision in N.A.B. Kotoye & Ors. v. Central Bank of Nigeria (1989) 1 N.W.L.R. (Part 98) page 419. In that case, Nnaemeka-Agu, J.S.C., dealing with a similar question as is under consideration in this case, decided that an undertaking as to damages is the price that an appellant has to pay for the order of interlocutory injunction, and that failure to give the undertaking leaves the order without a quid pro quo and as should be a . ground for discharging the order. And at pages 451 of the said judgment, His Lordship Nnaemeka-Agu, J.S.C., then made the all important statement which the learned Senior Counsel is calling in support of his contention. It reads:
“In my judgment, 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.”
It is to be noted that His Lordship, Nnamani, J.S.C., in his own judgment, also expressed views similar to that of Nnaemeka-Agu, J.S.C., and repeatedly rejected the contention made by Chief G.O.K. Ajayi, S.A.N. that the Supreme Court could extract the undertaking in order to sustain the order of injunction in that case, as he said at pages 456-7 of his judgment thus:
“Chief Ajayi has submitted that rather than set aside the order where the trial Court which granted that has not extracted any undertaking, the Court of Appeal ought to extract the undertaking. 1 just suspect that the damage may well have been suffered by the defendant before reaching the Court of Appeal, besides the Court of Appeal could be exhausted of intervening on any side of the dispute.”
On the other hand, learned Senior Counsel for the respondents has urged that this. Court can very properly extract an undertaking from the plaintiffs/respondents. His main contention in that regard is that this Court contrary to the views expressed in the decision of the Supreme Court in Kotoye & Ors. v. Central Bank of Nigeria (supra) order the respondent to give the necessary undertaking and uphold the order of injunction made by the lower Court.
In support of his contention that this Court ought not to follow the decision in Kotoye & Ors. v. Central Bank of Nigeria (supra), learned Senior Counsel advanced among others, the ground that the provisions of Section 16 of the Court of Appeal Act was not brought to the attention of the Supreme Court and was therefore not considered in that case. To that extent learned Senior Counsel is right, but his other submission that the Supreme Court is not vested with similar powers as that given to the Court of Appeal cannot be right in view of Section 22 of the Supreme Court. Act No. 12 of 1960, which gave the Supreme Court powers in identical terms with Section 16 of the Court of Appeal Act. He also directed our attention to the decision of this Court in Anike v. Emehelu & 3 Ors. (1990) 1 N. W.L.R. (Part 128) 608 (612) wherein Uwaifo, J. C.A., delivering the lead judgment, with the other justices concurring declined to follow the decision of the Supreme Court in the Kotoye’s case (supra).
The question that must therefore be considered and answered is when can a lower Court depart from a decision of a Superior Court as we are being urged to do in this case. The resolution of the question inevitably leads to the consideration of the doctrine of stare decisis, which requires that a lower Court is bound to follow the decisions of a higher Court except where that decision of the higher court can be shown to have been decided per incuriam and or that the facts of the case decided by the higher Court can be distinguished from that of the lower Court or that they are not on all fours with each other. This doctrine came up for consideration in the Supreme Court in Clement v. Iwuanyanwu (1989) 3 N.W.L.R. 39 (Part 107) 39, where OPUTA, J.S.C., at page 54, said:
“Is it every pronouncement, every word uttered by a superior Court that is binding? The doctrine here is generally referred to as the doctrine of stare decisis. State (sic) fully, it is Stare decisis et non quieta movare, meaning literally – To stand by what has been decided and not to disturb and unsettle things which are established. Stare decisis thus means to abide by former precedents where the same points came again in litigation. Stare decisis presupposes that the law has been solemnly declared and determined in the former case. It thus precludes the Judges of the subordinate Courts from changing what has been determined. In other words, they should keep the scale of justice even and steady not liable to waiver with every Judge’s opinion. Under the doctrine of Stare decisis, lower Courts are bound by the theory of precedent. Now a precedent is an adjudged case or decision of a higher Court considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Thus, prior cases which are close in facts or legal principles to the case under consideration are called precedents. The two cases (the one under consideration and the other to be used as precedent) must be close in facts – the facts must be similar for the doctrine to apply. This is so because as Chief Justice Stone observed in 1936:
“With the common law, unlike the civil law and its Roman law precursor, the formulation of general principles has not preceded decision. In its origin, it is the law of the practitioner rather than the philosopher. Decision has drawn its inspiration and its strength from the very facts which frame the issues for decision. Once made, the decision controls the future judgments of Courts in like or analogous cases.
In other words, it will be dangerous to consider any pronouncement of any Court even the Supreme Court in vacuo and without reference to the peculiar facts of the cases in which those pronouncements were made as those facts framed the issues that were decided.”
And continued at pages 54-55 thus:
“As principles are distilled from the facts of the case in which they were promulgated; as principles draw their inspiration and strength from the very facts which framed the issues for decision; it follows that when the facts are not similar, the principle need not apply or be applied to the new case. Principles therefore do not provide any patterns for definite situations. They (as their name implies – principium means the point of beginning) merely constitute the starting point of legal reasoning. The ratio decidendi of a case which creates the precedent establishes a principle which does not fore-close further inquiry especially when the facts are different.”
Now coming to the instant case on appeal and applying the principles of stare decisis and as enunciated above, it seems clear that there are observable differences between the two cases. In the first place, the present appeal, arose from a full hearing of an interlocutory application for an order of injunction and not an ex-parte application as in the Kotoye’s case (supra). Secondly, and perhaps for more importance, the decision of the Supreme Court appeared to have been reached to meet the spate of ex-parte application for order of injunction then prevailing. And thirdly on the provisions of Section 16 of the Court of Appeal Act was not considered, nor for that matter, the provisions of Section 22 of the Supreme Court Act, No.l2 of 1960, were considered in that case, it seems to me that in deciding the instant case, there is justification for not following the decision of the Supreme Court in Kotoye & Ors v. Central Bank of Nigeria (supra). It follows therefore that with the wide powers vested in the Court of Appeal under and by virtue of the provisions of Section 16 of the Court of Appeal Act, this Court can and ought to make such orders which could have been made by the lower Court where it deemed necessary so to do. In my view an order extracting an undertaking from the respondents in the instant case to perfect the order of injunction earlier made by the lower Court without ordering them to give the requisite undertaking, is one of such orders that this Court ought to make in the circumstances. I hasten to add that the provisions of Section 16 of the Court of Appeal Act have been held to be advantageous in saving parties from such time and expenses and thus serves to enhances the administration of justice in order.
For all the above reasons, I will order that Counsel for the plaintiffs/respondents gives to the Registrar of this Court a signed undertaking as offered by him in his notice of injunction to vary judgment. I also upheld the order of injunction made by the lower Court. In the result, this appeal succeeds for the fuller and better reasons given in the lead judgment. I also make no order as to Costs.
EDOZIE, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, Uche Omo, J.C.A. I agree entirely with him that this Court has wide powers under Section 16 of the Court of Appeal Act, 1976 to extract an undertaking as to damages from a party in whose favour an order for interlocutory injunction was granted where the lower court erred in failing to obtain such an undertaking. I abide by the consequential orders proposed in the judgment.
Appeal partly allowed.