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In The Supreme Court of Nigeria

On Friday , the 3rd day of February, 1989

SC. 118/1988

 

Before Their Lordships

 

 

 

Augustine Nnamani

......

Justice, Supreme Court

Adolphus Godwin Karibi-Whyte

......

Justice, Supreme Court

Chukwudifu Akunne Oputa

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

Ebenizer Babasanya Craig

......

Justice, Supreme Court

  

Between

 

Nathaniel Adedamola Kotoye

.......

Applicant

 

And

Central Bank of Nigeria & Ors

.......

Respondent

   

 

Judgement of the Court

Delivered by

Nnaemeka-Agu, J.S.C.:

 

 

This appeal involves a question which has raised some serious furor in recent times, to wit: The question of ex parte orders of injunction. It touches an area of law which, in spite of numerous appellate decisions, appears to have been quite often misunderstood and misapplied by some courts of trial. Recent instances show that there is an urgent need to state the law.

 

The facts leading to the appeal are important for a full appreciation of the legal problems involved. Certain allegations of mismanagement by the third Defendant, Societe Generale Bank (Nigeria) Limited, came to the notice of the Central Bank of Nigeria. After investigating the allegations and taking instructions from the Federal Ministry of Finance, the Central Bank issued to the Chairman of the Bank, Mr. N. A. B. Kotoye, a written directive which because of its bearing in this appeal, I hereby set out in full. It runs thus:

 

Central Bank of Nigeria

                                                                                                                                                                                        P.M.B. 12194,

Tinubu Square, Lagos.

 

The Deputy Governor                                                                                                                                                         Tel. 661283/660100/104

 

Our Ref: DG/COMBANKS/Vol.I/359                                                                                                 14th April, 1987

 

Mr. N. A. B. Kotoye,

Chairman,

Societe Generale Bank (Nigeria) Ltd.,

13 Martins Street,

Sarah House,

Lagos.

 

Dear Mr. Kotoye,

 

SOCIETE GENERALE BANK NIGERIA LIMITED PETITION BY DR. SOLA SARAKIONALLEGA TIONOFFRA UDULENTTRANSFER OF N2,240,000 SHARES BELONGING TO MRS. SARA KI, MISMANAGEMENT AND

MA NIP  ULA TION AGAINST NIGERIAN SHAREHOLDERS BY FRENCH FOREIGN PARTNERS IN

COLLUSION WITH SOME NIGERIAN SHAREHOLDERS.

 

Government takes exception of the very serious disagreement among the board members of your bank on fundamental issues resulting in the resignation of majority of the members culminating in the total collapse of the board and particularly allegations of the following:-

 

(a)     Fraudulent Transfer to Mr. N. A. B. Kotoye of N2,240,000 shares said to belong to Mrs. Saraki,

 

(b)     Persistent violation of government regulations and advice.

 

(c)     Representation on the board/method of appointing directors.

 

(d)     Accumulation of bad debts and non-payment of cash dividend,

 

(e)     Lapses in the Nigerianisation policy;

 

(f)     Borrowing by board members/share holders vis-a-vis the bank lending policy.

 

In view of the urgent need to resolve the above issues which are capable of wrecking the very existence of the bank, the effect of which could have very serious implications on the larger interest of the banking system, the supervising Federal Ministry of Finance having considered our report has directed us, in consideration of the powers conferred on the Honourable Minister of Finance, under Section 22 and particularly, Sub-section (a)(ii) of this Section of the banking Act 1969, to transmit to you, the following directives of the government for immediate implementation without further delay:

 

1.   The shareholdin guile gal transfer of Mrs. Saraki's Shares:

        

        That Dr. Saraki and Mr. Kotoye should revert to their status quo as at the date of the meeting both of them had with the Federal Minister of Finance in 1982. Accordingly the 1982 position when adjusted to December, 1986, would be as in Appendix I of this letter thus:-

Dr. Sola Saraki -                                                                                                                                                                 N6,876,840 Shares

Mr. N. A. B. Kotoye-                                                                                                                                                         N2,937,540 Shares

 

All other fresh shares acquired after 1982 should be divested to other Nigerians within two months of the receipt of this letter.

 

2.    Representation and Procedure for appointing Directors on the Board of the Bank:

 

That the government accepted our observations that the issue of appointing new directors revolves around control which cannot be divorced from the issue of ownership and that once the ownership dispute is resolved, it would provide an acceptable solution to how much control both parties could have in running the affairs of the bank.

 

Similarly, the government is in agreement with the proposal contained in paragraph four of the Nigerian Enterprises Promotion Board's letter reference CT.3422/Vol.1/233 of 27th October, 1986 addressed to the Managing Director (photo-stat copy attached).

 

In consequence, you are strictly directed to incorporate into the Memorandum and Articles of Association of the bank all agreed understanding between the two partners (Nigerian/French) which formed the basis of your application for banking licence and upon which the banking licence was issued. You are also required to incorporate in the Memorandum and Articles of Association appropriately the Management Agreement on page nine of the feasibility report which is the basis agreed upon between the partners of the method of nomination of Directors of the Board of the bank which now must be followed in the reconstitution of the new Board and should be ratified soon after the new Board has been properly constituted.

 

Furthermore, the government accepted our recommendation that some of the Articles of Association of the bank would need to be re-examined for suitable amendment by the new Board. For example, article 104 dealing with the quorum of the Board may create problem of interpretation, as it can be interpreted to mean two representatives of the French Foreign Partners on the Board to the exclusion of Nigerians or vice versa. Similarly, articles 64(i) regarding the quorum of the general meeting can also give room for excluding either one of the partners yet a valid quorum could be formed. In order to avoid future conflicts, government has directed that such Articles of Association be amended appropriately within two months of the inception of the new Board and the Ministry notified accordingly through the Central Bank of Nigeria.

 

Pursuant to the foregoing a fresh Board should therefore, be constituted now and be fully functional within four weeks of receipt of this letter and inform us immediately for onward transmission to the Ministry. Accordingly, the Nigerian and foreign partner should each make its nomination to the Board at once.

 

Please note that under no circumstance should any of those on the former board which has been fra gmented be re-appointed to serve on the new Board. This is to say that those who have served or are presently serving on the Board should not be re-appointed to serve on the new Board to be constituted.

 

Accordingly, the Government directs that the Nigerian Shareholders should meet as a group urgently without delay to nominate the Nigerian representatives to serve on the Board. The list of the nominees should reach us not later than 10 days from the date of this letter, failing which the Government will be compelled to take appropriate action in accordance with the provisions of the Banking Decree 1969. Similarly, the French Partners should forward to us the list of their nominees to reach us within the same time frame.

 

These directives of government are aimed at ensuring that the normal operations of the bank are un-interrupted.

 

3.    Accumulation of Bad debts and Nonpayment of Cash Dividends.

 

        Our Special Investigation revealed that facilities obtained from the bank by directors/shareholders were either poorly serviced or never serviced as shown in Appendix II of this letter Most of the facilities were either not secured at all or not adequately secured contrary to the provisions of Section 13(i)(c) of the Banking Act, 1969. These irregularities and other weaknesses in the Credit Administration Machinery of the bank constitute an indictment on the competence and integrity of the Board and Management of the bank. Furthermore, the special investigation revealed a phenomenal increase in the classified bad and doubtful debts from about N24.2 million to about N149.2 million between our 1982 and 1986 examination reports of which 10% were facilities extended to Dr. Saraki and companies introduced by him. The case with which most of the facilities now classified as bad and doubtful debts were obtained did not reflect the level of expert in Credit Administration, one would expect from the French Technical Partner which is largely responsible for the day to day management of the bank.

 

        As regards the issue of non-payment of cash dividends, the expectation of Dr. Saraki is unrealistic in view of the sharp rise in the accumulated bad debts. The payment of cash dividend by a bank whose capital had been inadequate could not be regarded as prudent, as earnings from which cash dividends could be paid should be seen as a "return on capital" rather than as "return of capital."

 

        The Federal Ministry of Finance viewed the foregoing observations made by the Central Bank with grave concern and in view of the ineptitude in the conduct and administration of the Board and Management team, the government has directed that they be reciprocally dealt with. Accordingly, by the powers conferred on the Honourable Minister of Finance under Section 22 and Sub-section (a)(ii) of this Section of the Banking Decree 1969, the government directs that the management team for the bank be replaced as a matter of urgency within 3~ months of the inception of the new Board so as to enhance the smooth running of the bank under the new Board.

 

        In this regard, the new board should ensure that monthly returns of the gradual phasing out of the present management team is made to us for onward transmission to the Federal Ministry of Finance.

 

        As regards the overdue loans and advances, the government accepts the recommendation of the Central Bank and directs that the new Board when appointed, should cause all deliquent borrowers to submit realistic and acceptable repayment proposals to it while the debt collection machinery should be overhauled to ensure effective collection of past due debts.

 

4.    Persistent Violation of Government Regulations and Advice.

 

The Special Investigation Report revealed series of contraventions of the provisions of the Banking Act 1969 and violations of government regulations and advice particularly with regard to capital (1) holding structure by Nigerians, (2) the management agreement which up to the time of our investigation had not been registered with the National Office of Industrial Property (NOIP) as required by Section 5(i) of the National Office of Industrial Property Act 1979 and (3) the holding of the Board Meeting of 28th October, 1986. The nonobservance or deliberate violation of laid down regulations by the Monetary Authorities and other regulatory agencies such as NEPB and SEC will not serve the best interest of the bank.

Accordingly, the government warns the Board and Management that failure to comply with given financial regulations and government advice will in future fetch your bank serious consequences including the suspension of your bank's dealership licence.

As regards the foreign exchange fraud involving ~397, 450 perpetrated in November, 1984, the government accepts our recommendation that the bank be allowed to implement its decision to pay this amount to its customer - (Mr. K. B. Omatseye) under the new dispensation of SFEM and accordingly directed that the settlement be effected within three weeks of receipt of this letter.

 

5.    Nigerianisation:

 

        The Special Investigation report revealed that while the management of the bank's branches with very limited authority was in the hands of Nigerians, Head Office Operations in the areas of General Management, Inspection, Treasury, Computer Operations, Organisation and Method (O&M), Commercial lending and the post of Chief Executive were in the hands of the expatriates. The government agreed with our observation that unless necessary adjustment is effected in the allocation of responsibility between the expatriate and Nigerian officers, the control of the bank would hardly be diminished by the projected expatriate staff of six (6) in 1990.

 

        Accordingly, the government directs that succession plan be reviewed immediately with a view to enabling Nigerians to be actively involved in the affairs of the bank. The new Board, when appointed, is expected to note this directive of government for strict adherence and should submit situation report every six months to the Central Bank on the progress made to Nigerianise the identified posts for onward transmission to the Federal Ministry of Finance.

 

        Please, note the urgent need to implement the government directives without resorting to acrimony and/or confrontation with the authorities. It is in the best interest of your bank and the entire banking system that the directive, and recommendations contained herein are complied with strictly.

 

Yours sincerely,

A. 0. G. OTITI,

DEPUTY GOVERNOR.

 

        Att.

 

From appellant's own affidavit this letter was received by him on the 18th of April, 1987, nine clear days before the date scheduled for the General Meeting of the 3rd Respondent bank, the notice of which had been issued on the 26th of March, 1987.

 

On the 22nd of April, 1987, the appellant issued a writ claiming against the 1st, 2nd and 3rd Respondents the following reliefs that is to say:

 

(i)    A Declaration that the directive given by the 1st Defendant in its letter DG/COMBANKSIVOl.1/359 of the 14th of April, 1987 to the effect that the shareholding of the plaintiff in the 3rd Defendant should revert to the reduced figure of N2,937,450 shares held by him in 1982 is ultra vires the 1st Defendant and is null and void.

 

(ii)    A Declaration that the directive given by the 1st Defendant in the said letter that all shares acquired by the plaintiff in the 3rd Defendant since 1982 be divested to other Nigerians is ultra vires the 1st Defendant.

 

(iii)    A Declaration that the plaintiff is owner of 8,386,100 shares of N1.00 each in the Defendant Bank.

 

(iv)   A Declaration that the directive of the 1st Defendant that a fresh Board of the 3rd Defendant be re-constituted so that former members of the board be not re-appointed thereto is:

 

(a)    ultra vires the 1st Defendant and void; and

 

(b)    is an unwarranted interference with the affairs of the company as constituted.

 

(c)    an unwarranted interference with the plaintiff's rights to be reelected a Director under the Articles of Association of the Bank.

 

(v)    A Declaration that the plaintiff is entitled to be re-appointed a Director of the 3rd Defendant Bank at its scheduled Annual General Meeting fixed for the 25th of April, 1987 in accordance with the provisions of Articles 96, 97 and 98 of the Articles of Association of the 3rd Defendant Bank.

 

(vi)   A Declaration that the directive given by the Federal Ministry of Finance by letter dated the 6th day of April, 1987 to the effect that the Annual General Meeting of the Bank fixed for the 25th April, 1987 be postponed until a new Board of Directors is constituted is ultra vires null and void.

 

(vii) A Declaration that the plaintiff is entitled to remain in office as a Director of the 3rd Defendant Bank until he is removed from office in accordance with the provisions of the Companies Act or the Articles of Association of the 3rd Defendant Bank.

 

(viii) An Injunction restraining the 1st and 2nd Defendants from exercising any of their respective powers whether under the Banking Act or under the Companies Act in such a way as to give effect to or provide sanctions against the plaintiff for failure to give effect to any of the aforesaid directives of the 1st Defendant.

 

(ix)    An Injunction restraining the 1st and 2nd Defendants from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank for the purposes of electing new Directors or effecting any of the Statutory purposes for which Annual General Meetings are required to be held by the Companies Act 1968.

Dated this 22nd Day of April, 1987.

 

The 4th to 8th Respondents were joined after the order, the subject of this appeal.

 

On the same day, the appellant filed a motion exparte under Order 20 of the Federal High Court Rules, 1976, for an order:

 

(i)    restraining the 1st and 2nd Defendants their servants and/or agents from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank until the final determination of this suit;

 

(ii)    for an order of injunction that until the determination of this suit the Defendants be restrained from appointing or recognising the appointment of any person or persons as Directors of the 3rd Defendant company other than such of them as are or may be duly appointed in accordance with the provisions of the Articles of Association of the 3rd Defendant Bank.

 

The application was supported by an affidavit and an affidavit of urgency. The affidavit of urgency runs thus:

 

AFFIDAVIT OF URGENCY

 

I, Nathaniel Adelamola Babalola Kotoye, Nigerian, Director of 13 Martins Street, Lagos make oath and say as follows:-

 

1.    That I am the plaintiff herein.

 

2.    That I am the Chairman of the Board of Directors of the 3rd Defendant Bank.

 

3.    That Notice summoning the Annual General Meeting of the 3rd Defendant Bank for the 25th of April, 1987 was issued on the 26th of March, 1987.

 

4.    That on the morning of Thursday the 16th of April, 1987 I returned home a little after 12 noon and was shown a letter addresed to me by the 1st Defendant herein directing that the Nigerian Directors of the 3rd Defendant Bank to meet urgently and to select its representatives on the Board of the Bank and forward a list thereof to the 1st Defendant within 10 days of the letter. The said letter is dated the 14th ofApril, 1987 and a copy of the same is already exhibited to the Affidavit in support of the Motion filed herein.

 

5.    That the 1st Defendant has threatened in its aforesaid letter that if the list of new Directors is not supplied to it within 10 days of the said letter it would take appropriate measures against the 3rd Defendant under the Banking Act.

 

6.    That I have therefore conmmenced these proceedings seeking a number of declarations and injunctive relief.

 

7.    That I have also filed an exparte Motion for interim injunction and it is of crucial importance that this application for interim injunction be heard immediately in view of the fact that the Annual General Meetin$ of the bank is due to be held at the end of this week and the time limit within which the 1st Defendant has demanded a list of Directors will expire on the 24th April, 1987.

 

8.    That I therefore pray that this application be heard as a matter of urgency.

 

No motion on notice was filed to the same effect.

 

The ex parte motion was heard the same day by Anyaegbunam, C.J. He then proceeded to make the following orders:

 

(i)    That 1st and 2nd Defendants/Respondents, their servants and agents should not in any way obstruct or frustrate the holding of the Annual General Meeting of 3rd Defendant/Respondent Bank whenever it is fixed.

 

(ii)    That when the said Annual General Meeting is held the ordinary affairs of the 3rd Defendant/Respondent Bank should be discussed.

 

(iii)   That no new Directors will be appointed, the old Directors should continue to function until the determination of this Application or the Court otherwise orders.

 

(iv)   I hereby also order that 1st, 2nd and 3rd Defendants/Respondents be served with all the motion papers. This will enable them file whatever papers they wish to. Adjourned Application to Monday, 27/4/87 at 1 p.m.

 

By a Notice of Appeal dated the 5th day of May, 1987, the 1st Respondent herein appealed. After hearing the appeal, the Court of Appeal, Lagos Division; allowed the appeal. In the lead judgment of Awogu, J.C.A., to which Akpata and Kalgo, JJ.C.A., concurred, he held inter alia, as follows:

 

(i)    that what the learned C.J. made was in the nature of an immediate absolute order, not an interim order; and not one appropriate under the rule it was purported to have been brought;

 

(ii)    that the order made by the learned C.J. amounted to a final order, without hearing the Respondents;

 

(iii)    that the trial court granted to the applicant more than what he asked for;

 

(iv)    that although an affidavit of urgency was filed no case of urgency was made out to warrant an exparte hearing; and

 

(v)    that although he was allowing the appeal on other grounds, he would additionally have done so for failure of the applicant to give an undertaking as to damages.

 

The applicant, hereinafter called the appellant, has appealed to this court. All the Defendants including those who were joined after the order was made, shall be called the Respondents.

 

So much confusion and conflict appear to have surrounded the use of the expressions "exparte", "interim", and "interlocutory" in the briefs of counsel that I deem it necessary to begin by examining these terms. Indeed, even in decided cases this lack of agreement as to the precise meanings of these words is pretty obvious. At times they are used as if "interlocutory" and "interim" were interchangeable. In Kufeji V. Kogbe (1961)1 All N.L.R. 113, at p.114, an application for an injunction which was fully argued and deliberated upon and in every way had all the attributes of an interlocutory injunction was referred to as interim injunction. In fact "interim" and "interlocutory" were freely used as if they were interchangeable. See also L U. Iroegbu V. Mark A. Ugbo (197~71) 1 E.C.S.L.R. 162.

 

I think it is correct to say that "exparte" in relation to injunctions is properly used in contradistinction to "on notice" - and both experessions, which are mutually exclusive, more strictly rather refer to the manner in which the application is brought and the order procured. An applicant for a nonpermanent injunction may bring the application exparte, that is without notice to the other side or with notice to the other side, as is appropriate. By their very nature injunctions granted on ex parte applications can only be properly interim in nature. They are made, without notice to the other side, to keep matters in statu quo to a named date, usually not more than a few days, or until the Respondent can be put on notice. The rationale of an order made on such an application is that delay to be caused by proceeding in the ordinary way by putting the other side on notice would or might cause such an irretrievable or serious mischief. Such injunctions are for cases of real urgency. The emphasis is on "real."

 

What is contemplated by the law is urgency between the happening of the event which is sought to be restrained by injunction and the date the application could be heard if taken after due notice to the other side. So, if an incident which forms the basis of an application occurred long enough for the applicant to have given due notice of the application to the other side if he had acted promptly but he delays so much in bringing the application until there is not enough time to put the other side on notice, then there is a case of self-induced urgency, and not one of real urgency within the meaning of the law. This self-induced urgency will not warrant the granting of the application ex parte. Megarry, J., as he then was, put the principle rather succinctly in the case of Bates V. Lord Hailsham of Marylebone (1972) 3 ALL E.R. 1019, at p.1025, where he stated:

 

An injunction is a serious matter, and must be treated seriously. If there is a plaintiff who has known about a proposal for ten weeks in general terms and for nearly four weeks in detail, and he wants an injunction to prevent effect being given to it at a meeting of which he has known for well over a fortnight, he must have a most cogent explanation if he is to obtain his injunction on an ex parte application made two and a half hours before the meeting is due to begin. It is no answer to say, as counsel for the plaintiff sought to say, that the grant of an injunction will do the Defendant no harm, for apart from other considerations, an inference from an insufficiently explained tardiness in the application is that the urgency and the gravity of the plaintiff's case are less than compelling. Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion.

 

On the other hand, even though 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 interpartes, 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." Applications for interlocutory injunctions are properly made on notice to the other side to keep matters in statu quo until the determination of the suit. Evidence is by affidavit. On the hearing of the application for an interlocutory injunction, the court, after avoiding all controversial issues of fact, has to decide a number of important issues, including:

 

(i)    the strength of the applicant's case. A long time ago, the plaintiff was required to show a strong prima facie case that he was entitled to relief (see Harman Pictures N. V v. Osborne (1967)1 W.L.R. 723). However since the decision of the House of Lords in American Cyanamid Co. V. Ethicon Ltd. (1975) A.C. 396, at pp. 407~09 it has been held that what the applicant needs to show is only a real possibility, not a probability, of success at the trial - that there is a serious question to be tried. This is now an accepted principle in this country. See Obeya Memorial Specialist Hospital Ayi - Onyema Family Ltd. v. Attorney-General of the Federation & Anor. (1987) 3 N.W.L.R. (Pt.60) 325, at p.340. It does appear, too, from the decision in Cory V. Reindeer S. S. Co. (1915)31 T.L.R. 530 that once the plaintiff satisfies this requisite standard in this respect, the order will still be made even though the Defendant has a technical defence.

 

(ii)    Once the applicant gets over the initial hurdle of showing that there is a serious question to be tried, he must succeed in showing that the balance of convenience is on his side, that is that more justice will result in granting the application than in refusing it. The onus of proving that the balance of convenience is on his side is that of the applicant: See Missini & Ors. v. Balo gun (1968)1 All N.L.R. 318.

 

(iii)   The applicant, to succeed, even if he has shown that he has a good case and that the balance of convenience is on his side must furthermore show that damages cannot be an adequate compensation for his damage, if he succeeds at the end of the day.

 

(iv)   Conduct of the parties - has also, quite often, been a relevant factor in the consideration of whether or not to grant an application for interlocutory injunction, as with permanent injunction. For an example, a plaintiff who is also in substantial breach of contract cannot himself get an order of interlocutory injunction against a Defendant alleged to be in breach. See on this Jackson v. Hamlyin (1953)1 W.L.R. 713. Also delay in bringing the application will defeat it because such a delay postulates that there is no urgency in the matter and destroys the very basis for a prompt relief by way of interlocutory injunction.

 

It can be seen from the nature of the above issues that they are such that they cannot, and ought not, be decided without hearing both sides to the contest.

 

Interim injunctions, on the other hand, while often showing the trammels of orders of injunction made exparte are not necessarily coterminous with them. Their main feature which distinguishes them from interlocutory injunctions is that they 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 an irretrievable mischief or damage may be occasioned before the completion of hearing. Also it can be made to avoid such an irretrievable mischief or damage when due to the pressure of business of the court or through no fault of the applicant it is impossible to hear and determine the application on notice for interlocutory injunction. See Beese V. Woodhouse (1970)1 W.L.R. 586, at p.590. It must, however, be emphasized that what the court does in such a case is not to hear the application for interlocutory injunction ex parte, behind the back of the respondent, but to make an order which has the effect of preserving the status quo until the application for interlocutory injunction can be heard and determined. This is the way I see the dicta of Griffith, C.J. in Thomas Edison Ltd. V. Bullock (1912)15 C.L.R. 679, at p.681 which Chief Williams has cited in argument. The learned C.J. said:

 

There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject-matter of the suit were preserved, and, if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the court, and ask for its interposition even in the absence of his opponent, on the ground that delay would involve greater injustice than instant action.

 

I entirely agree with him. But there is nothing in the above dicta or in the case itself to warrant the hearing of an interlocutory application for injunction ex parte. Indeed this court sounded much the same caveat, per Ibekwe, J.S.C. (as he then was) when he stated in Woluchem V. Wokoma (1974)1 All N.L.R. (Part 1) 605, at p.607.

 

An interlocutory injunction has a binding effect until it is discharged. Failure to comply with it could lead to disastrous consequences, such as having to commit the offending party to prison for contempt. It is a well settled rule of practice in civil proceedings that the party to be affected by the order sought should normally be put on notice.

 

See on the above: Daniel's Chancery Practice (7th Edn.) pp. 136~1364, Snell's Principles of Equity (28th Edn.) pp.639-644 and 646; vol.24 Hals. Laws of Eng. para. 1052. In my opinion it is in these senses that the expressions "ex parte", "interim" and "interlocutory" should be used. It is from the above principles that I shall now consider the arguments which have been urged on us in this appeal.

Chief G. 0. K. Ajayi S.A.N., while conceding it that an application for an injunction "until the final determination of the suit" is one for an interlocutory injunction, submitted that by the joint effect of section 13 of the Federal High Court Act, 1973, Order 33 (particularly rules 5, 8, and 10) of the Federal High Court Rules, 1976, and Order 20 (particularly rules 4 and 5) of the same, a party can apply for an interlocutory injunction cx parte. He went further to submit that a court can make such an order cx parte and that the rules provide that any person affected by an order made cx parte is entitled to apply for its review. He relied on the case of WEA Records Ltd. V. Visions Channel 4 Ltd. (1983)1 W.L.R. 721.

 

Professor Kasunmu, S.A.N. while not disputing it that the rules provide that such an application can be made cx parte, submitted that once it is one "until the final determination of the suit," it is one for interlocutory injunction which ought not be heard or granted ex parte. He urged the court to approve the decision of the Court of Appeal to that effect in a number of decisions, including F.C.A./L15/81: University of Lagos & Anor. V. Olaniyan of 8 February, 1981. Ojukwu V. Governor of Lagos & Anor. (1986) 3 N.W.L.R. (part 26) 39, at p.44.

 

On his part, M. 0. Adio, the Director of Civil Litigation Federal Ministry of Justice, for the 2nd Respondent, made submissions. He submitted that what the appellant applied for was an order of interlocutory injunction and that he was wrong in law, to have applied for it exparte. What he should have applied for was an interim order. He, however submitted that the learned Chief Judge was right to have entertained it and for "cutting the application to size in the way he made subsequent five orders

 

Chief Olowofoyeku for the 3rd Respondent filed a brief in which he attacked the decision of the Court of Appeal and urged that the appeal should be allowed. Chief Williams objected to the whole brief on the ground that, as counsel for a Respondent, not having cross-appealed or filed a Respondent's notice, he was not competent to argue as he did. We came to the conclusion that the objection was well taken. This court has said a number of times that what is open to a Respondent in the position of the 3rd Respondent is either to cross-appeal or file a Respondent's notice as the case may be: See Oguma Associated Companies (Nig.) Ltd. v. 1. B. W.A. Ltd. (1988)1 N.W.L.R. (Pt.73) 658, at p.681; Eliochin (Nig.) Ltd. v. Mbadiwe (1986)1 N.W.L.R. (p art 14) 47. So, the brief was struck out. We did not hear counsel in oral argument.

 

Chief F. R. A. Williams, S.A.N., submitted that the Court of Appeal was right to have held that both prayers were for interlocutory injunction in so far as the application was "until the final determination of the suit." He submitted that the learned Chief Judge ought not to have entertained the application at aIl. In this countrv he submitted we must read whatever section 13 of the Federal High Court Act and Orders 2() and 33 say with the provision of section 33(1) of the Constitution in view. He pointed out that 0.33 r. to gives three options to a court before whom such an application comes: but those options must be exercised with the constitutional provision in view.

 

I wish to begin my consideration of this aspect of this appeal by pointing out that there is reallv no dispute that an application for injunction  "untiI the final determination of the suit" is an application for an interlocutorv and not an interim order. The real issue is as to whether such an application can be heard and granted ex parte. I have examined above the nature of a decision in an interlocutory injunction and shown that it entails a deliberation on a number  of well-settled issues upon which the right of  an applicant to the depends. The question, therefore, is, in view of the provisions of section 33 of the Constitution of 1979,  can and should a court proceed to deliberate on those issues and come to conclusions on them on an ex parte  hearing,  that is without hearing all the parties to be affected by the order?

 

To answer this question properly. it is necessary to consider the provision under section 33 of the Constitution of 1979, particularly sub-section  (1). This provides as follows:

 

(1)     In the determination of his civil right and obligation   including  any question or determination by or against any government or authority, a person shall be entitled to a fair hearing  within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. 

 

Clearlv whenever the need arises for the determination of the civil rights and obligations of every Nigerian. this provision guarantees to such a person a fair hearing within a reasonable time. Fair hearing has been interpreted by the courts  to be synonymous with fair trial and as implying that every reasonable and fair minded observer who watches  the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all the parties concerned . See on this Mohammed v. Kano N.A  (1968 ) 1 All N.L.R. 424, at p. 426. There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case. These include:

 

(i)    that the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justice (1964) 2 Q.B 573, at p. 578.

 

(ii)    that the court or tribunal shall give equal treatment. opportunity, and consideration to all concerned. See on this: - Adigun v. Attorney-General, Oyo State & Ors. (1987) 1 N.W.L.R. (Pt.53) 678.

 

(iii)   that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing and

 

(iv)   that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done: R. v. Sussex Justices, ex parte McCarthy (1924)1 K.B. 256, at p~ 259; Deduwa & Ors. V. Okorodudu (1976)10 S.C. 329.

 

Thus, fair hearing in the context of section 33(1) of the Constitution of 1979 encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of justice - audi alteram partem and nemo judex in causa sua -as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. In the context of interlocutory injunctions in which, as I have shown above, a number of decisions on set principles most of which are highly contentious, need be made, can it be doubted that to decide them after hearing only one side clearly offends each and every one of the above criteria and attributes of fair hearing? I do not want to concern myself with the unnecessary exercise of examining whether or not such applications can, on the letters of the rules, be brought ex parte. But I am of the clear view that, once it is conceded that what is involved is an order for interlocutory injunction and not a mere interim order to keep matters in status quo pending the hearing of the application for interlocutory injunction on notice to both sides or until a near named date, then the procedure runs counter to the letters and spirit of section 33 of the Constitution of 1979 and ought not be entertained. For while it can be said that an interim order of injunction merely leaves matters in statu quo and that the court does not have to decide any contentious issue before so doing, I do not see how the same could be said when the order by its very nature depends on the resolution of such issues as whether the applicant has established his possibility of success, that the balance of convenience is on his side as against the Respondent, that the award of damages cannot sufficiently compensate his damage, and that his conduct all through entitles him to the discretion of the court. It must always be borne in mind when we consider English decisions on the point that in Nigeria, the right of fair hearing is a right entrenched in the Constitution whereas in England it is a creation of the common law which is regulated by the Rules. The effect of entrenching a provision in the Constitution is that it over-rides all contrary provisions in any law of the land, be they substantive or adjectival. As it is so, Chief Williams and Professor Kasunmu were right when they submitted that Orders 20 and 33 of the Federal High Court rules must be interpreted and applied in such a way as not to run counter to the letters and spirit of section 33 of the Constitution. In so far as this was the attitude of the Court of Appeal in their decisions which have been referred to in argument and which they applied in this case, that Court has been right in the matter. I therefore wish to emphasize that although Order XXXIII rule 10 of the Federal High Court Rules, which is by the way general to all interlocutory applications and not limited to applications for injunctions, provides for three alternative orders by the Court, namely:

 

 

(i)    refusing to make the order;

 

(ii)    granting the order to show cause why the order should not be made; or

 

(iii)  allowing the order to be made on notice,

 

there is nothing in the rule to empower the court to grant the application ex parte. An order to show cause implies a postponement of the hearing and bringing the opposite party to court for him to be heard before the order is made. Although rule 7 says that a motion may be brought ex parte or on notice, motions for interlocutory injunctions ought not to be expressed to be ex parte.

Before I consider the nature of the order made by the learned Chief Judge I would like to express an opinion on the submission of Mr. Adio that the 1st Respondent, as the appellant in the Court of Appeal, should have applied to the learned Chief Judge to set aside the order rather than appealing against it. When it is noted that Mr. Adio is counsel to the 2nd Respondent in this appeal, as well as in the court below, one wonders what procedure he has adopted. As a Respondent's counsel, unless he cross-appealed or filed a Respondent's notice, his traditional role ought to be to defend the judgment appealed against. If he wanted to depart from this role, he was obliged to cross-appeal or file a Respondent's notice. Maybe, the other counsel for the Respondent did not object to that part of his brief because, in the end, he came to the conclusion that the appeal should be dismissed. Be that as it may, I must state it clearly that without taking these necessary steps, a Respondent's counsel has not got the power to freely criticise the judgment of the court he is supposed to defend.

 

However, considering the point for what it is worth, I would allow myself to be guided by the Constitution. Now under sections 219, 220, and 221 of the Constitution of 1979, a party is empowered to appeal, as of right or by leave to the Court of Appeal, as the case may be, against decisions of a High Court, Federal or State. The word "decision" is defined in Section 277 of the same Constitution as meaning:

 

in relation to a court any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation

 

of the court. It is, therefore, wide enough to include the type of order appealed against in this case. It follows, therefore, that by the very letter of the Constitution which is not only the supreme law of the land but also, in appropriate metaphor, the touchstone and yard-stick of measurement of the validity of all other laws, it is intended that such decisions should be appealable. As it is so, all rules of court which run counter to or are inconsistent with this enabling provision of the Constitution are, ipso facto, null and void to the extent of the inconsistency. Much as there could be occasions when a person affected may wish to invoke the provisions of Order XXXIII rule II of the Federal High Court (Civil Procedure) Rules and apply to discharge or vary an ex parte interim order obtained against him, such an application should never arise in the case of an order of interlocutory injunction, for the simple reason that it ought never be made ex parte, in this country at least. This is because, as I have shown, an order of interlocutory injunction is predicated on the determination of a number of contentious issues which would require that the court hears both sides before deciding. Moreover, in my judgment to give a person the right to apply to set aside an order after it has been made can never be an equal right with hearing him before the order is made. For, in the former case, the onus is on him to satisfy the court that the order, already made, ought to be discharged or varied. And he has the onerous burden of displacing the presumption that a judgment or order of court is correct. In the latter case, he has at least as much an opportunity as his adversary of showing why the order should not be made. He can also bring before the court materials which could support his stand. If, after the court has considered all the materials brought, and argument advanced, by both sides the odds are evenly weighted or in favour of the Respondent, the order will not be made: for the onus at that stage is on the applicant to satisfy the court. These are the reasons why it is recognized by high authority that, ex post facto hearing is inferior to hearing before decision. See De. Smith: Judicial Review of Administrative Action (4th Edn.) p.193. As this is so, the right to apply to vary or discharge an order of interlocutory injunction made ex parte lacks one of the attributes of fair hearing which I have enunciated above, to wit: equality of opportunity to both sides to the contest. It, therefore, falls short of the expectations of section 33(1) of the 1979 Constitution. This is why in this country an application to set aside an order made ex parte should arise only in the case of interim orders which should not cause serious detriment to the person affected and where there is a case of real urgency and it is impracticable to afford an antecedent hearing.

 

A good deal of argument was advanced by counsel on different sides as to the nature of the procedure adopted by the learned Chief Judge in determining the application before him. Chief Ajayi, while conceding as I have stated, that there was only one application ex parte and that by the nature of the application, it was an interlocutory order, submitted that all that the learned Chief Judge did was to make an interim order on it on the 22nd of April, 1987 and then adjourn it to the 27th for hearing when the Respondents were to be heard. Mr. Adio supported him somehow by stating that the learned Chief Judge rightly made as much order as was necessary on the 22nd of April and adjourned the hearing. Professor Kasunmu and Chief Williams, on the other hand, pointed out that there was only one motion, and that was the motion ex parte; that the first two orders made were in the nature of absolute orders which granted to the appellant all that he prayed for in the application; and that the other orders were ancillary. Chief Williams also submitted that even if it is assumed that the 4th order which adjourned the application (after it had been decided) to the 27th of April converted it into an interim order - a point he would not concede - the order for hearing on the 27th April when the meeting was fixed on the 25th was a spent order, which offends against section 33 of the Constitution.

 

My first regret in this aspect of the arguments is that procedure in, and order of, court on a matter with set procedure should be allowed to drift into quibbling uncertainty by reason of a mere whimsical deviation from settled practice. For it is settled that a person who seeks an interim order ex parte while also applying for an interlocutory injunction files two motions, simultaneously, one ex parte asking for the interim order, and the other on notice applying for an interlocutory injunction. The court before whom the applications come takes the exparte motion and, if satisfied that it has merit exfacie, grants it making the order to the date when the motion on notice shall be heard. Parties and their counsel ought not to be encouraged to file and argue a sole application ex parte when asking for orders which can only be properly made on notice.

 

In the instant case, there is force in the arguments of Chief Williams and Professor Kasunmu that the first two orders made were in the nature of absolute orders, granting to the appellant his main prayers in the ex parte application set out above without the other side being given a hearing. In point of fact, he also decided some of the issues raised in the letter of directive of the Central Bank being contested in the writ and the statement of claim. Having granted them, there was nothing left to be heard on the 27th of April. It is immaterial that an order was made about service of papers on them. The Respondents, without being heard in opposition, had been restrained from preventing the holding of the general meeting of the 3rd Respondents scheduled to take place on the 25th of April. I do not see how it could ever be doubted that they were entitled to be heard on this point before the order was made. I did not, in my opinion consider the type of analysis which Chief Ajayi went into in this case relevant. He tried to show that the main question was the appointment of directors. Nor need I consider whether or not the order as made was more beneficial to the appellant or the Respondents. In my judgment the over-riding question is whether in the orders relating to restraining the holding of the general meeting as well as touching on the appointment of directors, the Respondents were, in the court of trial, entitled to be heard before the application was heard and the order made. Once I come to the conclusion that they should as I feel bound to do, it is no longer necessary to go into an analysis of the order made to find out whether or not it is beneficial to the applicant or whether it should have been granted if a hearing was had. For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of natural justice which is expressed by the maxim: audi alteram partem. It is note-worthy that Chief Ajayi conceded in his brief that "the effect of the two interim orders made by Anyaegbunam, C.J. was not only to prevent the 1st and 2nd Defendants from preventing the holding of the Annual General Meeting but also to place a restriction on the plaintiff from proceeding to appoint new Directors. . .

 

The Court of Appeal was therefore right to hold that the order for service of unspecified papers on the respondents which the learned Chief Judge made after making the orders ex parte was tantamount to shutting the stable after the animal had bolted away. In such matters the court proceeds on general principles. Blackburn, J., expressed this general principle over one century ago in these words in the case of R. v. Rand (1866) L.R. 1 Q.B. 834, at p.836:

 

It is not only of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

 

See also Lord Hewart, C.J.,in R. v. Sussex J.J., ex parte McCarthy (1924)1 K.B. 256, at p.259. Having heard the application ex parte and made the far reaching orders which I have set out above, I do not see what hearing was left to be done on the 27th of April. The decision in WEA Records Ltd. V. Visions Channel4 Ltd. (1983)1 W.L.R. 721 relied upon by Chief Ajayi is inapplicable in so far as it decided that orders for interlocutory injunctions can be made ex parte and served on the Respondent with his liberty to apply to set it aside.

 

The learned Senior Advocate for the appellant further attacked the opinion of the Court of Appeal that even if they were orders which the learned C.J. could have made on the ex parte application, there was no case of real urgency established and so the application should have been dismissed on that ground. He pointed out that there was an affidavit of urgency filed and that the only necessary value of such an affidavit was to help the learned Chief Judge to decide whether or not to take the application on grounds or urgency: once the court, upon a view of the affidavit of urgency, decided to take the application, the affidavit of urgency was spent. So, as this was a matter within his discretion, once he so decided his decision cannot be set aside on appeal. He conceded it, however, that decided cases show that ex parte injunctions are made on cases of real urgency, but went ahead to submit that what the learned Judge did was not to decide the application but to direct that the other side be put on notice.

 

With respect, I believe that the learned Senior Advocate for the appellant has missed the point. To start with, as I have stated, the C.J. decided the application. Also 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. Put in another way, if the matter is not shown to be urgent, there is no reason why exparte order should be made at all: the existence of real urgency, and not self-imposed urgency, is a sine qua non for a proper exparte order of injunction. On the contents of the affidavit of urgency set out above, I agree with the learned Justices of the Court of Appeal that no case of real urgency or any other exceptional circumstances was made out. What was shown was self-imposed urgency caused by the applicant's culpable delay in bringing the application. This was not enough.

 

The learned Senior Advocate for the appellant has also further argued that the Court of Appeal was wrong to have held that even if the ex parte order of injunction made by the learned Chief Judge was to set aside on other grounds, it would have been set aside for the failure of the appellant to give an under-taking as to damages. Re submitted that where an appellate court comes to the conclusion that such an undertaking was necessary but had not been given, it is no proper ground to set aside the order. The proper order to make was one directing the applicant to give the undertaking. In support, he cited the following cases:

 

Smith V. Day (1882) 22 Ch. D. at p.424

Graham V. Campbell (1877-1878) 7 Ch. D. 490, p.494

Att. -General V. Albany Hotel Coy. (1896) 2 Ch. 696, pp.699-700

Adamson V. Wilson (1864)10 L.T. 24 and

Chappel V. Davidson 44 E.R. 289.

 

He therefore submitted that the '~immutable position" which the Court of Appeal took in this case as it did in Appeal No. F.C.A./L15/81: University of Lagos v. Olaniyan of the 8th of February, 1981, wherein it held that failure of the appellant to give or to offer an undertaking as to damages was a sufficient ground for discharging the order was in error. The learned Senior Advocates for the Respondents strongly supported the opinion of the Court of Appeal on the matter.

 

In my respectful opinion, neither the statement of the general law nor the ratio of the cases cited by Chief Ajayi appears to support his contention on the point. The learned authors of Vol.24 Hats. Law of Eng. (4th Edn.) para. 1072 at pages 59~597 have stated thus with respect to interlocutory injunctions:

 

An undertaking as to damages is the price which the person asking for an interlocutory injuction has to pay for it, and it ought to be required in every interlocutory order, except in High Court and county court matrimonial and children's matters concerning personal conduct and except, possibly, in a clear case of fraud. By the undertaking the party obtaining the order undertakes to abide by any order as to damages which the court may make in case it should afterwards be of opinion that the Defendant has, by reason of the order sustained any damages which such party ought to pay

 

This was exactly what the Court of Appeal decided in Olaniyan's Case. Indeed the ratio of some of the cases cited by the learned Senior Advocate for the appellant lends support to the conclusion that the above is a correct statement of the law. In the case of Graham V. Campbell (supra) James L.J. stated at page 496:

 

The undertaking as to damages which ought to be given on every interlocutory injunction is one on which (unless under special circumstances) effect ought to be given.

 

While Chief Ajayi does not seriously dispute that an undertaking ought to have been 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 an injunction failed to order it. 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, with a quidpro 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 head. Indeed the need for it to be so is stronger in Nigeria where no Registrar has got the power to insert the order for the undertaking to be given while drawing up the order. 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 undertakes to pay any damages that may be occasioned by any such order which may turn out to be frivolous or improper in the end. 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. 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.

 

Chief Williams has raised the point that the whole action as filed by the appellant was based on injuries to the company and not those personal to him. He therefore raised the issue of competency of the action in view of the rule in Foss V. Harbottle (1843)67 ER. 189. Relying on the case of Heyting V. Dupont (1963) 3 ALL E.R. 97 he submitted that only the company could sue. Chief Ajayi, on the other hand, submitted that the appellant was personally injured by the acts complained of and so could bring the action. During the course of argument, it was revealed to us that a substantive appeal was pending on that issue in the Court of Appeal. As it is so, I would not wish to pre-empt that appeal by expressing an opinion on the issue at the moment.

 

While considering what consequential order to make, my attention was drawn to the order made by the Court of Appeal, Awogu, J.C.A.; in his lead judgment stated:

 

The orders of Anyaegbunam made in F.H.C./L35187 on April, 22, 1987, are hereby set aside and declared null and void. The suit is remitted to the Federal High Court for continuation before another Judge.

 

Chief Williams in a Notice of Appeal dated 15th June, 1988, has attacked this order. In his sole ground of appeal, he contends that the Court of Appeal in omitting to strike out the plaintiff's Motion exparte in view of its decision that the motion was incompetent and ought not to have been granted.

 

In my view, Chief Williams is right. The decision of the Court of Appeal which has been confirmed by this judgment is that the learned C.J. granted the motion for interlocutory injunction exparte but that he ought not to have done so. On the fact of that decision there is no basis for declaring the order null and void. But it is one that ought to have been set aside. As the only application before the learned Chief Judge was one for an interlocutory injunction which as I have held, he had wrongly granted cx parte, there is nothing left to be remitted to another Judge of the Federal High Court for determination. Having held that it was in error, the Court of Appeal should have just said so and, if need be, made an order striking out the application.

 

For all the reasons I have given above, the appeal fails and is hereby dismissed. The cross-appeal succeeds and is allowed. I hereby strike out the cx parte application.

The appellant shall pay the costs of this appeal which I assess as follows:

N500.00 in favour of the 1st Respondent;

N500.00 in favour of the 4th to 8th Respondents.

I have no order as to costs to the 2nd and 3rd Respondents.

 

 

Judgment delivered

by

Nnamani, J.S.C.:

 

 

I had a preview of the judgment just delivered by my learned brother, Nnaemeka-Agu J.S.C. and I entirely agree with his reasoning and conclusions.

 

My learned brother has admirably set down the facts which form the background to this matter and they cannot bear repetition. For purposes of this short concurring comment, I shall only mention such of them as are absolutely necessary.

 

The dispute in this Court appears to have started with the letter dated 14th April, 1987 written by the Central Bank to the plaintiff/appellant herein as Chairman of the Societe Generale Bank (Nigeria) Ltd., 3rd Respondent herein. The appellant, feeling aggrieved over some directives by the Central Bank, filed a Suit No. F.H.C./L/2L/87 in the Federal High Court Lagos. The Suit was against the Central Bank of Nigeria, the Attorney-General of the Federation and the Societe Generale Bank (Nigeria) Ltd. On the 22nd April, 1987 the appellant filed a "Motion Ex-parte" against the 2 parties mentioned above (2nd and 3rd Repondents herein) praying for an order:

 

(1)    restraining the 1st and 2nd Defendants their servants and/or agents from in any way obstructing or frustrating the holding of an Annual General Meeting of the 3rd Defendant Until the final determination of this suit.

 

(2)    for an order of injunction that until the determination of this Suit the Defendants be restrained from appointing or recognising the appointment of any person or persons as Directors of the 3rd Defendant company other than such of them as are or may be duly appointed in accordance with the provisions of the Articles of Association of the Defendant Bank." (Italics mine)

 

An Affidavit of Urgency was attached. On the same 22nd April, 1987, Anyaegbunam, C.J. (as he then was) in effect granted the reliefs. It is pertinent for a consideration of the issues here to set down the orders he made. They ran thus:

 

IT IS ORDERED AS FOLLOWS:

 

1.     That the 1st and 2nd Defendants/Respondents their servants and agents should not in any way obstruct or frustrate the holding of an Annual General Meeting of the 3rd Defendant/Respondent whenever it is fixed.

 

2.     That when the said Annual General Meeting is held the ordinary affairs of the 3rd Defendant/Respondent Bank should be discussed.

 

3.     That no new Directors will be appointed, the old Directors should continue to function until the determination of this Application or the Court otherwise directs.

 

4.     That 1st, 2nd and 3rd Defendants be served with all the motion papers. This will enable them file whatever papers they wish to file.

 

5.     That the Application do stand ajourned till Monday the 27th day of April, 1987 at 1 p.m.

 

The 1st Defendant/Respondent and the 4th-8th Respondents herein, who joined the suit later, appealed against this Ruling to the Court of Appeal. That Court (Awogu, Akpata, and Kalgo, JJ.C.A.) on 2nd June, 1988 allowed the appeal and set aside the orders. The appellant then appealed to this Court.

 

The issues for determination set down by the learned Senior Advocate for the 1st Respondent, Professor Kasunmu, S.A.N., and paragraphs (ii)(a)(b) and (c) of the issues for determination as set down in his own brief by Chief Williams

S.A.N. learned Senior Advocate for 4th-8th Respondents, appear to me to cover the issues that arise. As Professor Kasunmu put them, they were,

 

(1)     Regardless of the wording of the Rules of Court, should the learned trial Judge have entertained the appellant's application for an ex-parte interlocutory injunction more so in the particular instance when no case of real urgency was shown nor was it impossible to give notice of the motion to the Respondents.

 

(2)     Assuming (but without conceding that) that the learned trial Chief Judge could take the application, should he have made the various orders made on the said application.

 

(3)     Should an undertaking as to damages not have been taken from the appellant and what is the effect of a failure so to do."

 

There does not appear to have been much difficulty in this appeal about the different meaning and implication of interim and interlocutory injunctions. It was generally agreed that an interlocutory injunction is one pending the determination of the Suit while an interim injunction is one granted to last a few days or until further order. In the case of an interim injunction, it is usually named to a definite date pending the hearing of a motion on notice between the parties. See Beese V. Woodhouse (1970)1 ALL E.R. 769; (1970)1 W.L.R. 586; Re Johnson ex parte Abrams (1884) 50 L.T. 184; Allport V. Securities Corporation (1895) 64 L.J. CH. 491; Beecham Group Ltd. V. Bristol Laboratories Pty Ltd. 118 C.L.R. 618, 623. Also Haisburys Laws of En gland Vol.24, 4th Edition para, 904 and fig. it seems unarguable that the motion here as framed by the appellant is for an interlocutory injunction for it is "pending the determination of the Suit." It seems to me too that there was agreement that exparte injunction (whether interim or interlocutory) can be granted by the courts provided there is real urgency. An ex-parte interim injunction can be granted where the Judge considers on a prima facie view that otherwise irreparable damage may be done to the plaintiff before an application for interlocutory injunction can be heard after notice has been given to the opposing party. See American Cyanamid Coy V. Ethicon Ltd. (1975) A.C. 396.

 

In the same way, an interlocutory injunction can be granted exparte in cases of real urgency or as stated above where it is necessary to preserve the Res. As to the lattersee Thomas A. Edison Ltd. V. Bullock (1912) 15C.L.R. 679,681. Because of the nature of interlocutory injunction and the principles governing its grant, which presupposes some contest between the parties (see Heavener V. Loomes 34 C.L.R. 306, 326 and Obeya Memorial Hospital V. Attorney-General of the Federation (1987)3 N.W.L.R. (Pt.60) 325, it is usual to emphasise that this jurisdiction to grant an interlocutory injunction ex parte is an extraordinary jurisdiction. It is for this reason that in the case of real urgency, the court scrutinises the application to ensure that there is in fact urgency and that the applicant has not been guilty of delay. In the case of ex parte interlocutory injunction to preserve a res, it is usual to file a motion on notice at the same time as the motion exparte is filed. Whatever order is made stands until the motion on notice is taken.

The extraordinary jurisdiction being exercised in ex-parte interlocutory injunctions, or its being out of the ordinary is brought out in the words of Griffith, C.J. in Thomas Edison Ltd. (supra) at page 681 where he said,

 

There is a primary percept governing the administration of justice, that no man is to be condemned unheard; and therefore, as a geneal rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence. But instances occur where justice could not be done unless the subject-matter of the suit were preserved, and if that is in danger of destruction by one party, or if irremediable or serious damage be imminent, the other may come to the court, and ask for interposition even in the absence of his opponent, on the ground that delay would involve greater in-justice than instant action. But when he does so, and the Court is asked to disregard the usual requirement of hearing the other side, the party moving incurs a most serious responsibility.

 

The real issue, therefore, in this appeal is, as stated in the issues for determination, whether there were circumstances here justifying the grant of interlocutory injunction exparte. More directly, was there real urgency? Usually in cases of ex-parte applications for injunction on the ground of real urgency in the court would, as indicated earlier, examine the fact to ensure that the party applying has not been guilty of delay and furthermore that there is an impossibility of bringing an application on notice and serving the other party. In Bates v. Lord Hajisham (1972) 3 ALL E.R. 1019. Megarry J. (as he then was) held that the applicants could not meet the above standards and so refused the application. At page 1025 he made remarks which are quite relevant to the circumstances of the instant suit. He said,

 

There are, of course, occasions when circumstances make an earlier application impossible. But here, the dates speak for themselves. The announcement by the Lord Chancellor of the proposal to abolish scale fees altogether was made over two and half months ago. The association's first circular was sent out at about the same time. The draft order was published nearly a month ago. Well over three weeks ago it was in the hands of Solicitors generally. Not until a week ago did the association send its submissions to the Committee, following them up with individual letters some five days ago. For nearly three weeks the association has known that the Committee was to meet today On these facts counsel for the plaintiff did his best, but the material was intractable. An injunction is a serious matter and must be treated seriously. If there is a plaintiff who has known about a proposal for ten weeks in general terms and for nearly three weeks in detail, and he wants an injunction to prevent effect being given to it at a meeting of which he has known for well over a fortnight, he must have a most cogent explanation if he is to obtain his injunction on an ex-parte application made two and half hours before the meeting is due to begin. It is no answer to say, as counsel for the plaintiff sought to say, that the grant of an injunction will do the Defendants no harm, for apart from other considerations, an inference from an insufficiently explained tardiness in the application is that the urgency and the gravity of the plaintiff's case are less than compelling. Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion.

 

In the instant suit, the appellant in his affidavit of urgency stated the urgency in paragraphs 3, 4 and 5 therein. In effect he referred to the letter of the Central Bank dated 14th April, 1987 which he received on 16th April, 1987. He mentioned that an Annual General Meeting of the 3rd Respondent Bank had been fixed for 25th April, 1987 and notices for the said meeting were sent on 26th March, 1987. He then mentioned in paragraph that the 1st Respondent had in the said letter of 14th April directed that the Nigerian Directors of the 3rd Respondent do meet urgently to select its representatives on the Board of the Bank and that the list be forwarded to the 1st Respondent within 10 days of the letter. The letter, he said, had threatened appropriate measures if the list of Directors was not sent within 10 days. From these facts, it can be seen that the appellant did nothing since 16th April, 1987 when he received the said letter from the 1st Respondent. It was not until 22nd April, three days to the meeting which was scheduled on the 25th April, and two days to the deadline given him by the 1st Respondent, that he brought his application for injunctive relief. Surely if there was any emergency, it was one induced by his lethargy and tardiness. Besides, there were three clear days to the scheduled Annual General Meeting and two days before the 1st Respondent's deadline. Why was it impossible for the appellant to serve his motion papers on the Respondents particularly as all of them are resident in Lagos? I am also of the view that the Court of Appeal was right in its conclusion that there was no real urgency that would have justified granting the interlocutory injunctive reliefs ex parte as the learned Chief Judge did.

 

The other matter I would wish to touch briefly is this. It seems to me that from all the authorities, where an application for interlocutory injunction is made ex parte, and the court cannot see any facts showing real urgency or a desire to preserve a res from imminent destruction or that there is an impossibility of service of the motion on the other party, the court should either refuse it or order that the other party be put on notice and so served with all the relevant papers. The court will then determine the application by the principles for granting interlocutory injunction. In my view that ought to be the proper role of Order 33 Rule 10 of the Federal High Court Civil Procedure Rules 1st and 3rd Options. It seems to me that if Order 33 is cited as authority for all ex parte applications for interlocutory injunctions no matter the facts, the question of conflict with Section 33 of the Constitution would surely arise.

 

Learned Senior Advocate for the appellant, Chief Ajayi, S.A.N. actually submitted to this court that the learned trial Chief Judge acted under Order 33 Rule 103rd option. He said the learned Chief Judge made interim order on the live issues and directed that all the papers be served on the Respondent for hearing on 27th April, 1987.1 had previously set down the orders made by the learned Chief Judge. Orders 4 and 5 would on the face of them appear to bear out learned counsel's submission. But having regard to the nature of the orders made what was there to discuss on the 27th April? For one thing, the Annual General Meeting scheduled for 25th April would have been held. Further more, were the other orders made interim orders? Certainly not They were absolute, final orders which seem to have given the appellant some of the reliefs he claimed in his statement of claim. For instance, the first order made by the learned Chief Judge was in effect the same as the claim in paragraph 26(ix) of the appellant's statement of claim. There the appellant claimed

 

an injunction restraining the 1st and 2nd Defendants from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank for the purposes of electing new Directors or effecting any of the Statutory purposes for which Annual Geneal Meetings are required to be held by the Companies Act, 1968.

 

The learned Chief Judge did not act under the 3rd option of Order 33 Rule 10. Finally, the question of undertaking to pay damages which is the third issue for determination has been exhaustively dealt with by my learned brother in the lead judgment. I merely wish to associate myself with the view that, having regard to the manner ex-parte injunctions have lately been used in this country, an undertaking to pay damages must be extracted before the grant of such injunctions. It is settled that an undertaking to pay damages is the price which the person asking for an interlocutory injunction has to pay, and it ought to be required on every interlocutory order. See Chappel V. Davidson 44 E.R. 289; Graham V. Campbell (1877-1878)7 Ch. D. 490 C.A., Smith V. Day (1882) 21 Ch. D. 421 C.A.; Baxter V. Claydon (1952) W.N., 376, Tiwker V. New Brunswick Trading Co. of London (1890) 44 Ch. D. 249. The undertaking to pay damages applies whether the plaintiff has not been guilty of misrepresentation, suppression or other default in obtaining the injunction. Griffith V. Blake (1884) 27 Ch. D. 474 C.A. dissenting from contrary dictum of Jessel M.R. in Smith V. Day (supra). The undertaking is equally enforceable whether the mistake in granting the injunction was on a point of law or fact. Hunt V. Hunt (1884) 54 L.J. Ch. 289 (again contrary to the dictum of Jessel M.R. in Smith V. Day.)

 

These cases, particularly Graham V. Campbell and Griffith V. Blake, seem to me to suggest that the undertaking for damages is much more than the rule of practice which Chief Ajayi made it out to be. Besides one must take cognisance of the difference in the practice of the courts in England and our Courts. While a Registrar may insert an undertaking to pay damages in a drawn up order where the trial Court has failed to record such an undertaking in England no Registrar could do that in Nigeria. 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.

 

I too would, and do, dismiss this appeal. I abide by all the orders made by Nnaemeka-Agu, J.S.C., including the order for costs.

 

 

 

Judgment delivered

by

Karibi-Whyte, J.S. C.:

 

 

I have had the opportunity of reading the judgment of my learned brother, Nnaemeka-Agu, J.S.C. ,just delivered. I agree with his reasoning and conclusions that this appeal from the Court of Appeal, Lagos Division, fails and should be dismissed. I will refrain from stating the facts of the case in any detail. This has been very fully stated in my learned brother, Nnaemeka-Agu's judgment.

 

The salient facts in this appeal may be briefly stated as follows. Appellant is the Chairman of the Board of Directors of the 3rd Respondent Bank; a limited liability company. The 1st Defendant, is the institution statutorily charged with the supervision of the 3rd Defendant Bank of which appellant/plaintiff is the Chairman. As a result of certain complaints made to it about the administration of the 3rd~ Respondent Bank, the 1st Respondent acting by virtue of powers under section 22 of the Banking Act 1969 addressed a letter to the 3rd Respondent dated 14th April, 1987, but received on the 16th giving the following directives:-

 

(a)    That both appellant and the 7th Respondent revert to their status quo as at the date of their Meeting with the Minister of Finance in 1982.

 

(b)    That all shares acquired by each of them after that date be offered for sale to other Nigerians.

 

(c)    That a new Board of Directors of the 3rd Respondent Bank shall be appointed, and that in such new Board of Directors of the Bank, no person who has previously served as a Director of the Bank be appointed.

 

(d)    That the Nigerian Shareholders should meet as a group within ten days to nominate Nigerians to serve on the new Board of Directors of the 3rd Respondent Bank.

 

This directive was given nine days before the statutory annual general meeting of the 3rd Respondent Bank which was fixed for April25, 1987. On the 22nd April, 1987 appellant filed a writ of summons claiming as follows:

 

(i)     A Declaration that the directive given by the 1st Defendant in its letter DG/COMBAN KS/Vol.1/359 of the 14th April, 1987 to the effect that the shareholding of the plaintiff in the 3rd Defendant should revert to the reduced figure of N2,937,45O shares held by him in 1982 is ultra vires the 1st Defendant and is null and void.

 

(ii)    A Declaration that the directive given by the 1st Defendant in the said letter that all shares acquired by the plaintiff in the 3rd Defendant since 1982 be divested ot other Nigerians is ultra vires the 1st Defendant.

 

(iii)    A Declaration that the plaintiff is owner of 8,386,100 shares of b&l .00 each in the 3rd Defendant Bank.

 

(iv)   A Declaration that the directive of the 1st Defendant that a fresh Board of the 3rd Defendant be re-constituted so that former members of the Board be not re-appointed thereto is:

 

(a)    ultra vires the 1st Defendant and void; and

 

(b)    is an unwarranted interference with the affairs of the company as constituted.

 

(c)    an unwarranted interference with the plaintiff's rights to be reelected a Director under the Articles of Association of the Bank.

 

(v)    A Declaration that the plaintiff is entitled to be re-appointed a Director of the 3rd Defendant Bank at its scheduled Annual General Meeting fixed for the 25th of April, 1987 in accordance with the provisions of Articles 96, 97 and 98 of the Articles of Association of the 3rd Defendant Bank.

 

(vi)   A Declaration that the directive given by the Federal Ministry of Finance by letter dated the 6th day of April, 1987 to the effect that the Annual General Meeting of the Bank fixed for the 25th April, 1987 be postponed until a new Board of Directors is constituted is ultra vires, null and void.

 

(vii)  A Declaration that the Plaintiff is entitled to remain in office as a Director of the 3rd Defendant Bank until he is removed from office in accordance with the provisions of the Companies Act or the Articles of Association of the 3rd Defendant Bank.

 

(viii) An injunction restraining the 1st and 2nd Defendants from exercising any of their respective powers whether under the Banking Act or under the Companies Act in such a way as to give effect to or provide sanctions against the plaintiff for failure to give effect to any of the aforesaid directives of the 1st Defendant.

 

(ix)    An injunction restraining the 1st and 2nd Defendants from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank for the purposes of electing new Directors or affecting any of the Statutory purposes for which Annual General Meetings are required to be held by the Companies Act 1968.

 

Simultaneously he also filed a motion ex parte under Order 20 of the Federal High Court Rules 1976, praying the Federal High Court to

 

(i)     restrain the 1st and 2nd Defendants (now Respondents) their servants and/or agents from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank until the final determination of th is suit.

 

(ii)     for an order of injunction that until the determination of this suit, the Defendants be restrained from appointing or recognising the appointment of any person or persons as Directors of the 3rd Defendant Company other than such of them as are or may be duly appointed in accordance with the provisions of the Articles of Association of the 3rd Defendant Bank.

 

The application which was supported by an affidavit of urgency also prayed for such order or orders as the Honourable Court may deem fit to make in the circumstances. The words underlined undoubtedly refer to the substantive suit filed. I reproduce the averments in the affidavit of urgency relied upon by the applicant/appellant in support of the motion exparte.

 

2.     That I am the Chairman of the Board of Directors of the 3rd Defendant Bank.

 

3.     That Notice summoning the Annual General Meeting of the 3rd Defendant Bank for the 25th of April, 1987 was issued on the 26th of March, 1987.

 

4.     That on the morning of Thursday the 16th of April, 1987, I returned home a little after 12 noon and was shown a letter addressed to me by the 1st Defendant herein directing that the Nigerian Directors of the 3rd Defendant Bank do meet urgently and to select its representatives on the Board of the Bank and forward a list thereof to the 1st Defendant within 10 days of the letter. The said letter is dated the ~4th April, 1987 and a copy of the same is already exhibited to the Affidavit in support of the Motion filed herein.

 

5.     That the 1st Defendant has threatened in its aforesaid letter that if the list of new Directors is not supplied to it within 10 days of the said letter it would take appropriate measures against the 3rd Defendant under the Banking Act.

 

6.     That I have therefore commenced these proceedings seeking a number of declarations and injunctive reliefs.

 

7.     That I have also filed an ex-parte Motion for interim injunction and it is of crucial importance that this application for interim injunction be heard immediately in view of the fact that the Annual General Meeting of the Bank is due to be held at the end of this week and the time limit within which the 1st Defendant has demanded a list of Directors will expire on the 24th April, 1987.

 

8.     That I therefore pray that this application be heard as a matter of urgency.

 

Attached to the ex-parte motion was an affidavit, a statement of claim, and the Memorandum and Articles of Association of the 3rd Defendant/Respondent Bank.

 

The motion ex parte praying for orders of injunction was heard and granted by the learned Chief Judge of the Federal High Court on the 22nd April, 1987, the day it was filed. The enrolled order of the Court states as follows:

 

(1)     That the 1st and 2nd Defendants/Respondents their servants and agents should not in any way obstruct or frustrate the holding of the Annual General Meeting of the 3rd Defendant/Respondent whenever it is fixed.

 

(2)     That when the said Annual General Meeting is held the ordinary affairs of the 3rd Defendant/Respondent Bank should be discussed.

 

(3)     That no new Directors will be appointed, the old Directors should continue to function until the determination of this application or the Court otherwise orders.

 

(4)    That 1st, 2nd, and 3rd Defendants/Respondents be served with all the motion papers. This will enable them file whatever papers they wish to file

 

(5)    That the application do stand adjourned till Monday the 27th day of April, 1987 at 1p.m.

 

The 1st Defendant/Respondent filed an appeal to the Court of Appeal against the orders made. The four Grounds of Appeal are as follows -

 

1.     Having regard to the fact that the plaintiff's application was for an order of injunction ex parte until the final determination of this suit which application is irregular and improper having regard to decisions of the Court of Appeal (which decisions are binding on the trial Court) the learned trial Judge erred in law in entertaining the application when it should have been struck out.

 

In the alternative

 

2.     The learned trial Judge erred in law in dealing with the plaintiff's application ex parte when having regard to the affidavit evidence before the Court, no reason of extreme urgency or emergency was shown for not putting the Defendants on notice.

 

3.     The learned trial Judge erred in law in making the order of injunction dated the 22nd of April, 1987 without extracting from the plaintiff/ applicant an undertaking for damages having regard to decisions of the Court of Appeal which decisions are binding on the trial Court on the need for the taking of such an undertaking.

 

4.     The order of Court '~that no new Directors will be appointed, the old Directors should continue to function until the determination of this application or the Court otherwise orders" is vague, irregular and improper in that

 

(a)     the order made by the trial Court was not what the Applicant requested for;

 

(b)    having disposed of the motion ex parte there was no other application pending before the Court on which the order could be said to be dependent upon;

 

(c)    the order of the trial Court was in effect the granting of an in-junction ex parte for an indefinite duration without hearing the Defendant.

 

In the determination of the appeal in the Court below, the court accepted as sufficient formulation of the issues raised to be whether or not the order were properly made on an ex parte application.

 

In their judgment, the Court of Appeal held that the application was brought under Order 20, but was treated by the learned Chief Judge as if it was brought under Order 33 rule 3 of the Federal High Court Rules 1976. After a discussion of the provisions of Order 33 rule 3, the Court of Appeal held that,

 

.. . it is clear that what the Court ordered was in the nature of an immediate absolute order." This is because although the meeting was scheduled for the 25th April, 1987, the order which was for ~whenever it is fixed" could not be said to be in the nature of an interim order. The Court of Appeal said "The absolutism of the order was clearly beyond doubt, the more so as further hearing was fixed after 25/4/87.

 

The Court of Appeal also considered the question whether or not a case of real urgency was made out, and held that no case of real urgency was disclosed in the affidavit of urgency in support of the application.

 

The Court held that the affidavit of urgency filed in support of the application did not contain any averments of real urgency or exceptional circumstances to warrant the granting of the orders sought. The second order which restricted the agenda of the Annual General Meeting to the ordinary affairs of the 3rd Defendant/Respondent Bank, thereby excluding appointment of Directors was held to have been made gratuitously as it was not one of the prayers sought. The 3rd Order which prohibited the appointment of new Directors, thus enabling the existing Directors to continue to function until the determination of the application, was held to be inconsistent with the prayer that there should be no appointment or recognition of any appointment other than in accordance with the provisions of the Articles of Association.

 

Finally, the Court below referred to the case of Ojukwu v. Governor, Lagos State (1986)3 N.W. L.R. (Pt.26) 39 where it was held that where an application was made ex parte, praying for an order until the final determination of the suit, the application should not be taken ex parte.

 

Applicant/Respondent, not satisfied with this judgment has now appealed to this Court. Ten Grounds of Appeal were filed. I do not consider it necessary to set out the grounds of appeal which covered every reasoning of the judgment of the Court of Appeal. I think it will be sufficient for my purpose to rely on the formulation by counsel of issues which arise for determination which adequately encompass all the grounds of appeal.

 

Counsel to the appellant, Chief G. 0. K. Ajayi, S.A.N., has formulated the issue differently from the 1st Respondent. The formulation of the issue by counsel for the appellant is as follows:-

 

Was the order of Anyaegbunam, C.J., now under appeal an immediate absolute order or was it an order directing that the parties likely to be affected be put on notice coupled with an interim order made to subsist until the parties could be heard.

 

Learned Senior Counsel to the 1st Respondent, Professor A. B. Kasunmu, S.A.N., rejected this formulation of the issues to be determined and formulated the issues as follows:-

 

The 1st Respondent does not agree with the formulation of the issues as set out in the appellant's brief. The issues for determination in this appeal as hereinafter formulated (though differently worded) are almost similar to the issues placed before the Court of Appeal for determination namely:

 

(1)     Regardless of the wording of the rules of Court, should the learned trial Judge have entertained the appellant's application for an exparte interlocutory injunction more so in the particular instance when no case of real urgency was shown nor was it impossible to give notice of the motion to the Respondents.

 

(2)     Assuming (but without conceding) that the learned Chief Judge could take the application, should he have made the various orders made on the said application.

 

(3)    Should an undertaking as to damages not have been taken from the appellant and what is the effect of a failure so to do.

 

Counsel to the 4th-8th Respondents who applied and was granted leave to be joined in the Court below, agreed with the formulation of the issues to be determined by the Court, but the wording was differently couched as follows:

 

It is respectfully submitted that the questions for determination in this appeal are as follows:

 

(i)     Whether the High Court had jurisdiction to entertain the motion ex parte or, indeed, the claims relevant to that motion.

 

(ii)     If, but only if the answer to Question (i) is in the negative:-

 

(a)    Whether the court below was correct in deciding that the Federal High Court ought not to have entertained the plaintiff's application.

 

(b)    Whether the court below was correct in saying that there were no exceptional circumstances to justify the grant of interlocutory injunctions by ex parte orders in this case, and

 

(c)   Whether the court was correct in setting aside the order on the ground also that the plaintiff gave no undertaking as to damages in respect of the injunction.

 

I agree with the latter formulation of the issues and adopt it in this judgment. Concisely stated the issues to be determined in the appeal before us as in the Court of Appeal are,

 

(1)    Whether the learned trial Judge was right in making the orders he made on the ex parte application before him.

 

(2)    Whether the absence of an undertaking to pay costs rendered the orders made on the ex parte application invalid.

 

I shall now turn to the submissions of counsel in this appeal. Chief G. 0. K. Ajayi, S.A.N., adopted his brief of argument filed and founded his argument on the submission that the Order made should be interpreted within the general context in which it was made and in the light of the documents placed before the court and the submissions by counsel. The five orders made, he urged, should be read together within the framework of Order 20 rules 4 and 5, Order 33 rules 8 and 10, Rules of the Federal High Court, 1976. Learned Senior Counsel pointed out that the third Order was clearly made "until the determination of this application" and the fourth directed service of all the Motion papers on the Defendants. Counsel therefore submitted that

 

(a)     the learned Chief Judge did not consider himself as having determined the application before him as an exparte application.

 

(b)     He knew he was making an interim order until the determination of the application.

 

(c)     The application before him was to be determined only after notice to the parties affected who were given opportunity to file whatever papers they wished.

 

(d)     The exparte application was to be heard by the learned Chief Judge on the 27th of April, 1987.

 

(e)     In any event in making these orders, the learned Chief Judge was acting within the provisions of Order 20 rule 5 and Order 33 rule 10 of the Federal High Court Civil Procedure Rules 1976.

 

Learned Senior Counsel referred to the third order where the learned Chief Judge stated that the order that the existing directors should continue in office until the determination of this application or the court otherwise orders, was not restraining the appointment of new directors as proposed by them until the determination of the suit. It was submitted that the order was directed at the 1st and 2nd Respondents, who alone were concerned in the application. It did not extend to the main prayer on the interlocutory injunction which was to operate until the determination of the suit.

 

Counsel further referred to the practice in ex parte applications where an interim order to last for a few days is usually followed by notice to the other party. This is the practice provided for in Order 20 rule 5 and Order 33 rule 10. This, it was submitted, was what the learned Chief Judge did.

 

Learned Senior Counsel rejected the holding that the learned Chief Judge made any absolute orders. He submitted that the order on the holding of the routine annual general meeting was not an order on an issue which was in dispute between parties. It was this order that was being regarded as an absolute order.

 

On the holding by the Court of Appeal in the Order, that the learned Chief Judge granted more than was asked for, the learned Senior Counsel submitted that that was not the effect of the order. First, the existing directors were to function until the determination of this application. Secondly, that 1st and 2nd Defendants should be restrained from exercising the powers to remove the directors, who only should be removed in accordance with the Articles of Association of the 3rd Defendant Bank. It was submitted that the ex parte order only preserved the status of the plaintiff(appellant as Director until the parties were served with the Motion Papers, and they came to Court on the 27th April, 1987.

 

Referring to the words of the 3rd and 5th Orders, Counsel submitted that it cannot be said that the learned Chief Judge had disposed of the ex parte application before him. The live issue as to the appointment of Directors was reserved for determination after service on the Defendants.

 

Learned Counsel submitted that the 'Court of Appeal was wrong to have relied on the averments in the affidavit of urgency for the determination whether the application ought to be granted as distinct from whether the court should have heard the motion exparte urgently. It was submitted that having heard the motion ex parte the purpose of the affidavit of urgency was spent. The question whether the prayers should be granted depended on other considerations.

Counsel argued that the requirement of an undertaking for damages in an interlocutory injunction is a rule of practice. An omission to extract the undertaking did not render the order for interlocutory injunction ipso facto liable to be set aside on appeal. Since the initiative to demand an undertaking for damages in interlocutory injunction lies with the court, and it is discretionary, its absence should not affect the order made.

 

On the facts of this case, only the Central Bank, 1st Defendant complained against the order of the learned Chief Judge. The 2nd & 3rd, 4th-8th Defendants were not parties to the suit when the order for interim injunction was made; and no order was made against them.

 

There is no evidence on the record that the 1st Defendant was likely to suffer any damage financially or materially as a result of the grant of the injunction to make it necessary to extract undertaking for damages. Even if the facts were that an undertaking for damages was necessary, the Court of Appeal instead of setting aside the order of injunction should direct the plaintiff to give the undertaking.

 

The above are summarily stated, the submissions of learned Counsel for the appellant. It is a fundamental principle for the administration of justice in civil cases, that the court is limited and circumscribed in what it can grant or the awards it can make by the claim of the Plaintiff. He is not entitled to be awarded more. In Ekpenyong & ors. V. In yang Nyong & ors. (1975) 2 S.C. 71, 8(), this Court declared:

 

The Court is without power to award to claimant that which he did not claim . . . We take the view that this proposition of the law is not only good law but good sense. A court of law may award less, and not more than what the parties have claimed or pleaded by either party.

 

See also Ochonma V. Unosi (1965) N.M.L.R. 321. It is pertinent to this appeal to point out that the appellant brought his application under Order XX of the Federal High Court Rules, 1976. He has argued in his brief that he relied on Order XX rules 4 and 5, which provide in the proviso as follows:

The proviso to Order XX rule 4 which is relevant provides:

 

Provided always that any order for an injunction may be discharged or varied or set aside by the court on application made thereto by any party dissatisfied with such order.

 

Order XX deals with injunctions generally and the main rule of rule 4 is construable to include applications by motion for interlocutory and perpetual injunctions, on notice. For instance rule 5 of order XX provides:-

 

The Court may, in every case, before granting an injunction or order as aforesaid, direct such reasonable notice of the application of the same to be given to the opposite party as it may seem fit.

 

Thus Rule 5 appears to provide expressly that an application for injunction cannot be granted unless reasonable notice of the application has been given to the opposite party. Thus, applications for injunction to be granted without notice to the parties to be affected, known as ex parte applications, do not come within the Rule. It is important to advert to the expression in every case" in rule 5 which is the last rule in Order XX, and which governs all the other rules relating to applications for injunctions. Thus the phrase in every case means in all applications under Order XX rule 4, which contemplate interlocutory applications for injunctions. I do not think the word '~may" in rule 5 can be interpreted as precatory. I think it is intended to be mandatory. Thus, an application for injunction under Order XX can only be by motion on notice.

 

But Order XXXIII provides generally for interlocutory applications and contemplate such applications as under Order XX. Particular mention of Order XXXIII rule 7 provides that interlocutory applications may be made ex parte or after notice to the parties affected thereby is necessary. Similarly, Order XXXIII rules 8 and 10 which deal with ex parte applications are important as laying down the orders which the court can make on interlocutory applications. Rule 8 provides that on a motion exparte, the applicant shall ask for

 

(i)     an immediate absolute order of the Court, in the terms of the motion paper and affidavit in support, or

 

(ii)     an order on the other party to appear on a certain day, to show cause why the order should not be made in terms of the motion paper.

 

The Court may, as provided by rule 10

 

(a)    refuse to make the order sought

 

(b)    grant an order to show cause why the order should not be made

 

(c)    allow the motion to be made on notice to the parties to be affected thereby.

 

Thus, an ex parte application is one made and could be granted without notice to the party affected by the order sought in the application. An application for injunction made after the commencement of the suit and before judgment is undoubtedly interlocutory and comes within the purview of order XXXIII. Such application can be made ex parte. Although an ex parte application for injunction can be made, the court may refuse to make the order sought where the interest of justice demands that the other party to be affected ought to be put on notice, or it will be contrary to the general provisions of the law or inconsistent with the interest of justice.

It is important to consider the provision of rule 10 as to the orders the court may make on exparte applications made under order XXXIII rule 8. It seems to me that although rule 8 enables an application ex parte to ask for an immediate absolute order of the court in terms of the motion paper and evidence, the court may refuse the order sought, or grant an order to show cause why the order should not be made, or may allow the parties to be affected to be put on notice. The court is not allowed to grant the order sought in the application ex parte, i.e. without notice to the parties to be affected. It cannot grant an order sought in absolute terms because rule 10 clearly limits the orders it can make to those prescribed therein. The express mention of the refusal to grant the order sought in absolute terms excludes the possibility of a grant. This is strengthened by the orders which can be made. The rule is therefore consistent with the provisions of section 33(1) of the Constitution 1979 which prohibits the making of a determination affecting the civil rights and obligations of a person without hearing him.

 

It is useful to examine the meaning and scope of the words '~interlocutory" and "interim" which have been used very freely and often times regarded as interchangeable in applications for injunctions. See Kufeji V. Kogbe (1961)1 All N.L.R. 113; Iroegbu v. Ugbo (197~71) 1 E.C.S.L.R. 162. An interlocutory application is an application which can be made in the course of a proceeding, and at any stage of a cause or matter, for the purpose of keeping the parties in status quo till the determination of the action - See Obeya Memorial Specialist Hospital V. Attorney-General for the Federation (1987) 3 N.W.L.R. (Pt.60) 325. Ojukwu V. Governor of Lagos State (1986) 3 N.W.L.R. (Pt.26) 39.

 

The word "intenm" used also in applications and orders of injunction for maintaining the status quo of parties to a suit means "temporary", "in the mean time." However an injunction described as interim falls within the above definition and is an interlocutory injunction because it is an application made in the course of the proceedings. But unlike an interlocutory injunction properly so called, an interim injunction is not one granted till the determination of the suit. It is an injunction made until a named date or until further order or until an application on notice can be heard. Thus they bear all the features and trappings of an interlocutory injunction and granted upon the same consideration of equity. Interim orders for injunction can be made pending motion on notice of an interlocutory injunction where applicant is able to show that irretrievable damage may be done before the completion of the hearing of the interlocutory application - See Beese V. Woodhouse (1970)1 W.L.R. 586, 590. An interim injunction is intended to be temporary in its character and any person at whose suit such an injunction is obtained is under an obligation to limit, so far as possible, the time during which it is operative. See Portway Press Ltd. V. Hague (1957) R.P.C. 426 at p. 429. In such a case, the court makes an order to preserve the status quo until the application for interlocutory injunction can be heard and determined. The paramount objective being the doing of justice to the parties. the court has a duty to preserve and protect the right of the parties before it from destruction by either of the parties where such a right is threatened by imminent danger from the action of the other. See Anton Piller KG v. Manufacturing Processes (1976)1 All E.R. 779. An ex parte application is an application made without notice to the party to be affected by the order to be made. Order XXXIII rule 7 which provides for interlocutory applications to be made either ex parte, or after notice to the parties to be affected thereby, also provides that the court may refuse to make the order sought, or may grant an order to show cause why the order should not be made, or may allow the motion to be made on notice to the parties to be affected thereby - See Order XXXIII rule 10. I have already construed this rule in this judgment to mean that it does not envisage tize making of an immediate absolute order. Such order can be made on notice. Rules 11 12 of Order XXXI II which provide for the varying or discharge of an cx parte order within seven days after service of it or within such further time as the court will allow seems to me to support this view.

 

I agree with the submission of Chief G. 0. K. Ajayi, S.A.N., that an application for interlocutory injunction can be made ex parte. But I do not agree that a court can make such an order ex parte. I have already given my reasons for so holding, relying on my interpretation of Order XXXII I rules 10, 11 of the Federal High Court Rules 1976. I think Professor A. B. Kasunmu, S.A.N., with whom Chief F. R. A. Williams, S.A.N., agrees is right in his submission that once the application is one ~until the final determination of the suit" as was prayed for by the appellant in this case it is an interlocutory injunction which ought not to be heard or granted ex parte - See Ojukwu V. Governor of Lagos State & anor. (1986)3 N.W.L.R. (Pt.26) 39 at p.44.

 

I would have agreed with Mr. Adio, counsel for the Attorney-General when he submitted that appellant applied for an interlocutory order when what he actually needed was an interim order. So far so good. But we parted ways when he went on to submit that the learned Chief Judge was right to have entertained the application and for ~cutting the application to size in the way he made subsequent five orders This is another way of saying that the court can grant to parties what they have not asked for. This is clearly wrong. Where what applicant prays for is an interim injunction, the order may be made until further order or a named date to enable the Respondent to be put on notice. This is not so in the instant case. Chief Olowofoyeku, S.A.N., for the 3rd Respondent who had not appealed against the judgment filed a brief urging that the appeal be allowed. Chief Williams, S.A.N., objected that Respondent having not cross-appealed was not entitled to attack the judgment. The point was very well taken. It is a well settled practice of this Court that a Respondent seeking to set aside the judgment on other grounds is entitled to file a cross-appeal or a Respondent's notice - See Oguma Associated Companies (Nig.) Ltd. v. lB. WA. Ltd. (1988) 1 N.W.L.R. (Pt.73) 658. We according struck out the brief of argument which has not complied with Order 8 rule 3 of Rules of the Supreme Court 1985, Order 6 rule 6.

 

I now turn to the nature of the Order made and to the submission whether or not they are immediate absolute orders or not. Chief G. 0. K. Ajayi, S.A.N. conceded that there was only one application ex parte, and by its nature it was an application for an interlocutory order, but submitted that the learned Chief Judge on that application made an interim order on the 22nd April and ad journed to the 27th April, for hearing when the Respondents were to be heard. This submission was in line with Mr. Adio's submission.

 

As against this argument both Professor Kasunmu for the 1st Respondent and Chief Williams for the 4th-8th Respondents pointed out that the orders were made on the only ex parte motion before the learned Chief Judge; that the first two orders made were in the nature of absolute orders which granted the prayers in the application, and that the remaining three orders were ancillary to the first two. Chief Williams took the view that the 4th Order which adjourned the application, after it has been decided, to the 27th April, converted the order to an interim order, which he did not concede, the order for hearing being fixed for the 27th April, 1987 when the meeting was fixed for the 25th was a spent order and offends against section 33 of the Constitution 1979.

 

There is considerable force in the arguments of Professor Kasunmu and Chief Williams. What, one may ask, is an immediate absolute order? It is in my opinion an order which is final as to the thing sought to be done without the interposition of any other order. There is no doubt that the 1st order which restrains the 1st and 2nd Defendants from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant/Respondent, WHENEVER IT IS FIXED is final and an absolute order not related to any time element before the other side could be heard in respect of that order. Similarly, the 2nd Order. Even if it is conceded that there was an adjournment to the 27th April, what were the issues then left to be heard on that date? I am unable to discover any, although Chief Ajayi refers to the appointment of Directors. This is the issue to be decided in the annual general meeting and was prohibited from discussion. The order made for service of papers on the Respondents which were not specified has not improved the situation. What Order XXXII I rule 10 requires in an ex parte application is that the court can refuse to make the order sought, or may grant an order to show cause why the order sought should not be made, or may allow the motion to be made on notice to the parties to be affected thereby. This is what the learned Chief Judge should have done but failed to do.

 

If he had refused to grant the application and made an order calling upon the Respondents to show cause why the orders should not be granted, or given them notice of the motion, the provisions of section 33(1) of the Constitution 1979 as to the obligation of hearing the party to be affected before coming to a definite and binding determination would have been complied with. The right of the Respondents to be heard before the making of the orders is clearly incontestable.

 

The effort of Chief G. 0. K. Ajayi was directed as showing that the crux of the dispute is the appointment of Directors. This is also an issue where the Respondents have a right to be heard. The question whether or not the order made is beneficial to the parties is not a necessary precondition to whether there has been a violation of the constitutional right to be heard before the making of a determination.

 

I think the Court of Appeal was right to hold that the order to serve unspecified papers on the Respondents made as part of the ex parte orders was tantamount to shutting the stable door after the horse had bolted away. The criticism of that observation by Chief Ajayi is unfair and wrong.

 

Chief G. 0. K. Ajayi S.A.N., referred to the judgment of the Court of Appeal that the affidavit of urgency contained no averments necessitating urgent hearing, and that the application ought to have been dismissed on that ground alone. He submitted that the value of an affidavit of urgency was to enable the court to exercise its discretion to hear the application. Once the application was heard the question of the value of the affidavit becomes of very little, if any moment it is spent.

 

The rationale for an ex parte application is the prevention of imminent irretrievable injury or damage to the right of one of the parties to the suit. Urgency is the necessary fulcrum on which the application rests. However, the basis of granting the application is also the existence of special circumstances and the urgency to protect the destruction of the right involved in the suit. Thus in the absence of a real urgency~ the rationale for an ex parte application cannot be justified.

 

In the instant case, the Court of Appeal held that no case of real urgency or any exceptional circumstances was made out in the averment in the affidavit. Rather what was shown was an urgency precipitated by the deliberate delay in bringing the application. I entirely agree with this view. Appellant became aware of the letter containing the directive from the 1st Respondent on the 14th April. He knew that the meeting of the 3rd Respondent was for the 25th. He still did not bring the application for the injunction to restrain the 1st Respondent until the 22nd April, 1987 leaving him with only two days. There is no doubt on the facts there was urgency in the application made on the 22nd to restrain threatened interference with the proceedings of a meeting fixed for the 25th April. This is undoubtedly a self induced urgency created deliberately by the applicant, unrelated to the realities of the antecedent events. This is not sufficient to support the application. It will be a dangerous precedent if the court will shut its eyes to the obvious manipulation of events by an applicant to construct a situation not intended by the principles sought to be invoked. Chief 6.0. K. Ajayi, S.A.N., criticised the Court of Appeal for holding that undertaking in damages was a necessary condition to an order for an ex parte injunction. He submitted that the Court of Appeal was wrong to have held that even if the ex parte order of injunction made by the learned Chief Judge was not set aside on other grounds, it would have been set aside for the failure of the appellant to give an undertaking as to damages. Where an appellate court comes to the conclusion that such a necessary undertaking had not been given, it is not a proper ground to set aside the order. He cited in support, Smith V. Day (1882) 22 Ch. D. at p.421; Graham V. Campbell (1877-1878) 7 Ch. D. 490 at p.494; Attorney-General V. Albany Hotel Coy (1896) 2 Ch. 696; Adamson V. Wilson (1864)10 L.T. 24; Chappel V. Davidson 44 E.R. 239.

 

It was finally submitted that the position which the Court of Appeal took in this case is the same as it did in University of Lagos V. Olanjyan F.C.A./L/5/81, dated 8/2/81 (Unreported) is erroneous.

 

The learned Senior Advocate seems to me to have misconceived both the statement of the law and the ratio of the cases he relied upon. The statement of the position was stated clearly in Vol.24 Halsbury's Laws of England (4th Ed.) para. 1072. It was there stated that:

 

An undertaking as to damages is the price which the person asking for an interlocutory injunction has to pay for it, and it ought to be required in every interlocutory order By the undertaking the party obtaining the order undertakes to abide by an order as to damages which the court may make in case it should afterwards be of opinion that the Defendant has, by reason of the order sustained any damages which such party ought to pay.

 

Chief Ajayi conceded that an undertaking as to damages ought to be given and was the rule, but argued that there were exceptions. The known exceptions do not seem to me relevant in this case.

 

The rationale for requiring an undertaking in damages to an order for interlocutory injunction is that a failure to do so leaves the order without a supporting consideration in the event of a discharge of the order. It is important particularly in an exparte order made without hearing the party to be affected thereby. It is also necessary in order to control any abuses of the provision. See Anton Piller KG. V. Manufacturing Processes (1976)1 All E.R. 779.

 

Chief Ajayi's final submission is that the Court of Appeal ought to be able to make the order for the giving of the undertaking in damages where this is necessary rather than set aside the order on the grounds of the failure to give undertaking.

 

It does not appear that Chief Ajayi has fully appreciated the full effect of the ex parte order which aims at protecting threatened irreparable injury. Thus where no such injury properly so called, has been protected, the result is possible damage to the person affected thereby against whom the order was made without a hearing. The only salutary order in the Court of Appeal in the circumstances where the court of first instance failed to extract an undertaking as to damages will be to discharge the order made.

 

For the reasons I have given in this judgment, and for the much fuller reasons given in the judgment of my learned brother, Nnaemeka-Agu, J S.C., this appeal fails and is hereby dismissed.

 

Appellant shall pay to the Respondents costs in this appeal assessed as follows:-

 

N500 in favour of the 1st Respondent. 

N500 in favour of the 4th-8th Respondents. There is no order as to costs to the 2nd and 3rd Respondents.

 

 

Judgment delivered

 by

Agbaje, J.S.C.:

 

 

 By a Writ of Summons dated 22nd April, 1987 the plain-tiff, N. A. B. Kotoye, claimed against the Defendants, the Central Bank of Nigeria and two othes the following reliefs among others:-

 

A Declaration that the Plaintiff is entitled to remain in office as a Director of the 3rd Defendant Bank until he is removed from office in accordance with the provisions of the Companies Act or the Articles of Association of the 3rd Defendant Bank.

An injunction restraining the 1st and 2nd Defendants from exercising any of their respective powers whether under the Banking Act or under the Companies Act in such a way as to give effect to or provide sanctions against the plaintiff for failure to give effect to any of the aforesaid directives of the 1st Defendant. An injunction restraining the 1st and 2nd Defendants from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank for the purposes of electing new Directors or effecting any of the Statutory purposes of electing new Directors or effecting any of the Statutory purposes for which Annual General Meetings are required to be held by the Companies Act 1968.

 

On the same day, i.e. 22nd April, 1987, the plaintiff applied by a motion ex parte against the said Defendants for the following reliefs:

 

(i)    restraining the 1st and 2nd Defendants, their servants and/or agents from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank until the final determination of this suit;

 

(ii)     for an order of injunction that until the determination of this suit the Defendants be restrained from appointing or recognising the appointment of any person or persons as Directors of the 3rd Defendant Company other than such of them as are or may be duly appointed in accordance with the provisions of the Articles of Association of the 3rd Defendant Bank.

 

Relevant to the motion ex parte or an injunction are the following averments of the plaintiff in his affidavit in support of the application. First in the affidavit marked '~Affidavit of Urgency" there are the following averments:

 

2.     That I am the Chairman of the Board of Directors of the 3rd Defendant Bank.

 

3.     That Notice summoning the Annual General Meeting of the 3rd Defendant Bank for the 25th of April, 1987 was issued on the 26th of March, 1987.

 

4.     That on the morning of Thursday the 16th of April, 1987 I returned home a little after 12 noon and was shown a letter addressed to me by the 1st Defendant herein directing that the Nigerian Directors of the 3rd Defendant Bank do meet urgently and to select its representatives on the Board of the Bank and forward a list thereof to the 1st Defendant within 10 days of the letter. The said letter is dated the 14th of April, 1987 and a copy of the same is already exhibited to the affidavit in support of the Notice filed herein.

 

5.     That the 1st Defendant has threatened in its aforesaid letter that if the list of new Directors is not supplied to it within 10 days of the said letter it would take appropriate measures against the 3rd Defendant under the Banking Act.

 

Apart from the Affidavit of Urgency there is also another affidavit in support of the application. In that affidavit the plaintiff alleged that he was the Chairman of the Board of Directors of the 3rd Defendant and he also went on to allege his shareholding in the said bank. The Motion exparte was heard and determined by Anyaegbunam, C.J. as such on the same day it was filed, i.e. 22nd April, 1987, and he made the following orders in respect of it:-

 

After hearing G. 0. K. Ajayi, S.A.N., and read all the papers filed with the motion paper, I rule as follows:

 

(i)     That 1st and 2nd Defendants/Respondents, their servants and agents should not in any way obstruct or frustrate the holding of the Annual General Meeting of 3rd Defendant/Respondent Bank whenever it is fixed.

 

(ii)     That when the said Annual General Meeting is held the ordinary affairs of the 3rd Defendant/Respondent Bank should be discussed.

 

(iii)    That no new Directors will be appointed, the old Directors should continue to function until the determination of this Application or the Court otherwise orders.

 

(iv)    I hereby also order that 1st, 2nd and 3rd Defendants/Respondents be served with all the motion papers. This will enable them file whatever paper they wish to. Adjourned Application to Monday, 27/4/87, at 1 p.m.

 

The Defendants appealed successfully against the order of Anyaegbunam, C.J. to the Court of Appeal, Lagos divison. That court coram Akpata, Awogu, Kalgo, JJ.C.A. set aside the orders of Anyaegbunam, C.J. in their place the following order was made:

 

The orders of Anyaegbunam made in F. H.G./L/35/~7 on April22, 1987 are hereby set aside and declared null and void. The suit is remitted to the Federal High Court for continuation before another Judge.

 

It is pertinent to add here that after the motion ex parte was heard and determined in the Federal High Court, Alhaji Ibrahim Dabo & 4 ors were added as Defendants to the case before the appeal in the Court of Appeal was taken.

 

The plaintiff being dissatisfied with the judgment of the Court of Appeal, has now appealed against it to this court.

 

Briefs of arguments were filed on all sides. It appears to me that the issues really for determination in this appeal has been concisely and correctly set down in the Brief of Argument filed on behalf of the 4th to the 8th Defendants, who as I have said were joined after the orders on the motion cx parte were made. The questions for determination were stated as follows:

 

(i)    Whether the High Court had jurisdiction to entertain the motion ex parte or, indeed, the claims relevant to that motion.

 

(ii)     If, but only if the answer to Question (i) is in the negative -

 

(a)    Whether the court below was correct in deciding that the Federal High Court ought not to have entertained the plaintiff's application.

 

(b)    Whether the court below was correct in saying that there were no exceptional circumstances to justify the grant of interlocutory injunctions by ex parte orders in this case and

 

(c)    Whether the court was correct in setting aside the order on the ground also that the plaintiff gave no undertaking as to damages in respect of the injunction.

 

I have stated earlier on in this judgment the claims of the plaintiff is so far as they are relevant to the issues about to be considered in this appeal. I have also stated the relevant facts too. It only remains to me to state the relevant rules of the Federal High Court which to me are as follows:

 

Order 20 dealing with the injunction generally and Order 33 dealing with interlocutory applications generally. As regards Order 20 I need only refer to Rules 1 and 5 therein -

 

1.     In any suit in which it is shown to the satisfaction of the court that any property which is in dispute in the suit is in danger of being wasted, damaged, or alienated by any party to the suit, it shall be lawful for the court to issue an injunction to such party, commanding him to refrain from doing the particular act complained of, or to give such other order for the purpose of staying and preventing him from wasting, damaging or alienating the property, as to the court may see fit, and in all cases in which it may appear to the court to be necessary for the preservation, or the better management or custody of any property which is in dispute in a suit, it shall be lawful for the court to appoint a receiver or manager of such property, arid if need be to remove the person in whose possession or custody the property may be from the possession or custody thereof, and to commit the same to the custody of such receiver or manager, and to grant to such receiver or manager all such powers for the management or the preservation and improvement of the property, and the collection of the rents and profits thereof, and the application and disposal of such rents and profits, as to the court may seem proper.

 

5.     The court may, in every case, before granting an injunction or order as aforesaid, direct such reasonable notice of the application for the same to be given to the opposite party as it may see fit.

 

With respect to Order 33, I need only refer for the purpose of this appeal to Rules 1,7,8, and 10:-

 

1.     Interlocutory applications may be made by motion at any stage of a cause or matter.

 

7.     Motions may be made either ex parte or after notice to the parties to be affected thereby.

 

8.     On a motion ex parte the party moving shall apply for either an immediate absolute order of the court, in the terms of the motion paper, on his own showing evidence, or an order on the other party to appear on a certain day and show cause why an order should not be made in terms of the motion paper.

 

10.    Where a motion is made ex parte, the court may refuse to make the order sought, or may grant an order to show cause why the order sought should not be made, or may allow the motion to be made on notice to the parties to be affected thereby."

 

In this connection I must reproduce the provision of Section 6(6)(a) which says:-

 

(6)     The judicial powers vested in accordance with the foregoing provisions of this Section -

 

(a)    shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law.

 

I am satisfied that the combined effect of the rule 1 of Order 20 and rules 1, 7, 8 and 10 of Order 33 of the Federal High Court Rules is that an application exparte for an injunction can be made to the Federal High Court. At this stage it may be necessary to consider the implication of an interlocutory injunction. The remedy by interlocutory injunction is usually to obtain the protection of the court by an interim order in terms of the injunction claimed by the writ or even when such an injunction is not claimed. Such an application for interlocutory injunction may be made on motion or by motion exparte and I have just said that the provisions of the rules I have referred to above would enable the plaintiff to apply for an interlocutory injunction by a motion ex parte. However, the principles governing the consideration of such an ex parte application are well settled.

 

Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion and such an injunction will be refused unless the plaintiff has an overwhelming case on the merit, on the ground that the delay in making the application has been insufficiently explained. [See Bates V. Lord Hajisham of St. Marylebone (1972)1 W.L.R. 1373; (972) 3 All E.R. 10191. Again an injunction will be granted exparte only in cases of emergency e.g. where property is in danger of being lost or destroyed. fSee Brand V. Mitson (1876) 24 W.R. 524; and see London & County Banking Co. V. Lewis (1882) 21 Ch. D 490; Evans V. Puleston (1880) W.N. 127; Fenwick v. E. London Ry (1875) L.R. 20 Eq, p.547)1 and even where the exparte injunction is granted it should generally be until a certain day usually the next motion day. (Ex p. Abrams (1884) 50 L.T. 184) by which time the other side should have been put on notice. An undertaking by the plaintiffs as to damages ought to be given on every interlocutory injunction though not where the order is in the nature of a final order. See Fenner V. Wilson (1893) 2 Ch. 656, and (except under special circumstances) effect ought to be given to it (per James L.J., Graham V. Campbell (1877-1878) 7 Ch. D 490, and see Mem by Jessel, M.R. in (1879) W.N. 74; Newcomen V. Coulson (1877-1878)7 Ch. D. 764; Seton. 509,511).

 

The point has been made that because of Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979, which provides for a right to fair hearing and, most presumably too because of the maxim audi alteram partem, it will be unconstitutional to entertain a motion ex parte for an injunction which may necessarily entail making an Order against another without hearing

him. It is because of this point that I have earlier on referred to Section 6(6)(a) of 1979 Constitution which reserves for all the courts established by the Constitution all inherent powers and sanctions of the court of law notwithstanding anything to the contrary in the Constitution. The granting of an ex parte application for an injunction in cases of urgency and emergency is one of the inherent powers of a court of law for the enhancement of the administration of justice. So for my part I see nothing unconstitutional in the taking of such an application within the safe guards surrounding it.

 

Now reverting to the application in hand, which is a motion ex parte for an interlocutory injunction, I am in complete agreement with the lower court that there was no real urgency for the application in the sense that there had been a true impossibility of giving notice of the motion to the other side. Again I am in agreement with the lower court that the learned trial Judge, Anyaegbunam, C.J., although he gave some indication of the need to give a hearing to the Defendants before concluding the hearing on the ex parte application before him, yet he had by then virtually made what would amount to absolute orders on the ex parte application. So there was virtually nothing left to be considered again when the ex parte application would come on again as a motion on notice for hearing.

 

I am satisfied too that the Court of Appeal was wrong in setting aside the orders of the trial Court in one breath and in another breath declaring them null and void. The proper order to make in the instant case was one setting aside the order simpliciter. And the consequential order to that should be one striking out the ex parte application as being incompetent.

 

It is for the above reasons and the fuller reasons given in the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C. which I have had the opportunity of reading in draft that I too will dismiss the appeal of the plaintiff and allow the cross appeal of the 4th-8th Defendants in this appeal. I abide by all the consequential orders in the lead judgment including the orders as to costs.

 

 

Judgment delivered 

by

Craig, J.S.C.:

 

 

I have read in advance the judgment of my learned brother, Nnaemeka-Agu, J.S.C., and I agree entirely with the views expressed and the conclusions reached. I too am of the view that the appeal should be dismissed.

 

The principal issue on this appeal is whether a Court can make an order affecting the interests of the party on an exparte Motion.

 

Generally speaking, the principle of natural justice dictates that the Court should hear both parties before making binding orders on either of them; see Rex V. Sussex Justices, ex parte McCarthy (1924)1 K.B. 256. This principle has now been entrenched in our Constitution (Sec. 33 of the 1979 Constitution) and has since then become the cornerstone of our case law. See Garba V. University of Maiduguri (1986)1 N.W.L.R. (Pt. 18) 550; Prof. D. Olatubosun v. N. I. S. E. R. (1983) 3 N.W.L.R. (Pt.80) 25; Busari Akande V. The State ex parte Governor of Oyo State & Anor. (1988) 3 N.W.L.R. (Pt.85) 681.

 

However, the Law permits that, in exceptional cases, the Court may issue an interim injunction, before hearing the other party. But such orders should be made only in cases of extreme urgency where for instance, there is imminent danger to the subject-matter of the suit, and it is impossible to give notice to the other side. Re: Anon (1876) W.N. 12.

 

In any case, such an order should be for a period of limited duration, say a few hours or for a day or two pending service of the Motion on the other side. This is in recognition of the legal rights of the other to be heard before any order affecting his interests is made.

 

After hearing both parties, the Court may either confirm the interim order or discharge it, or make such order or orders as the justice of the case demands.

 

It is important to note that beyond the strict limits stated above, it would be wrong to make orders on an ex parte application which would permanently affect the interest of a party who has not been heard.

 

In the instant appeal, the appellant had sued the Respondent in the Federal High Court, Lagos claiming a total of 9 reliefs. The three reliefs which are relevant to this appeal are for:

 

(ii)    A Declaration that the directive given by the 1st Defendant in the said letter that all shares acquired by the plaintiff in the 3rd Defendant since 1982 be divested to other Nigerians is ultra vires the 1st Defendant.

 

(viii) An injunction restraining the 1st and 2nd Defendants from exercising any of their respective powers where under the Banking Act or under the Companies Act in such a way as to give effect to or provide sanctions against the plaintiff for failure to give effect to any of the aforesaid directives of the 1st Defendant.

 

(ix)    An Injunction restraining the 1st and 2nd Defendants from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank for the purposes of electing new Directors or affecting any of the Statutory purposes for which Annual General Meetings are required to be held by the Companies Act 1968.

 

That Writ was filed on 22nd April, 1987, and on the same day, the appellant also filed an exparte Motion in whcih he asked for an order:

 

(i)     Restraining the 1st and 2nd Defendants, their servants and/or agents from in any way obstructing or frustrating the holding of the Annual General Meeting of the 3rd Defendant Bank until the final determination of this suit;

 

(ii)    for an order of injunction that until the determination of this suit the Defendants be restrained from appointing or recognising the appointment of the 3rd Defendant Company other than such of them as are or may be duly appointed in accordance with the provisions of the Articles of Association of the 3rd Defendant Bank. (Italics mine)

 

It would be seen that the two prayers which the appellant had asked for are substantially the same as claims (vii) and (ix) on his writ. The Motion was verified by an affidavit of 18 pages and attached to it, were the following voluminous documents:

 

(a)     The Writ of Summons

 

(b)     The proposed Statement of Claim (26 paragraphs)

 

(c)    Memorandum and Articles of Association of Societe-Generale Bank (Nig.) Ltd. (42 pages)

 

(d)    1st Defendant's letter dated 14/4/87 (10 pages)

 

Upon an affidavit of urgency filed on the same day (22/4/87), the learned Chief Judge, of the Federal High Court, heard the application and granted all the prayers. He made the following orders:

 

After hearing G. 0. K. Ajayi, S.A.N. and read all the papers filed with the motion paper, I rule as follows:

 

(i)     That 1st and 2nd Defendants/Respondents, their servants and agents should not in any way obstruct or frustrate the holding of the Annual General Meeting of 3rd Defendant/Respondent Bank whenever it is fixed.

 

(ii)     That when the said Annual General Meeting is held the ordinary affairs of the 3rd Defendant/Respondent Bank should be discussed.

 

(iii)   That no new Directors will be appointed, the old Directors should continue to function until the determination of this Application or the Court otherwise orders.

 

(iv)   I hereby also order that 1st, 2nd and 3rd Defendants/Respondents be served with all the motion papers. This will enable them file whatever papers they wish to. Adjourned Application to Monday, 27/4/87 at 1 p.m.

(SIGNED)

(F. 0. ANYAEGBUNAM O.F.R., C.O.N.)

CHIEF JUDGE.

 

The Respondents were dissatisfied with that order and they appealed to the lower Court. That Court (per Awogu J C. A.) held that the appellant's affidavit did not disclose any situation of urgency or other exceptional circumstances and was of the view that the prayers ought not to have been granted.

 

The orders were therefore set aside. There has been a further appeal to this Court and I have already indicated that I share the views contained in the judgment of my learned brother, Nnaemeka-Agu J.S.C. l only wish to make a few comments of my own.

 

From the voluminous papers attached to the appellant's cx parte Motion, the prayers asked for seemed to me to be of a highly contentious nature, and those papers should not have been granted without hearing both parties.

 

Secondly, I have already pointed out that the two prayers on the Motion were substantially the same as the claims in the Suit. It seems to me therefore that to grant the Motion might mean that the court had given judgment on those two claims based solely on mere affidavit evidence, and without serving the other parties to the suit. This is not right.

 

Lastly, in his two prayers, the appellant had asked the trial Court for an injunction:

 

(a)    restraining the Respondents from obstructing or frustrating the holding of an Autumn General Meeting "until the final determination of the suit

 

(d)   restraining the Defendants from appointing or recognising any persons as Directors of the 3rd Defendant/Bank L~nfli the determination of the suit.

 

The trial Court granted the prayers but it seems to me in terms wider than the appellant had asked for. The Court restrained the Respondent in the 1st prayer from obstructing.

 

the holding of the Annual General Meeting of the 3rd Defendant/Respondent Bank whenever Iris held.

 

That order is quite different from what has been asked. The phrase "whenever it is held" seems to me too wide for the type of interim order which should have been made on an ex parte Motion. If a time limit has to be fixed, it should be for the shortest possible period pending service on the Respondent. Furthermore, the learned Chief Judge made further orders of a rather far-reaching nature, which were capable of substantially affecting the legal rights of a party who was not before the Court and who has not been heard. The Chief Judge ordered that:

 

when the said Annual General Meeting is held the ordinary affairs of the 3rd Defendant/Respondent Bank should be discussed.

 

I think that this and the other orders were wrongly made and I agree that the Court of Appeal was right to set aside those orders.

 

For the fuller reasons set out in the lead judgment, with which I agree, I am of the view that the appeal fails and it is accordingly dismissed. I make the same orders as to costs as contained in the judgment of my learned brother, Nnaemeka-Agu, J.S.C.

 

Counsel

 

Chief G.K.O. Ajayi,S.A.N. 

With O. Ayaulaja, O.B. Ajayi and B. illiasu

........

For the Appellant

Professor A.B. Kasumu,S.A.N. 

With O. Onanuga and V. Moore

  ........

For the Respondent