Afro-Continental Nigeria Ltd v. Joseph Ayantuyi & Ors

I agree this appeal has no merit and I also dismiss it. I adopt for my decision the comprehensive reasoning contained in the judgment of my learned

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brother, Kutigi, J.S.C. and I also award the same costs.

I have the advantage before now of a preview of the lead judgment of my learned brother Kutigi, J.S.C. and I entirely agree with his reasoning and conclusion for dismissing this appeal.

The generally accepted principle of law is that except in recognised cases as stated in paragraph 1072 (Pgs 596-597) and paragraph 1074 (p. 597) of Halsbury” s Laws of England, 4th Edition, in an application (whether ex-parte or on notice) for an interim or interlocutory injunction, a beneficiary to such an order must provide an undertaking in damages. He is usually required to give an undertaking to pay all damages caused to the opposing party if the order so granted ought not to have been made. See Witshire Bacon v. Associated Cinemas (1938) 1 Ch. 268.

In Kotoye v. CBN. & 7 Ors. (1989) 1 NWLR (Pt. 98) 419 all the arguments revolve around the granting of an interlocutory order upon application made exparte.

The two prayers in the ex-parte application read thus:-
“1. 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.

2. Far an order of injunction that until the determination of this suit.

The defendants be retrained 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

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appointed in accordance with the provisions of the Articles of Association of the 3rd defendant Bank.” (Italics supplied by one)

The words italicised clearly show that although the application is ex-parte, the order being sought is interlocutory. This is further borne out and supported by the concluding part of the lead judgment of Nnaemeka-Agu, J.S.C. wherein he said:-
“The decision of the Court of Appeal which has been confirmed by this judgment is that the learned Chief Judge granted the motion for interlocutory injunction ex-parte 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 struck out. As the only application before the learned Chief Judge was one for an interlocutory injunction which as I have held he had wrongly granted ex – 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 make an order striking out the application ……..I hereby strike out the ex-parte application.”

The ratio in this case to my understanding is – a Where an application is made praying for an interlocutory order and same was granted ex -parte, the application is ab initio incompetent; the order so granted would be set aside and the application struck out.

The appeal is dismissed with N1,000.00 costs to the

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plaintiffs/respondents against the applicant/appellant only. The judgment of the Court of Appeal is hereby affirmed.

I have had the opportunity of the draft of the judgment just delivered by my learned brother Kutigi, J.S.C. in this appeal. I am in complete agreement with his reasoning and conclusion that the appeal be dismissal.

I however wish to add the following for the purpose of emphasis. The only issue which the appellant/applicant submitted to this court as arising for determination reads:
“Whether the Court of Appeal was right in rejecting the appellant’s contention that the Order for Injunction granted by the Ondo State High Court ought to have been set aside on the grounds that an undertaking as to damages had not been extracted from the plaintiffs when the Order for Injunction was made.”

Chief Ajayi, S.A.N., appearing for the appellant based this sole issue on the decision of this court in the case N.A.B. Kotoye v. Central Bank of Nigeria & 7 Ors. (1989) 1 NWLR (Pt. 98) 419. He quoted very extensively the pronouncements made in the judgment of the learned justices of this court who heard the appeal to the effect that:
” .. save in recognised exceptions, no order for an interlocutory or interim injunction could be made, ex-parte or on notice, save upon the condition that the appellant gives a satisfactory undertaking as to damages”.

Two issues were formulated for determination in Kotoye’s case supra, namely.

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“(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.”

This court held that in exceptional cases, the court may issue an interim injunction before hearing the other party; that such orders should be made on 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 and that such an order should be for a period of limited duration pending the service of the motion papers on the other side.

The court went further that 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 (1993) 2 Ch. 656 and Graham v. Campbell  (1877 – 1878) Ch. D. 490.

The appeal in Kotoye’s case supra was not dismissed because the trial Judge failed to extract an undertaking as to damages. The legal reason or ground for the decision of this court in that case is as stated by Nnaemeka-Agu, J.S.C at P.451 of the report:
“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 ex parte 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

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one for an interlocutory injunction which as I have held, he had wrongly granted ex-part, there is nothing left to be remitted to another Judge of the federal high Court for  determination.”

The consequence of failure to extract an undertaking as to damages in an order of interlocutory injunction did not call for determination in that case. The learned Justices of this court who heard the appeal did not lose sight of the fact that the motion for interlocutory injunction was granted ex-parte. The pronouncements concerned a clear case of an abuse of ex-parte injunction hence the following observation by the court: Nneameka-Agu, J.S.C. at page 451 said:
“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 if interlocutory injunction is that failure to give the undertaking leaves the order, without a quid pro quo ……….. this ought to be more so in respect of ex-parte orders in which the order is being made without the other side being heard ………… Above all, this court ought to take notice of the numerous cases of abuse of ex-parte injunction that have come up in recent times.”

Nnamani, J.S.C. of the blessed memory observed in part at p.457:
“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 therefore my view that the pronouncements made in the said judgment in so far as they went outside the order

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of injunction on an ex-parte application made without an undertaking as to damages are obiter dicta. The observations on an undertaking as to damages on an order of interlocutory injunction as opposed to ex-pane injunction did not arise in that case as to require a decision. Kotoye’s case remains valid in respect of orders of injunction made ex-parte without an undertaking as to damages.

The facts of Kotoye’s case are distinguishable from the facts in the appeal before us as well as those in Oduntan v. General Oil Ltd. (1995) 4 NWLR (Pt.387) 1, where the orders of injunction were made on interlocutory applications. In thi5 appeal also, there was notice filed by the plaintiffs/respondents in the court below of their intention to contend that the decision of the High Court be varied which contention that court acceded to.

Whatever views that I expressed in Oduntan’s case on undertaking as to damages on interlocutory injunctions must be limited to the facts and circumstances of that case. It did not overrule Kotoye’s case.

The exercise of the powers conferred upon the court below by section 16 of the Court of Appeal Act, 1976 is being challenged in this court. It provides:
“S.16 The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below

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is authorised to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”

I think that the powers conferred on the court below in the above statutory provision is wide enough to enable the said court vary the order of the learned trial Judge. It is an order which the trial court could have made. The variation of the order to include an undertaking as to damages is connected with the issue in controversy in the appeal before it and not alien to that issue. Since the court below and this court held that the application in Kotoye’s case was incompetent, there was no way either court could have exercised its powers under section 16 of the Court of Appeal Act or section 22 of the Supreme Court Act even if an application has been made to either court to invoke its said powers.

For the above reasons and the fuller reasons contained in the lead judgment, of my learned brother Kutigi, J.S.C., I too, dismiss the appeal and abide by the order as to costs contained in the said judgment.

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I agree with my learned brother, Kutigi, J.S.C. in the lead judgment, just read, that the ratio decided in the case of NAB. Kotoye v. Central Bank of Nigeria and 7 Ors. (1989) 1 NWLR (Pt.98) 419 is not an applicable authority to the single issue raised by the learned Senior advocate, Chief G.O.K. Ajayi, for the determination of this appeal. The main issue for the determination of this appeal is whether the Court of Appeal must automatically discharge or set aside every order of injunction granted by the high Court without the High Court having extracted an undertaking as to damages where such an undertaking is desirable or necessary.

It is plain from the undisputed facts of Kotoye’s case that the failure of the learned trial Judge to extract an undertaking in damages was not the basis for the Court of Appeal decision to set aside the ex-parte orders. The issue of giving an undertaking as to damages was merely an additional ground which the Court of Appeal agreed would also be a basis upon which the appeal could be dismissed. My learned brother, Nnaemeka-Agu, .J.S.C. wrote the lead judgment in Kotoye’s case and he explained the main issue in that appeal, thus;
“I wish to begin my consideration of this aspect of this appeal by pointing out that there is really no dispute that an application for injunction “until the final determination of the suit” is an application for an interlocutory, and not in 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

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deliberation on a number of well-settled issues upon which the right of an applicant to the grant of it 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?”

It is clear therefore that the dictum opined by this court in Kotoye’s case, viz, if the court of first instance failed to extract an undertaking as to damages, where it should, an appellate court ought normally to discharge the order of injunction on appeal, was given per incuriam.

Under section 16 of the Court of Appeal Act, 1976, the lower court has the power to make the order as it did by ordering the plaintiffs/respondents to give an undertaking as to damages so as to sustain the order of interlocutory injunction granted by the trial High Court.

For the above reasons and fuller reasons given in the lead judgment this appeal fails and it is dismissed. I abide by all the consequential orders made in the lead judgment including the award of costs.

I have had the opportunity of reading, in advance, the judgment just read by my learned brother, Kutigi, J.S.C., and I agree that this appeal fails. I too dismiss it.

In my view, the real or crucial issue in Kotoye’s case, supra upon which the appellant heavily relied, was

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whether an application for an interlocutory injunction can be heard and granted ex parte. This court answered the question raised by the issue in the negative. The aforesaid answer which was given by this court formed the basis of the decision, the ratio decidendi. The question of obtaining an undertaking to pay damages, which was canvassed at length, succeeded in beclouding the real or crucial issues mentioned above. The real or crucial basis for the decision in Kotoye’s case as expressed by Nnaemeka-Agu, J.S.C., at p. 451, was as follows:-
“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 Chief Judge granted the motion for interlocutory injunction ex parte 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.”

The major defect of the order in question was that it was made ex parte and not failure to obtain an undertaking. In the circumstance, Kotoye’s case is not an authority for the proposition that an order shall be set aside by reason only that the court that made it failed to obtain an undertaking as to payment of damages. It is for the foregoing reasons and the detailed reasons given in the lead judgment of my learned brother, Kutigi, J.S.C., that I agree that the appeal fails. I dismiss it and abide by the order for costs.

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I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Kutigi, J.S.C. and I agree with him that there is no merit in this appeal.

The facts that gave rise to this appeal have been fully set out in the lead judgment and no useful purpose will be served by my repeating them all over again.

It suffices to state that the single issue for determination as formulated by the appellant and adopted by the 1st to the 9th respondents is whether the Court of Appeal was right in rejecting the appellant’s contention that the order for injunction granted by the Ondo State High Court ought to have been set aside on the ground that an undertaking as to damages had not been extracted from the plaintiffs when the order for injunction was made. The 10th to the 12th respondents adopted the same issue but added a second one. This is whether the Court of Appeal was right in invoking the provisions of section 16 of the Court of Appeal Act to side-track the decision of this court in Kotoye v. Central Bank of Nigeria & Ors. (1989) 1 NWLR (P1.98) 419 to the alleged effect that where a trial court fails to extract an undertaking as to damages where it should, an appellate court ought normally to discharge such order of injunction on appeal.
When this appeal subsequently came up for hearing, this court in the interest of Justice raised suo motu yet another issue and invited learned counsel to file supplementary briefs to address the same. The issue was framed thus-
Whether in the light of the provisions of section 16 of the Court of Appeal Act, chapter 75 and the decision of this court in Oduntan v. General Oil Limited (1995) 4 NWLR (Pt.387) 1 at pages 13H-14A, the earlier decision in

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Kotoye v. C.B.N. (1989) 1 NWLR (Pt.98) 419 should be overruled”.

Supplementary briefs were duly filed by the parties in respect thereto.

At the hearing of the appeal before us on the 3rd day of October, 1995 learned counsel for the parties adopted their respective briefs and made oral submissions in amplification thereof.

Upon a careful consideration of all the matters urged upon us, it seems to me that a relevant issue for determination in this appeal is whether the Court of Appeal must automatically discharge or set aside each and every order of interlocutory or interim injunction granted by the High Court without such a High Court extracting an undertaking as to damages from the applicant where such an undertaking is desirable or necessary. It is the submission of learned Senior Advocate for the appellant that the answer to this issue is contained in the decision of this court in Kotoye v. Central Bank of Nigeria & Ors. (1989) 1 NWLR (Pt.98) 419 which involved an appeal in respect of an ex parte order of injunction granted by the Federal High Court, Lagos without extracting any undertaking as to damages from the applicants. The Court of Appeal in its judgment, had held inter alia that the ex parte order of injunction was liable to be set aside for failure by the applicant to give an undertaking as to damages which on the facts of the case appeared desirable.
The applicant appealed to this court and Nnaemeka-Agu, J.S.C. in dismissing the appeal stated inter alia as follows:-
“It is my view that a necessary corollary to the fact that an

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undertaking as to damages is the price that an applicant has to pay for the order of interlocutory injunction is that failure to give the undertaking leaves the order, without a Quid pro quo, and, so should be a ground for discharging the order. This ought to be more so in respect of ex-parte orders in which the order is being made without the other side being heard ………

It is, therefore, my view that save in recognised 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………….

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.”
He went on –
“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.”

He explained the rationale for the decision as follows:-
“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”.

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I think it is necessary to point out that Nnamani, J.S.C. in his concurring judgment in the same case observed as follows:-
“It is settled that an undertaking to pay damages is the price which the person asking for interlocutory injunction has to pay, and it ought to be required on every interlocutory order……….

The undertaking to pay damages applies whether the plaintiff has not been guilty of misrepresentation, suppression or other default in obtaining the injunction”.

It is therefore plain that the point which appeared made in Kotoye case is that an undertaking as to damages is the price that an applicant has to pay for the order of interlocutory injunction, that failure to give the undertaking leaves the order without a quid prop quo and is a ground for discharging the order by an appellate court and that this ought to be more so in respect of an ex parte order in which the order was made without the other side being heard. The next question must be whether the above pronouncements of this court per Nnaemeka-Agu. J.S.C. are mere Obiter dicta or constitute part of the rationes decidendi in the appeal.

It is indisputable that in the judgment of a court, the legal principle formulated by that court which is necessary in the determination of the issues raised in the case, that is to say, the binding part of the decision is its ratio decidendi as against the remaining parts of the judgment which merely constitute obiter dicta, that is to say, what is not necessary for the decision. See Saude v. Abdullahi  (1989) 4 NWLR (Pt.116) 387; Bamghoye v. University of Ilorin (1991) 8 NWLR (Pt.207) 1 at page 24 etc.

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An Obiter dictum of the Supreme Court is clearly not binding on this court or indeed on the lower courts, for obiter dicta, though they may have considerable weight are not rationes decidendi and are therefore not conclusive authority. See American International Insurance Co. v. Ceekay Traders Ltd. (1981) 5 S.C. 81 at page 110. Where however an obiter dictum in one case has been adopted and becomes a ratio decidendi in a latter case, such obiter dictum will be taken to have acquired the force of a ratio decidendi and would therefore become binding. See Victor Rossek and others v. African Continental Bank and Another (1993) 8 NWLR (Pt.312) 382.

The question whether a decision or pronouncement of this court is binding on the Court of Appeal depends on whether that decision or pronouncement is an obiter dictum or was made per incuriam. If the pronouncement is a mere obiter dictum then, of course, it cannot be binding, but if it was made per incuriam, it will nevertheless be binding on the Court of Appeal in accordance with the principle of stare decisis until the error in the judgment has been corrected. See too Victor Rossek and others v. African Continental Bank Ltd. & Ors. (1993) 8 NWLR (Pt.312) 382.

A close study of the facts in the Kotoye case clearly reveals that the application concerned a motion ex parte for an interim order of injunction as against the application in the present appeal which is in respect of a motion on notice for an interlocutory injunction, the applicable governing principles of which are not entirely the same in

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both cases. Secondly, it does also appear that the judgment of the Court of Appeal in the Kotoye case which came on appeal to this court mainly concerned the question of whether the application should have been made ex parte as no real urgency was disclosed in the affidavit in support thereof. In its judgment, the court below in allowing the appeal had no difficulty in holding inter alia that the application should not have been made ex parte as no real urgency was disclosed in the affidavit in support thereof to warrant an ex parte hearing. It further held-
(1) That the order of the Federal High Court 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
(2) That the said order amounted to a final order without hearing the respondents;
(3) That the trial court granted to the applicant more than what he asked for;
(4) That although an affidavit of urgency was filed, no case of urgency was made out to warrant an ex parte hearing; and
(5) That although the appeal was being allowed on the above grounds, the court, nonetheless would equally have allowed the appeal and set aside the interim order of injunction for failure by the applicant to give an undertaking as to damages.

It is this decision of the court below that came on appeal to this court. It is also the pronouncements of Nnaemeka-Agu and Nnamani, JJ.S.C. in the judgment of this court in

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the appeal in connection with the hypothetical observations of the Court of Appeal that it would additionally have allowed the appeal, all the same for failure by the applicant to give an undertaking as to damages as reflected in its ratio five above that are now being questioned in the present appeal.

It is necessary to point out that it does not appear to me established that the court below allowed the appeal before it in the Kotoye case because of the failure by the trial court to extract an undertaking as to damages from the applicant before issuing the interim order of injunction. What seems to me established from the decision of this court in that matter is that the court below allowed the appeal before it on other grounds observing however as an aside that it would have been prepared additionally to allow the appeal and set aside the order in question for failure by the applicant to given an undertaking as to damages before obtaining the order. It therefore seems to me clear that failure by the appellant to give an undertaking as to damages, although fully argued before the court, was not directly in issue in the appeal before this court.

Consequently, I am prepared to hold and it is my view that the observations in the judgment of this court in the Kotoye case on the necessity of an undertaking as to damages in applications for interlocutory injunction and the consequences of failure to extract such an undertaking are clear obiter dicta and cannot qualify as any part of the rationes decidendi in the case. I am therefore unable to accept that Kotoye case is an authority to the effect that in each and every order of an interlocutory or interim injunction, failure to extract an

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undertaking as to damages renders such an order incompetent and liable to be set aside.

I think I ought to stress that it cannot be the law that in all cases of interlocutory injunction, the extraction of an undertaking as to damages must be treated as a conditio sine qua non to the validity of an order. It is my view that each case must be treated on its particular facts as there are cases in which an undertaking as to damages is neither necessary nor arises and an order of interlocutory injunction in such cases without the extraction of an undertaking as to damages from the applicant cannot be regarded as invalid or incompetent.

The above situation is clearly recognised in the decision of this court in the Kotoye case under review where Nnaemeka-Agu, J.S.C. pronounced that save in recognised exceptions, no order for an interim or interlocutory injunction should be made ex parte or on notice save upon the condition that the applicant gives satisfactory undertaking as to damages.

There are therefore situations where the extraction of an undertaking as to damages may be unnecessary. The trial court, without doubt, has discretion on the question whether or not to order an undertaking as to damages but, like all judicial discretions, they must be exercised judicially and judiciously. It is not and cannot be the law that in each and every case of interlocutory or interim injunction, an undertaking as to damages must be extracted as a condition precedent to the validity of the order made.

This position of the law was made clearer by another

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decision of this court in Onyesoh v. Nnebedum (1992) 3 NWLR (Pt.229) 31S in which the decision in Kotoye case was explained. In that case, Nnaemeka-Agu, J.S.C. quite rightly explained as follows –
“I wish to point out straight away that although, as I stated in Kotoye v. C.B.N & Ors. (1989) 1 NWLR (Pt.98) 419 at P.450, an undertaking as to damages is the price which every applicant for an interlocutory injunction has to pay for it and that, save in recognized exceptions, it ought not to be granted if no undertaking has been given, it is putting the consequences of the failure to give the undertaking too high to say, as the learned Senior Advocate for the appellant has stated in his brief, that that rendered the order made incompetent….. The true position is that it renders the order liable to be set aside. Whether it will be set aside in any case will depend upon the facts of the particular case’ (Italics supplied for emphasis)

See too, Oduntan v. General Oil Ltd. (199S) 4 NWLR 1 where this court also held that it is not in every case of interim or interlocutory injunction that an undertaking as to damages ought to be extracted and that each case must be considered against its peculiar and particular facts and circumstances.

In the present case, however, it is not in dispute that the facts make the extraction of an undertaking as to damages necessary. The High Court granted the order without such an undertaking as to damages. However, before the court below, respondents’ notice urged the court to vary the order by extracting an undertaking as to

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damages from the applicant. This application was granted pursuant to the provisions of section 16 of the Court of Appeal Act, Cap. 75, Laws of the Federation which empower the court to make any orders necessary for determining the real question in controversy in an appeal, and to amend any error or defect in the record of appeal and to exercise full jurisdiction over the whole proceedings as if it had been instituted in the Court of Appeal as court of first instance.

The said section 16 of the Court of Appeal Act provides as follows –
“16. The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorised to make or grant, and may direct any necessary inquiries or accounts to be made, or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance, and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court or, in the case of an appeal from the court below in that courts appellate jurisdiction order

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the case to be re-heard by a court of competent jurisdiction”.

It is not in dispute that the High Court of Ondo State as a court of record has the power to extract an undertaking as to damages from an applicant in a motion for an interim or interlocutory injunction. In my view, the Court of Appeal in the present case was fully entitled in the interest of justice and upon proper application as was done in this case to impose an undertaking as to damages on the applicant as it did.

It ought to be pointed out that the attention of this court was regrettably not drawn to section 16 of the Court of Appeal Act in the Kotoye case. I entertain no doubt that the pronouncements under review in the Kotoye case, if they are understood to mean that where a court of first instance fails to extract an undertaking as to damages where it should, an appellate court ought normally to set aside or discharge the order of injunction on appeal must be regarded as having been made per incuriam in view of the provisions of section 16 of the Court of Appeal act aforementioned.

The conclusion I therefore reach is that Kotoye case did not decide that an appellate court, like an automation, must in all cases set aside or discharge every order of interim or interlocutory injunction made in a court of first instance without the extraction of an undertaking as to damages from the applicant by such a court.

It is also my view that the controversial pronouncements of this court in the Kotoye case being mere obiter dicta and not forming any part of the rationes decidendi in the

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appeal, the decision in the said Kotoye case need not be overruled.

It is for the above and the more detailed reasons contained in the lead judgment of my learned brother, Kutigi, J.S.C. that I too, dismiss this appeal as unmeritorious and affirm the decision of the Court of Appeal. I abide by the order for costs contained in the lead judgment.
Appeal dismissed.