LEGAL PRINCIPLE: APPELLATE PRACTICE – Power of Court of Appeal to vary orders and extract undertakings – Authority to Extract Undertaking as to Damages and Continue Injunction
PRINCIPLE STATEMENT
The Court of Appeal may extract an undertaking as to damages from the respondent and allow an injunction ordered by the trial court to continue, even where the trial court failed to extract such undertaking.
RATIO DECIDENDI (SOURCE)
Per Kutigi, JSC, in Afro-Continental Nigeria Ltd v. Ayantuyi & Ors (1995) NLC-3231990(SC) at pp. 3--4; Paras B--C.
"The Court of Appeal carefully considered the submissions of counsel and Uche Omo. J.C.A. (as he then was) concluded his leading judgment ... in these words- 'I have therefore come to the conclusion that whilst the learned trial Judge erred in failing to extract an undertaking as to damages when he made his order of injunction, this Court can obtain such an undertaking from the plaintiffs/respondents through their counsel, and allow the injunction ordered by the trial Judge to continue.'"
EXPLANATION / SCOPE
The Court of Appeal may cure the trial court’s error by extracting the required undertaking. The appellate court has power to vary orders and continue injunctions. The principle ensures that justice is not defeated by procedural omissions. The court may exercise this power in the interest of justice. The rule applies to all appellate courts. The respondent must give the undertaking. The court will consider the circumstances. The principle balances the need for procedural compliance with substantive justice. The appellate court may impose conditions.