By Lawrence Atsegbua

The 3rd plaintiff gave uncontradicted evidence that both herself and her husband lived in the premises and had their (1st plaintiff company) office in the premises with the consent of the defendant, that her husband was a Director of the 1st plaintiff company.

There was also uncontradicted evidence that the 1st plaintiff company took a sub–lease of the premises from the defendant. The 2nd and 3rd plaintiffs led evidence that while they were temporarily away from Nigeria, the defendant authorized the ejectment of the plaintiffs and removed the personal effects of 2nd and 3rd plaintiffs without their consent.

The trial judge  held that since the 2nd an d 3rd plaintiffs were not Directors of the 1st plaintiff company, they had no right to sue the defendant for trespass, and that the 1st plaintiff who on the evidence might have any issue to join with the defendant was not before  the court. The trial court dismissed the claim for these reasons.

On appeal to the Court of Appeal, that Court held that on the evidence before the trial court, the plaintiffs were in lawful occupation of the premise by virtue of the tenancy agreement between the 1st plaintiff and the defendant. The court held that being in lawful occupation, they cannot be ejected by the defendant before the expiry of the tenancy.

The Court of Appeal therefore held that the ejectment was wrongful and the defendant was a liable for damages. The Court of Appeal held that it could not award exemplary damages because there was nothing pleaded in the statement of claim which brings the case within Lord Devlin’s three categories.. On appeal to the Supreme Court it was held inter alia, (unanimously allowing the appeal) that:

(i) The primary object of an award of damages is to compensate the plaintiff for the harm done to him.

(ii)The secondary object of award of damages is to punish the defendant for his conduct in inflicting harm on a plaintiff. This secondary object can be achieved by awarding in addition to the normal compensatory damages, exemplary, punitive, vindictive or retributory damages.

(iii)Exemplary damages are awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment such as where it discloses malice, fraud, cruelty, insolence, flagrant disregard to the law and the like.

In so holding, the Supreme Court disapproved of the decision of the Court of Appeal which appeared to have treated Rookes v. Barnard as binding on the Courts in Nigeria. The Supreme Court further held that where a plaintiff claims exemplary damages and is unable to prove the same, he can be awarded nominal damages, where the liability of the defendant to damages has been established.

What then is the position in Nigeria? Obaseki JSC was in no doubt when he said:

The appellant’s case could well be dealt with under and comes within Lord Devlin’s second category. The decision of Rookes v. Barnard does not therefore bind the Court of Appeal in this country. It however has persuasive effect. It is therefore still good law in Nigeria that exemplary damages can be awarded by Nigerian courts when claimed and proved.