By Lawrence Atsegbua
With respect to his Lordship, it is difficult to reconcile the above statement of Obaseki JSC with his statement that:
The debate on whether the modern legal system should recognize exemplary damages at all has been on and all in all the case for dispensing with them has been made out. The central argument is that they are anomalous in the civil sphere confusing the civil and criminal functions of the law.
If a case has been made out for dispensing with exemplary damages for the sole reason that they confuse the civil and criminal functions of the law, why then does Rookes v. Barnard remains good law in Nigeria? Or does his Lordship adopt Lord Devlin’s unsatisfactory explanation in which he attempts to explain exemplary damages as aggravated damages? This would seem to resolve the inconsistency which exists in Obaseki’s JSC judgment. Aniagolu JSC would only go as far as saying that the decision does not bind the courts in Nigeria. He said:
The Court of Appeal appears to have treated Rookes v. Barnard as having a binding force on the courts of this country. But that is not so. It only has a persuasive authority. There can be little doubt that since the abolition of the Privy Council from the hierarchy of our courts and the enactment of our Republican Constitution in 1963, English courts’ decisions are no more binding but have persuasive, even if essential, value.
The Supreme Court only went as far as to say that the case of Rookes v. Barnard does not bind the courts in Nigeria, but only has persuasive authority. Their Lordship however approved the award of exemplary damages in Eliochin v. Mbadiwe. The Supreme Court should have stated boldly that exemplary damages have no place in the jurisprudence of civil law.
The Privy Council in Australian Consolidated Press Uren  1 AC 590, held that the decision in Rookes v. Barnard does not apply Australia. The reason given by Lord Morris was that: “The reason given for uniformity of the Common law was less in matters as the one dealt with in Rookes v. Barnard.” The three categories given by the House of Lords in Rookes v. Barnard are not convincing. The first is where there is oppressive, arbitrary or unconstitutional action by servants of the government.
In Huckle v. Money (1763) 2, Wils 205, the court awarded £300 damages to the plaintiff whose house was searched by virtue of a nameless warrant. The court held that to “enter a man’s house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish inquisition.”
This class of case does not extend to oppressive action by private corporations or individuals and is justified in the case of servants of the Government because they are also the servants of the people and the use of their power must always be subordinate to their duty of service.
It is often argued that Lord Devlin’s second category in Rookes v. Barnard may serve as a makeshift remedy to prevent the unjust enrichment of the tortfeasor. However, the courts can prevent a defendant from making profit by requiring him to forfeit such profit instead of awarding exemplary damages. This was what the court did in the English case of Attorney General v. Blake  3 WLR 625. Lord Devlin’s third category (i.e. where statute authorizes exemplary damages) is objection-able.
Statutes should not make provision for the award of exemplary damages.
The reason is that this would import the possibility of punishment into civil litigation without the safeguards of the criminal process. If the law draws a marked distinction between a civil wrong and a crime, then the award of exemplary damages has no place in the jurisprudence of civil law. an award of £1,000 as exemplary damages for trespass.
In the above case, the court gave no guiding rules as to the measure of exemplary damages. The primary justification for the award of exemplary damages is that compensatory damages are insufficient to secure a stable and law abiding society. This argument is based on the deterrence theory.
However, this theory also supports the award of damages. Consequently, the deterrence theory cannot be a useful justification for the award of exemplary damages. All in all, there is a no case submission for the award of exemplary damages in civil law.
*Professor Lawrence Atsegbua , Dean, Faculty of Law, University of Benin.