By Lawrence Atsegbua

This article examines the Supreme Court’s approach to the award of exemplary damages in civil law. As will become evident, the Supreme Court appears to have sanctioned the award of exemplary damages in civil law in exceptional circumstances.

We argue that exemplary damages have no place in civil law and that the Supreme Court should have stated boldly that exemplary damages should not be awarded in civil law. Exemplary damages are damages on an increased scale over and above special or actual or ordinary damages, awarded in aggravated circumstances.

Exemplary damages

They are punitive in nature. General damages are damages which the law presumes to flow naturally from the wrong complained of. They are damages implied by law and need not be proved specially. While the law of evidence requires special and exemplary damages to be proved, general damages need not be proved.

Exemplary, punitive, vindictive or aggravated damages, are usually awarded whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where, for  instance, it discloses malice, fraud, cruelty,  insolence, or flagrant disregard of the law and the like.( See  There are certain instances, where the court would award exemplary damages i.e. damages to punish the defendant.

They are however to be awarded only in very restricted categories of cases. This was laid down in Rookes v. Barnard  [1964]  AC 1129. In this case the House of Lords held that the defendants were liable for intimidation but that they could not be liable to pay damages other than that which would compensate the plaintiff for his actual loss.

Lord Devlin with the concurrence of other Law Lords stated that exemplary damages would only be awarded where the defendant’s conduct is, oppressive, arbitrary or unconstitutional action by the servants of the Government, where the defendants action is calculated to make a profit and where exemplary damages is authorized by statute.

Before Rookes v. Barnard in 1964, courts in Nigeria awarded exemplary damages under the same circumstances as in England. After Rookes v. Barnard, Nigerian courts were in a dilemma as to whether to follow Rookes v. Barnard or not. In Ezeani v. Ejidike (1964) 1 All NLR 402, a Lagos High Court awarded exemplary damages without reference to the case of Rookes v. Barnard.

Also in Shugaba Abdul Rahman v. Minister of Internal Affairs  (1982) NCLR 502, the learned trial Judge awarded exemplary damages. In this case, his Lordship treated Rookes v. Barnard as binding on the courts in Nigeria. This was the position before the decision of the Supreme Court in Eliochin (Nigeria) Ltd v. Mbadiwe[1986] 1 NWLR, p. 47. In this case, the 1st plaintiff appellant claimed N100,000 exemplary damages for unlawful entry on the premises at No. 1 Goriola  Street, Victoria Island and an injunction restraining the defendant, his servants and agents from continuing such trespass.

The 2nd plaintiff claimed N50,000.00 exemplary damages  for trespass of his goods while the 3rd plaintiff also claimed N50,000.00 exemplary damages for trespass to her goods. The 2nd and 3rd plaintiffs also claimed an order of injunction to restrain the defendant, his servants and agents from continuing such trespass.

The evidence before the court was that 1st plaintiff company occupied the premises in question with the acquiescence of the defendant.

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.

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 [1969] 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 [2000] 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. Exemplary damages are punitive and retributive in nature and if a defendant’s conduct is sufficient to merit punishment he should be prosecuted in a criminal court of law.

One cannot however dispute the usefulness of civil remedies in criminal cases. Indeed the Penal Code gives wide powers to compensate. Such damages are no doubt compensatory, but exemplary damages are not. They are highly speculative and unreliable; they contradict all known rules governing the measure of damages, especially the rule in Hadley v. Baxendale (1854) 9 Ex. 341.

If civil remedies are to be genuinely constructive, the case for awarding exemplary damages in civil cases should be abandoned. In any criminal justice system, punishment is imposed to deter a further commission of the crime and to show society’s abhorrence of the crime (retribution).

Although exemplary damages enjoy a continuing vitality in common law jurisdictions, there is no justification for the award of exemplary damages in civil law. No cogent and satisfactory reason has been advanced for the grant of exemplary damages in civil law.

The Faulks Committee on the law of defamation in England, propose the abolition of exemplary damages in defamation cases. The deterrence role of punishment has no place in civil law. The primary function of civil remedies is to compensate the aggrieved plaintiff for his actual loss. It can be asserted with a good deal for authority that the basic principle of the law of damages in tort is compensation.

Smith & Hogan, Criminal Law, 10th Edition, have argued that it would be jurisprudentially unsatisfactory to say that the distinction between criminal and civil law lies in punishment. They further contend that what distinguishes a criminal from a civil sanction is the judgment of community condemnation which accompanies and justifies its imposition. They also find no objection that exemplary damages may be awarded in some civil cases; for this is merely ancillary to the main object and the occasions for their award which are now restricted.

These submissions might appear convincing, but civil and criminal law sanctions contain elements of community condemnation. This does not apply to criminal sanctions alone as the learned authors would want us to believe. Similarly, while it can be conceded that the award of exemplary damages is ancillary in civil cases, the basic objection still remains that it has no place in civil law, even though it is ancillary.

In Drane v. Evangelou (1978) 1 WLR 455, the Court of Appeal upheld 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.