Eloichin (Nigeria) Ltd & Ors V Victor Ngozi Mbadiwe (1986)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C

This appeal has come from the Court of Appeal, Lagos. The Respondents were the plaintiffs before the High Court of Lagos in a suit, filed on 12th April 1976, in which they joined to claim a sum of N250, 000.00. “as exemplary damages for trespass committed by the said defendant on the premises, goods and household effects (sic) of the plaintiff (sic) at No.1 Goriola Street, Victoria Island, Lagos”

They also claimed an injunction. The original defendant was Chief Green Mbadiwe. Following his demise, Victor Ngozi Mbadiwe was substituted as the defendant. The Claim was finally settled in an amended statement of claim in which

(i) the 1st plaintiff claimed N100,000.00 exemplary damages for trespass to the premises;

(ii) the 2nd plaintiff claimed N50,000.00 exemplary damages for trespass to his goods; while

(iii) the 3rd plaintiff claimed N500,000.00 exemplary damages for trespass to her own goods.

It is necessary to emphasize, having regard to the arguments put forward in the course of the hearing of this appeal, that only the 1st plaintiff-a limited liability company-claimed in trespass to the premises, while the 2nd and 3rd plaintiffs claimed in trespass to goods.

The High Court of Lagos (as per C. Ademola Johnson, J., as he then was) dismissed the claims of the plaintiffs on the ground as finally held, that

“The plaintiffs therefore, having failed to establish before the Court the right to sue in trespass are bound to fail in this action”.

The plaintiffs appealed to the Court of Appeal which reversing some of the findings of the High Court on some of the facts and making some findings favourable to the plaintiffs, none-the-less dismissed the action on the ground that while the plaintiffs might, on the evidence be entitled to general damages if they had asked for it, they must fail on damages because they asked for exemplary damages only, having regard to. the decision of the House of Lords in England, and the principles therein laid down, in Rookes v. Barnard (1964) 1 All E.R. 367, on the question of exemplary damages.

The plaintiff/Appellants, not satisfied with the said decision of the Court of Appeal, have appealed to this Court on concisely worded seven grounds of appeal, all of which relate to the issue of damages.

“GROUNDS OF APPEAL

1. The Court of Appeal erred in law in basing their decision on points not canvassed then at the hearing of the appeal and without giving the appellants or their counsel an opportunity of being heard on those points.

PARTICULARS OF POINTS IN QUESTION

(i) Alleged failure of Appellants to establish grounds for the award of exemplary damages.

(ii) Alleged want of jurisdiction or discretion to award any damages where a claim is unsuccessfully made for the award of exemplary damages.

2. The Federal Court of Appeal erred in law in omitting to enter judgment for the plaintiffs for injunction restraining the trespass complained of having regard to their own finding that defendant had committed trespass.

IN THE ALTERNATIVE

3. (i) The Federal Court of Appeal misdirected themselves in law in holding that the appellants did not establish grounds for the award of exemplary damages when it is plain on the facts that the ejection of the appellants from the premises was done in an arbitrary and high handed manner.

(ii) The Federal Court of Appeal erred in law in regarding the cases of Rookes v. Barnard and Broome v. Cassel (which are not followed in other common law jurisdictions) as having laid down the law for Nigeria in regard to the grounds for the award of exemplary damages.

4. The Federal Court of Appeal erred in law in holding that on claim for exemplary damages they had no jurisdiction or discretion to award general damages.
5. Even if (which is not conceded) it was not permissible to award general damages where only exemplary damages was pleaded the justice of this case could have been met by an order remitting the case to the High Court for the proceedings to be amended so that there can be a fair trial on the issue of damages.
6. The Federal Court of Appeal erred in failing to direct that the judgement of the High Court be set aside and an order made for inquiry into damages.

PARTICULARS OF ERROR

It is obvious that in a case of this nature no proper computation of the amount of damages can (sic) be made until it is known whether the goods or part thereof are recoverable.

7. The Federal Court of Appeal erred in law and on the facts in failing to hold the defendants liable for damages for trespass to goods when the defendants admitted the trespass.”

Counsel for the Appellants, in his brief, has condensed the entire grounds of appeal into a narrow “issue for determination” (and the only issue in the appeal) to be

“whether a plaintiff who claims exemplary damages in circumstances in which that type of award cannot be made must have his action dismissed in limine”

having regard to the finding of the Court of Appeal that

“In the result, although we are of the view that a case for damages might have been made out for the 1st and 2nd or 3rd plaintiffs, we are, regretfully, unable to award any general damages because no case for the award has been made on the pleadings, the evidence and the law. In the result the appeal fails and is dismissed with cost fixed at N100.00” .

In other words where in this country a party has claimed exemplary damages and has not proved special circumstances entitling him to exemplary damages but has proved nominal or general damages, can he receive nominal or general damages or does the decision of the House of Lords in England in Rookes v. Barnard (1964) A. C. 1129 preclude the party from receiving nominal or general damages

Before going into this, it is perhaps necessary to state the short facts which give rise to these proceedings, as disclosed in evidence. The defendant did not give evidence. All the evidence there was, was given by the 3rd plaintiff-the wife of the 2nd plaintiff who did not appear throughout the proceedings. She swore that she lived at 55 Park Lane, London W.1 and also 21B Kofo Abayomi Road, Victoria Island. She said she was helping her husband, the 2nd plaintiff, and that she was a director of the company; her husband held 60% while she held 40% of the shares of the company. She enumerated her goods and those of her husband in the house which were removed by the defendant.

Arguing the appeal on the issue of damages only, Chief Williams submitted that the action was dismissed by the High Court. The Court of Appeal reversed some of the findings of the High Court but none the-less dismissed the action on grounds of not before the Court, saying they would dismiss the action on the principle of Rookes v. Barnard (1964) A. C. 1129 in which it was held that the lower court erred in law in granting exemplary damages. He referred also to Drane v. Evangelou (1978) 1 W.L.R. 455 at 457 where it was said that exemplary damages were awarded

“wherever it is necessary to teach a wrong doer that tort does not pay” .

He argued that Rookes v. Barnard which the Court of Appeal held was binding on it, prevented the said court from doing justice in this case. He conceded that the plaintiffs did not lead evidence on the pecuniary loss or the value of the goods removed, but contended that the defendant was liable in trespass and that the Court of Appeal should have found for the plaintiffs on the issue of liability which would attract nominal damages.

He further conceded that the 2nd and 3rd plantiffs were claiming for trespass to goods only and not trespass to the premises. The trial High Court Judge thought, he said, that 1st, 2nd and 3rd plaintiffs were claiming for trespass to the premises. He pointed out that the learned trial Judge accepted the claim for loss of the occupation of the premises by the company, that is, the 1st plaintiff. On the question whether the 2nd and 3rd plaintiffs were proved to be directors of the company, he submitted that the uncontradicted evidence of the 3rd plaintiff that she and her husband were directors was enough proof, without the production of the company’s books, and that nothing in Section 138 of the Companies Act stated to the contrary.

He argued that even if the plaintiff failed to prove that they were directors of the 1st plaintiff company, that fact could not justify the trespass complained of by the 1st plaintiff because that trespass was against the possession of the company. He drew attention to the uncontradicted evidence of the 3rd plaintiff that Chief Mbadiwe agreed that the 2nd and 3rd plaintiffs should stay in the house. He argued that the question whether the 2nd and 3rd plaintiffs were directors of the company were questions of facts which could be proved by oral evidence.

On the issue of trespass to goods, he submitted that the defendant admitted having the goods, or having removed the goods but said the plaintiffs should come and beg for them to have their goods back. He pointed out that the goods were in the premises demised to the 1st plaintiff. The landlord cannot just walk into the house and take out the goods whether the 2nd or 3rd plaintiffs were just friends of the 1st plaintiff or directors.

He referred to the landlord and tenant situation in Lagos State pointing out that nobody can eject a person in occupation of premises without serving on him the statutory notices as prescribed by Law. The Court of Appeal recognised that in its judgment. He referred to section 11 of the Rent Control Law and to Amos Brothers and Co. Ltd. v. British West African Corporation 14 W. A. C. A. 220 on section 19 which is on all fours with section 11 of Rent Control Law. Even where a tenancy has come to an end a landlord is not entitled to go into the premises and physically throw out the tenant but must give the statutory notices to the person in possession.

He cited TELIAT SULE v. NIGERIAN COTTON BOARD 1985 2 N. W. L. R pt 5 pg 17 decided on 7th June 1985. (See also: McPhail v. Persons Unknown (1973) 3 All E. R. 393-per Lord Denning.) He finally submitted that if his argument was accepted, by this Court, the proper order would be to send the case back to the High Court for assessment of damages on the principles laid down by James v. Mid-Motors Nig. Ltd. (1979) Vol. II. L. R. N. 187 at 207; (1978) 11 & 12 S. C. 31.

Chief Onyiuke for the Respondent, countered this argument and submitted that the defendant defended this action according to the pleadings; that the High Court decided the case in accordance with the pleadings, but unfortunately, the Court of Appeal decided the case without reference to the pleadings. Although he was supporting the conclusion of the Court of Appeal, he was supporting it on grounds other than the grounds relied upon by the Court of Appeal. This Court, he pointed out, has granted his application to that effect. He was not attacking the judgment of the Court of Appeal by pointing out that the judgment was without reference to the pleadings. He wanted to support the judgment of the Court of Appeal without reference to aggravated damages pointing to the African Continental Seaways Ltd. v. Nigeria Dredging, Road and General Works Ltd. (1977) 5 S. C. 235 at 243, 248, 249 and 250. The Court of Appeal decided on a totally different issue. He pointed out that the defendant stuck clearly to the pleadings and led evidence on it. As far as the 1st plaintiff was concerned it was a case of unlawful entry into the premises of which he was in lawful possession while for the 2nd and 3rd plaintiffs, it was a question of trespass to their goods. The real basis for the claims of the 2nd and 3rd plaintiffs was that they were directors of the company and were allocated the Eremises and were in possession thereof virtute officii. He conceded that if the 2nd plaintiff was a director of the company his wife (the 3rd plaintiff) would automatically be entitled to succeed. He contended that there must be evidence of licence by the 1st plaintiff to the 2nd plaintiff. This evidence of license was not to be given by the 3rd plaintiff but by the 1st or 2nd plaintiff. The 2nd plaintiff never gave evidence and never appeared. The Court of Appeal, he reiterated, was in error in law in deciding a case outside the pleadings. This was a matter of law and not a matter of fact.

On section 138 of the Companies Act, he submitted that the minutes of the proceedings of the directors of a company shall be evidence of the proceedings pointing to section 138 (2) and 138 (3) of the Companies Act. The proper evidence, he submitted, would be the production of the minutes. No other evidence would be accepted. He referred to the Registered Trustees of the Apostolic Church llesha v. Attorney General of Midwestern State of Nigeria (1972) 4 S. C. 150 at 154 to 155. Therefore, it was neither proved that 2nd and 3rd plaintiffs were shareholders nor directors.

On the issue of the exemplary damages, at no time did the 3rd plaintiff in her evidence identify any articles in a list of properties removed. He conceded that the law presumes nominal damages. On the question of the recovery of premises law, Chief Onyiuke submitted that there was no tenancy relationship between the 2nd and 3rd plaintiffs on the one hand and the defendant on the other and, therefore, the issue of section 11 of the Rent Control Law did not arise. In resolving this appeal one thing stands out clearly, namely, that the defendant admitted going into the premises and removing those goods kept in the premises. He did not get the order of Court in doing so-an act which must be unlawful unless it can find justification in a legitimate exercise of abatement of nuisance or on some other cause.

Chief Onyiuke has submitted both in his brief (p.4) and in oral argument before us that 2nd and 3rd plaintiffs could only succeed on the pleadings if they proved:

(a) that the 2nd plaintiff was a director of the first plaintiff/company;

(b) that the premises were allocated to him virtute officii and he was in lawful possession of the premises; and

(c) that the 1st plaintiff was entitled to allocate the premises to him.

With much respect to Chief Onyiuke, the above argument cannot be right because

(i) the 2nd and 3rd plaintiffs, although they alleged they were directors, were suing for trespass to goods only and not trespass to the premises;

(ii) the 2nd plaintiff, although an alleged director, pleaded he was there by licence of the 1st plaintiff since he said the 1st plaintiff allowed him to be there; and

(iii) paragraph 7 of the statement of defence said 2nd and 3rd plaintiffs occupied the premises “without the consent of the defendant and as trespassers”, but the 3rd plaintiff gave uncontradicted evidence in-chief that

“The defendant allowed us to live in the house” and under cross-examination of Mbanefo, of Counsel, that “Chief Mbadiwe agreed we should stay in the house”.

She was not re-examined.

Therefore, on the pleadings, the 2nd plaintiff could succeed in trespass to goods either by proving that he was a director of the company in lawful occupation of the premises by virtue thereof.

or

by virtue of the consent of Chief Green Mbadiwe. If he proved either, he was entitled and his wife (the 3rd plaintiff) by virtue of her being his wife and living with him, would also succeed in trespass to her goods.

The defendant, Chief Green Mbadiwe, did not give evidence. The only evidence led for the defence was that of the Assistant Registrar of Companies who testified that he had certified copies of documents in Eloichin (Nig.) Ltd.’s file and tendered document signed by the Registrar of Companies, Exhibit 4. Therefore, there was no rebuttal of the evidence of the 3rd plaintiff that the defendant allowed them to live in the house.

The trial High Court Judge held that there was significantly nothing in the evidence to connect the 2nd and 3rd plaintiffs with the 1st plaintiff and that the 2nd and 3rd plaintiffs having failed to establish their right to sue in trespass, were bound to fail. Again, this could not be right because the 2nd and 3rd plaintiffs were suing on trespass to goods and not on trespass to the premises.

On the question whether 2nd plaintiff was a director of the 1st plaintiff-company it cannot be said that it is only by the production of the Register that that fact can be proved. It can be proved by some other mode. Since, however, the defendant categorically challenged the 2nd plaintiff on that, stricter proof of that fact would be expected from the 2nd plaintiff. That strict proof cannot be discharged by the 3rd plaintiff-the wife alleging that the 2nd plaintiff was a director.

But, since the 2nd and 3rd plaintiffs were claiming, not in trespass to the premises but in trespass to goods only, all that proof of directorship was strictly unnecessary.

Even if they were merely visitors allowed by the 1st plaintiff to stay in the house, the defendant would not have the right to set upon their goods and commit the acts of trespass complained of, in respect of them.

On the possession of the 1st plaintiff-company, the Court of Appeal found that the company was rightfully in possession. The Court held at page 107 of the Record thus:

“The sub-lease, dated 27th June 1970 pleaded in paragraph 4 0f the Statement of defence, was not tendered in evidence and its terms are not known nor, apart from the correspondence between it and Appellant’s Agents, how the 1st Plaintiff came into occupation of the premises: But, as the learned Counsel for the Appellants said, there cannot be any doubt that the defendant knew of the occupation of the premises by the 1st Plaintiff Company, and that there was then a subsisting tenancy which would have expired on 23rd December 1976, and that defendant wanted the term of the lease reduced by a year, and as indicated in Exhibit 1, and that he was resiling from his previous demand of an ex gratia payment of N3,000 before executing the sub-lease of the premises. We note again, that the request was addressed to the 1st Plaintiff Company, not to Stagnetto, to whom according to the letter, the sub-lease was granted. We are of the view therefore, from the foregoing facts, that the 1st Plaintiff-Company was not a trespasser but occupied the premises with the acquiescence of the Defendant.”

The Court of Appeal gave the reason why the defendant went into the premises and committed the acts complained of It said:

“The 3rd Plaintiff gave evidence, which was not challenged under cross examination or contradicted by any other 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 1st Plaintiff Company. There was also her uncontradicted evidence that the 1st Plaintiff Company sub-leased the premises from the defendant. That while they were temporarily away from Nigeria, the defendant authorised the ejectment of the Plaintiffs and removed the personal effects of the 2nd and 3rd Plaintiffs, without their consent.

Exhibits 1, 2 and 3 show clearly that the intention of the defendant was to re-negotiate the sub-lease and because 1st Plaintiff Company refused or neglected to comply with his demand, Defendant ejected the Plaintiffs from the premises before the expiration of the sub-lease which was due on the 23rd December 1976.”

Dealing with the Rent Control Law of Lagos State the Court of Appeal had held that there could be no ejectment without the order of Court and that the three plaintiffs were not trespassers. This was what the Court said:

“Now, the Plaintiffs who were in lawful possession cannot be ejected by the defendant before the expiry of the tenancy. If he did, as he eventually did, his action was wrongful and liable in damages for trespass per se. Even if the tenancy has expired, and the Plaintiffs held over the premises, they were not for that reason trespassers on the premises. As Lord Denning, M.R. said in the case of McPhail v. Persons Unknown (1973) 3 All E.R. 393 p. 399.

‘When a tenancy has come to an end, the landlord is not entitled to take possession except by an order of Court, and on making the order, the Court has the power to fix the date for possession, where the defendant has no statutory right to remain.’

However, the Rent Control Law, Cap. 122, Laws of Lagos State, S. 13 gave statutory protection to a tenant from eviction except by an order of Court in proceedings regulated by the provisions of Recovery of Premises Law, Cap. 118 of the Laws of Lagos State. Edict 9/1976, referred to in ground 7, came into operation on 1st July 1976 and the cause of action arose in or about ‘March 1976 vide paragraph 7 of the Statement of Defence’. S. 7 of the former Law which applies to this case, provides that after the determination or expiry of the tenancy the landlord seeks to recover possession, he must cause statutory notice to be served on the tenant in the prescribed forms such notices must be of such length of time as provided in S. 8, depending on the terms or nature of the tenancy.

In the case of Amos Brothers & Co. Ltd. v. British West African Corporation 14 W. A. C. A. 220, the West African Court of Appeal had occasion to consider the question of ejection of tenant in relation to the provisions of sections 4, 12 and 19 of the Rent (Restriction) Ordinance which was later replaced by the Rent Control Law, Cap. 118 of the Laws of Lagos State.

Section 13 of the Rent Control Law provides (leaving the immaterial part) that

“A tenant of any premises to which this Act applies can only be ejected therefore in pursuance of an order of Court obtained under the provisions of the Recovery of Premises Law”.

The Laws of all civilized Nations have always frowned at self help if for no other reason than that they engender breaches of peace. It is no doubt annoying, and more often than not, frustrating for a landlord to watch helplessly his property in the hands of an intransigent tenant who is paying too little for his holding, or keeps the premises untidy, or is irregular in his payment of rents or is otherwise an unsuitable tenant for the property. The temptation is very strong for the landlord to simply walk into the property and retake immediate possession. But that is precisely what the law forbids. Amos Brothers and Co. Ltd. v. British West African Corporation Ltd. (1952) 14 W. A. CA. 220 dealt with sections 4, 12, 19 of the Increase of Rent (Restriction) Ordinance Cap. 93 and restricted ejectments to Orders by Court. In the same way, S. 13 of the Rent Control Law of Lagos State Cap. 122 Volume 6 Laws of the Lagos State of Nigeria 1973 enacts that:

“Subject to the provisions of section 12 above, a tenant of any premises to which this law applies can only be ejected there from in pursuance of an order of the Court obtained under the provisions of the Recovery of Premises Law”.

“Tenant” is defined therein, and means any person occupying any accommodation on payment of rent including a sub-tenant.

It has been decided that a sub-tenant is protected. Whether there is privity of contract or not; attornment of tenancy or not, a sub-tenant is, for the purposes of ejectment, a tenant and the provisions of the laws must be followed before ejecting him: DAWODU v. IJALE (1946) 12 W. A. C. A. 12; PAN AFRICAN Co. LTD. v. NATIONAL INSURANCE CORP. (NIG.) LTD. (1982) 9 S. C 1. This Court has recently decided that the statute will apply to a servant of a company occupying the company’s premises alloted to him by the company: Sule v. Nigerian Cotton Board S. C 113/ 1984 decided on 7/6/85 now reported in (1985) 2 N. W. L. R. (Part 5) p.17.

So much for the ejectment Laws. I now turn to the issue of damages which is the main plank in this appeal.

I have already stated the reason, which the Court of Appeal gave for refusing to award damages to the plaintiffs. It all turned on the decision of the House of Lords in Rookes v. Barnard (1964) A. C. 1129 in which Lord Devlin severely limited the categories in which exemplary damages could be awarded to:

(i) “oppressive, arbitrary and unconstitutional action by servants of the government”;

(ii) cases “in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.”; and

(iii) “any category in which exemplary damages are expressly authorized by statute.”

(ibid pp. 1226-1227).

Lord Devlin was quick to acknowledge that the idea of exemplary damages is peculiar to English Law. (ibid. p. 1221). This limitation imposed by Rookes v. Barnard, (supra) was later confirmed by the House in Broome v. Cassell & Co. Ltd. (1972) A.C. 1027.

The Court of Appeal appeared to have treated Rookes v. Barnard as having a binding force on the Courts of this Country. But that is not so. It does not bind the Courts of this country; it has only 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. Equally, Rookes v. Barnard has been held by the Privy Council not to apply to Australia: Australian Consolidated Press Ltd. v. Uren (1967) 3 W.L.R. 1338-not by reason that it was not correct for English law. Indeed, Lord Morris pointed out that the necessity for uniformity in the Common Law of different countries was less in matters such as the one dealt with in Rookes v. Barnard then, for example, in law merchant.

It has to be noted, in any case, that Rookes v. Barnard did not decide that where a plaintiff claims exemplary damages and is unable to prove the same, he cannot be awarded nominal damages, where the liability of the defendant to damages has been established. It does not seem to me right and just that a plaintiff’s claim should be dismissed in its entirety merely because he has claimed a larger sum than the Court considers he deserves. The Court of Appeal held that

“a case for damages might have been made out” but they could not award general damages

“because no case for the award has been made on the pleadings, the evidence and the law”.

This could not be an accurate ascertion. On the pleadings, admitted by the defence, the 2nd and 3rd plaintiffs averred that in their absence the defendant went into the premises and removed their goods without authority. In evidence, the 3rd plaintiff swore that that was so. In law, such forcible interference with their goods was a trespass entitling them to some damages. As Chief Onyiuke has conceded-in my view, rightly-the law presumes nominal damages. The plaintiffs clearly were entitled to an award of damages.

Following the procedure adopted by this Court in Ayodele James (Trading under the name and style of Ajileye & Sons) v. Mid-Motors Nigeria Co. Ltd. (1978) 11 & 12 S. C. 31 at 74) I would allow this appeal and hereby allow it. The judgments of the High Court and the Court of Appeal are hereby set aside and in their place judgment is hereby entered against the defendant on the issue of liability.

IT IS HEREBY FURTHER ORDERED that the case be remitted back to the High Court of Lagos, before the same Judge who heard the case, MR JUSTICE C. ADEMOLA JOHNSON, now Chief Judge of Lagos State, for a rehearing on the issue of damages only, in favour of the plaintiffs/appellants, and that the parties be at liberty to call all the evidence necessary for the assessment. N300.00 costs to the Appellants.

OBASEKI, J . S. C.-I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Aniagolu, J.S.C. I agree with him that the appeal be allowed for the reasons stated in the said judgment and the reasons hereinafter appearing. It is the importance and unusual character of the issues raised in this appeal that calls for my comments. The claim appears to be a simple and straightone. The 1st plaintiff/appellant claimed N100,000.00 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 to 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 issues formed on the pleadings came up for hearing before Candide Johnson J. (as he then was). At the conclusion of the hearing, he said and concluded:

“The plaintiffs’ witness put in Exhibit 4 to show the Directors of the first plaintiff company and in that Exhibit neither the name of the second nor third plaintiff appears nor is there any evidence from those whose names appear as Director of the Company that there is any connection between their company and the second-and third plaintiffs.

That being so, it is difficult for the court to determine by what right, if any, the second and third plaintiffs took an action in trespass against the defendant. The first plaintiff who, perhaps from the documents tendered in evidence, might have any issue to join with the defendant was never before the court in this case as I earlier realised.

The plaintiffs therefore, having failed to establish before the court the right to sue in trespass, are bound to fail in this action. The maxim is ubi jus ibi remedium. Since no right is therefore established in the plaintiffs, the action is liable to dismissal.”

The plaintiffs took the matter on appeal to the Court of Appeal on several grounds and succeeded in persuading that Court to reverse important findings of facts. That court held, inter alia:

“We are of the view, therefore, from the foregoing facts that the 1st plaintiff company was not a trespasser but occupied the premises with the acquiescence of the defendant. The 3rd plaintiff gave evidence which was not challenged under cross-examination or contradicted any other 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 subleased premises from the defendant. That while they were temporarily away from Nigeria, the defendant authorised the ejectment of the plaintiffs and removed the personal effects of 2nd and 3rd plaintiffs without their consent.

Now, the plaintiffs who were in lawful possession cannot be ejected by the defendant before the expiry of the tenancy. If he did, as he eventually did, his action was wrongful and liable in damages for trespass per se. Even if the tenancy had expired and the plaintiffs held over the premises, they were not for that reason trespassers on the premises. As Lord Denning, M.R. said in the case of McPhail v. Persons Unknown (1973) 3 All E.R. 393 p. 399:

‘When a tenancy has come to an end, the landlord is not entitled to take possession except by an order of court and on making the order, the court has the power to fix the date for possession, where the defendant has no statutory right to remain.’

However, the Rent Control Law Cap. 122 Laws of Lagos State S. 13 gave statutory protection to a tenant from eviction except by an order of court in a proceeding regulated by the Recovery of Premises Law Cap. 118 of the Laws of Lagos State.”

Despite the above findings and their conclusion that

“For the foregoing reasons, we are of the clear view that the three plaintiffs were not trespassers on the premises and that the defendant had no right to enter the premises and remove their goods therefrom. ”

The Court of Appeal held the appellants not entitled to exemplary damages. The grounds on which the Court of Appeal based its decision are that:

(1) the statement of claim has pleaded no facts upon which any of the three plaintiffs relied on for the award of exemplary damages;

(2) it is ‘not sufficient to plead exemplary damages, the facts on which the plaintiff relies must be clearly stated in the body of the statement of claim;

(3)there is nothing pleaded in the 11 paragraphs of the statement of claim which brings the case within the three limited categories propounded by Lord Devlin in Rookes v. Barnard (1964) A.C. 1129 pp. 1226-1227 and approved by the House of Lords in Broome v. Cassell &. Co. Ltd. (1972) A. C. 102.

The Court of Appeal felt that the appellants were entitled to some damages and lamented its inability to award damages in the following terms:

“we are regretfully unable to award any general damages because they were not claimed nor can exemplary damages be awarded because no case for the award has been made on the pleading, the evidence and the law. ”

The plaintiffs were still aggrieved and appealed to this Court. The issues for determination raised in their grounds of appeal and succinctly set out in the appellants’ brief are twofold and read:

“(1) whether a plaintiff who claims exemplary damages in circumstances in which that type of award cannot be made must have his action dismissed in limine.

(2) whether it is the law in Nigeria that award of exemplary damages cannot be made save only in the category of cases laid down by the House of Lords in Rookes v. Barnard (1964) A. C. 1129.”

The appellants, it should be noted, did not appeal against the findings of fact by the Court of Appeal and expressly in their brief, said:

“The appellants do not wish to question the reversal by the Court of Appeal of certain findings of fact made by the high Court.’

Surprisingly, the respondent has not appealed against the reversal by Court of Appeal of certain crucial findings of fact by the High Court. His counsel has by the notice filed, sought to obtain affirmation of the judgment on other grounds. He had an uphill task to find those other grounds in the judgment. In support of the grounds of appeal, learned counsel for the appellants, Chief F. R. A. Williams, S.A.N., submitted that the respondent did not raise the ground or contend that the Court of Appeal could not enter judgment for the plaintiffs because the only type of award claimed was exemplary damages. He submitted that not only was the ground not raised but that it was also not argued. It appears to me that this line of argument overlooks the important fact that the relief claimed from the Court of Appeal was for judgment for exemplary damages.

The law is settled that when a claim of trespass is established, i.e. facts establishing trespass to land or goods are proved and general damages are claimed, the court of trial proceeds to assess, quantify and award the appropriate amount. If special damages are not claimed in addition and proved strictly these will be awarded in addition. If special damages are not claimed or if claimed but are not proved strictly, they will not be awarded. Exemplary damages being in nature general damages together with punitive damages fixed high enough to be not only compensatory but also punitive, it is my opinion that where facts damages can be awarded and ought to be granted if the facts pleaded and proved establish a case of trespass. It was contended in the Court of Appeal and held by that Court that the decision in Rookes v. Barnard (1964) A.C. 1129 ought to be followed.

This then leads me to an examination of the principles enunciated in Rookes v. Barnard. The House of Lords in Rookes v. Barnard (1964) A. C. 1129 rejected exemplary damages or the award of exemplary damages except in three categories of cases as anomalous feature of English Law and reaffirmed that stand in Broome v. Cassell & Co. Ltd. (1972) 2 W.L.R. 647. In the later case, the House was not prepared to follow the Court of Appeal in its criticism of Rookes v. Barnard and held that

“we cannot depart from Rookes v. Barnard here. It was decided neither per incuriam nor ultra vires”

The primary object of an award of damages is to compensate the plaintiff for the harm done to him or a possible secondary object is to punish the defendant for his conduct in inflicting that harm. Such a secondary object can be achieved by awarding, in addition to the normal compensatory damages, damages which go by various names to wit; exemplary damages, punitive damages; vindictive damages, even retributory damages can come into play whenever the defendant’s conduct is sufficiently outrageous to merit punishment as where it discloses malice, fraud, cruelty, insolence, flagrant disregard of the law and the like.

The debate on whether the modern legal system should recognise 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.

The House of Lords in Rookes v. Barnard held that it is no longer permissible to award exemplary damages against a defendant except in a few exceptional cases, however outrageous his conduct may be. It is acknowledged that the new thinking does not have such drastic effect upon the existing case law as would at first sight appear, for as Lord Devlin pointed out, there is a double rationale behind such awards. He said:

“when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed.” See (1964) A.C. 1129, 1221.

The House considered that practically all the so-called exemplary damages cases could and should be explained as cases of aggravated damages-that is as cases of extra compensation to the plaintiff for the injury to his feelings and dignity. Lord Devlin hoped that the decision of the House would:

“remove from the law a source of confusion between aggravated and exemplary damages which has troubled learned commentators on the subject. Otherwise, it will not, I think, make much difference to the substance of the law or rob the law of the strength which it ought to have. Aggravated damages in this type of case can do most if not all of the work that could be done by exemplary damages. In so far as they do not, assaults and malicious injuries to property can generally be punished.” As Broomes. See also (1964) A.C. 1129, 1230.

The weighty submissions of counsel for the parties to this appeal deserve high commendation. It is observed that counsel for the appellant concentrated his criticism on the failure of the Court of Appeal to award damages of any sort even nominal damages after making findings of fact clearly establishing liability of the respondent in trespass to land and to goods. Learned counsel for the respondent while commending the dismissal of the appeal found little comfort in the reversal of the findings of fact made by the learned trial judge dismissing them as made in disregard of the pleadings. However, the failure of the respondent to cross-appeal disabled learned counsel from continuing his line of argument when the court drew attention to the absence of a cross-appeal.

The admission, by the defendant on the pleadings, of entry into the premises and removal of the goods found there without the permission of their owners gave added weight to the evidence of the 3rd plaintiff to the effect that the 2nd and 3rd plaintiffs were on the premises with the consent of the defendant; that the premises was let to the 1st plaintiff; and that the defendant had approved of the occupation by the 1st plaintiff. Counsel for the respondent conceded that on proof of trespass, the law presumes nominal general damages. The absence of any pleading and claim of special and general damages by the appellant was constantly brought to the attention of the court. The failure of the respondent to obtain an order of court before entering the premises and removing the goods did strengthen the case of the appellants and establishes the liability of respondent in trespass.

It is not the law of this country that a landlord has unbridled right to invade premises in the lawful occupation of a tenant and cart his goods and belongings away even for safe keeping, more so when the intention of the landlord is to recover possession after refusal by the tenant to pay higher rent.

Where the landlord brushes aside the necessity to obtain an order of court of possession and jettions the rule of law, enters the premises and takes possession, he has invaded and committed an infraction of the rights of the tenant and renders himself liable in trespass.

What did the respondent Green Mbadiwe intend by his action Certainly, he intended to eject the three plaintiffs and obtain possession by unlawful means probably to satisfy his desire for better terms of tenancy. Surely, our law must and does frown on such conduct. It is observed that English Law frowns on such conduct, see McPhail v. Persons Unknown (1973) 3 All E.R. 393 at p. 399, so does Nigerian Law, see Amos Brothers & Co. Ltd. v. British West African Corporation 14 W.A.C.A. 250.

The misconception that the appellants were in unlawful possession cannot help the respondent. In fact, there was no basis for such conception as the evidence shows that the respondent was in negotiation with the 1st appellant for better or more favourable conditions and terms of tenancy on the expiration of the sub-lease granted it which was due on the 23rd December, 1976. Resort to self help in such circumstances and even in any event against a tenant in lawful occupation does not come within the purview and provision of the law. Possession from a tenant in lawful occupation must only be obtained by the help of an order of court made after hearing the parties. See Dawodu v. Ijale (1946) 12 W.A.C.A. 12; Pan African Co. Ltd. v. National Insurance Corporation (Nig.) Ltd. (1982) 9 S. C 1; TELIAT SULE v. NIGERIAN COTTON BOARD 1985 2 N. W. L. R pt 5 pg 17.

Having settled the issue of liability in trespass, I now proceed to consider the issue of damages.

The decision in Rookes v. Barnard (1961) A.C. 1129 limited cases in which exemplary damages may be awarded to:

” (i) oppressive, arbitrary and unconstitutional action by servants of the government;

(ii) cases in which the defendant’s conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff; and

(iii) any category in which exemplary damages are expressly authorised by statute”

The appellants’ case could well be dealt with under and comes within the category of cases in (ii) above. However, Rookes v. Barnard was decided by the House of Lords in 1964. By then, the Privy Council which used to be the final Court of Appeal had ceased to be the final court of appeal for cases emanating from Nigeria in keeping with Nigeria’s independent status acquired in 1960 and re-emphasised in 1963 in the Nigerian Republican Constitution of the Federation. The decision on 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.

However, it was not proved in the instant appeal but liability for general damages for trespass was proved although not claimed specifically. Rookes v. Barnard did not decide that general damages cannot be awarded where exemplary damages are claimed and not proved. It is of interest to observe that Lord Devlin’s brief analysis of decided cases which were accepted as precedents in claims for exemplary damages revealed that it was not possible to say that there was a dividing line between them and aggravated damages. He found that they were in the main cases of aggravated damages. Australia has not accepted the decision in Rookes v. Barnard and the Privy Council has refused to apply it to Australia. See Australian Consolidated Press Ltd. v. Uren (1967) 3 W.L.R. 1338.

However” the case for acceptance is weighty. For the above reasons and the further reasons in the judgment of my learned brother, Aniagolu, J.S.C., I would and I hereby allow the appeal, set aside the judgment of the Court of Appeal on the question of damages and remit the case to the High Court, Candide Johnson, J. for rehearing on the issue of damages only. I am also in agreement with the other orders made by my learned brother, Aniagolu, J.S.C.

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SC.54/1981