A scenario where Party A sues Party B for an alleged contract seam
praying the Court to grant Exemplary damages without particularly pleading the same and leading evidence was beyond Party A’s mandate. This is because there is nothing to indicate that the conduct of Party B was actuated by malice or that they were propelled by ill will to humiliate, disgrace, or treat Party A badly.
Exemplary damages are monies paid by someone who committed an offence intended to prevent the same from committing similar offences in the future.
The basic principle of law is that he who asserts must prove the truth or correctness of his assertion applies to the proof of exemplary damages. However, the proof required is substantially different from the general stream of proof of damages, including proof of special damages, proof of general damages, and proof of aggravated damages. In Unilorin v. Akinola (2014) 12 NWLR (Pt. 1422) 435 @ 456 paras F-G, the Supreme Court held;
“Parties are bound by their pleadings and the case they present in those pleadings is the case to be considered by the Courts. Also in so far as pleadings do not contain admissions then the matters alleged must be proved in evidence”.
For a party to be entitled to exemplary damages, same must prove the adverse party’s willful act was malicious, violent, oppressive, fraudulent, wanton, or grossly reckless. In F.B.N. Plc v. A.G., Fed. (2018) 7 NWLR (Pt. 1617) 121 at 161, para. H, Per Augie J.S.C held;
“For a party to be entitled to exemplary damages, it is his duty to prove that the action of the respondent is outrageously reprehensible.
Exemplary damages are seldom granted as they serve as a punishment and to set a public example. The Court rewards the Plaintiff for the horrible nature of what he/she went through or suffered. Thus, there is no basis for the award of exemplary damages in the scenario because it is intended to punish and deter blame-worthy conduct and thereby prevent the occurrence of the same act in the future and a Court of law must be very cautious and careful in warding exemplary damages. See, Zenith Bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) 207.
The Law is trite that the circumstances in which exemplary damages may be awarded are: where there is an express authorization by (a) statute; in the case of oppressive, arbitrary, or unconstitutional action by the servants of (b) the government; where the Defendant’s conduct had been calculated by him to make a profit for himself, which might well exceed the (c) compensation payable to the Claimant. To succeed in a claim for exemplary damages, a Claimant must be able to prove any of these conditions. See, 7Up Bottling Co. Plc v. AbiolaSons Bottling Ltd. (2022) 2 NWLR (Pt. 750) 40.
Exemplary damages must be usually awarded to meet the end of punishment as stated by Per Aboki J.C.A in Think Ventures Ltd. v. Spice & Regler
Ltd (2021) 2 NWLR (Pt. 1759) 114 at 146 para F.
LEGAL TIP SERIES 84.
About the Author
Chinelo Audrey Ofoegbunam is a dynamic, ingenious, noble, and vibrant advocate. An innovative business advanced expert who has undertaken relevant training in law and advocacy, business administration, governance, arbitration, leadership, and a host of others.
She focuses on the effective implementation of evidenced result-oriented paths, cases, fulfilled clients, and exceeds expectations. She is a generous, dedicated, and compassionate person, and indeed an advocate for justice and peace.
She has received several awards, medals of excellence, and honorary Awards for humanitarian acts. She was the best graduating student from the Chartered Institute of Arbitration (United Kingdom) in 2019, which caused her direct appointment in the Federal High Court-Alternative Dispute Resolution Centre.
Audrey is a member of several organizations to wit:
The St Vincent de Paul Society, Executive member of the Women and Girl-Child Capabilities Enhancement and Empowerment Organization (WGCCEEO), Devatop Center for Africa Development (DCAD), Nigerian Red Cross Society (NRCS), French Club Le Clezio; Young African Leadership Institute; The Nigerian Bar Association where she currently serves in an executive position as the Treasurer of the NBA Abuja Branch; The African Bar Association, Commonwealth Lawyers Association, and International Bar Association; The Nigerian Institute of Chartered Arbitrators, Chartered Institute of Arbitrators (UK), Federacion Internacional de Abogadas(FIDA); Institute of Mediation and Conciliation; Chartered Institute of Taxation, Institute of Chartered Secretaries and Administrators in Nigeria; Institute of ADR Registrars; Registrar, The Colloquium; and of the Rotary International.
Audrey is a Young African Leadership Institute Fellow, a Paul Harris Fellow, a Benefactor, an ADR Neutral, Federal High Court-Alternative Dispute Resolution Centre, and an Author of the weekly Legal Tip Series.
She speaks English, Igbo, and French; And loves playing badminton, listening to music, researching and writing, traveling, and swimming.
