DAMAGES
The primary remedy for a tort is damages, the purpose of which is normally to
compensate the plaintiff for the harm he has suffered as a result of the defendant’s
tortious conduct.
Types of Damages
1. Compensatory damages
This is the normal kind of damages awarded. Its purpose is to compensate the
victim of a tort for the injury he has suffered, and it seeks to put him as far as
possible in the position he would have been in had the tort not been committed.
Anumba v. Shohet (1963) 2 All N.L.R. 183, at p. 186
2. Nominal damages
Nominal damages are awarded in those cases where the plaintiff establishes a
violation of his rights by the defendant, but he is unable to show that he suffered
any actual damage as a result of the defendant’s tort. Nominal damages are,
therefore, most often awarded for those torts which are actionable per se, such as
trespass and libel, and where the plaintiff can show no actual damage. Where
merely nominal damages are awarded the judge may, in his discretion, deprive
the plaintiff of his costs: McGregor. Damages para. 308.
Nominal damages may also be awarded where the fact of damage is proved, but
no evidence is given as to its extent, so that the assessment of compensatory
damages is virtually impossible.
3. Exemplary (or punitive) damages
This class of damages is intended not to compensate the plaintiff but rather “to
punish the defendant and to deter him from similar behaviour in the future.
Exemplary damages punitive and it is awarded where a party to the suit can show
or establish by evidence that the injury or loss he has suffered is due to the
malicious act of the party against whom he is claiming the exemplary damages. In
order to justify the award of exemplary damages it is not sufficient to show
merely that the defendant has committed a wrongful act. The conduct of the
defendant must be high-handed, insolent, vindictive or malicious showing a
contempt of the plaintiff’s right or disregard of every principle which actuates the
conduct of a gentleman. See J.M. Johnson vs. Mobil Oil Nig. Ltd. (1959) WNLR
page 128 at 134 and William vs. Daily Times (1990) 1 NWLR part 124 page 31.
It is now established that exemplary damages may be awarded only in the
following three circumstances:
(a) Where the plaintiff has suffered from oppressive, arbitrary or
unconstitutional action by a servant of the government. Rookes v. Barnard
(1964) A.C. 1129,at p. 1226, per Lor Devlin; Oguche v. Illiyasu (1971)
N.N.L.R. 157, at p. 167.
(b) Where 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
(c) Here statute so provides. See Drane v. Evangelou (1978) 1 WLR. 455.
4. Aggravated damages
These may be awarded where the defendant’s motives and conduct were such as
to aggravate the injury to the plaintiff. They are a species of compensatory
damages in that their purpose is to compensate the plaintiff for the injury to his
feelings of dignity and pride, e.g. in cases of insolent and high-handed trespass to
the land (Dosunmu v. Lagos City Country (1966) L.L.R. 63) or to the person.
Nwankwa v. Ajaebgu (1978) 2 L.R.N. 230
5. Contemptuous damages
This type of damages may be awarded where the plaintiff establishes his right, but
in the court’s opinion the action should never have been brought, e.g. because of
the triviality of the claim. Contemptuous damages are derisory e.g. 1k. Where
contemptuous damages are awarded, the plaintiff may be deprived of his costs.
Winfield an Jolowicz, op. cit. p. 592.
6. General and special damages
Both of these are species of compensatory damages. “General damages” is such a
damage as the law will presume to have resulted from the defendant’s tortious
conduct (e.g. the damage to reputation which is presumed in all cases of libel),
and which does not have to be expressly pleaded by the plaintiff. “Special
damages” is damage which the law does not presume, and which must therefore
be specifically pleaded and proved (e.g. the loss of employment caused by a
libel). In Bowen L.J’s words. Ratcliffe v. Evans (1892) 2 Q.B. 524, at p. 528.
Special damage is the particular damage (beyond the general damage) which
results from the particular circumstances of the case, and of the plaintiff’s claim
to be compensated, for which he ought to give warning in his pleadings in order
that there may be no surprise at the trial.
In Dumez (Nig.) Ltd. V. Ogboli, the Supreme Court emphasised that:
It is obvious that special damages must be strictly proved and (unlike general
damages, where, if the plaintiff established in principle his legal entitlement to
them, a trial judge must make his own individual assessment but act strictly on the
evidence before him which he accepts as establishing the amount to be awarded.
(1973) 3 U.I.L.R. 306, at p. 311; (1973) 3 S.C. 196, at pp. 204, 205.
Somewhat confusingly, in actions for personal injuries the terms “general” an
“special” damages are used in a secondary sense. There, general damages are
awarded for those items of damage which cannot be precisely calculated in money
terms, such as pain and suffering, loss of amenities, loss of future earnings and
loss of expectation of life; whilst special damages refer to those items of loss
which are capable of precise calculation, such as damage to clothing, medical
expenses already incurred and loss of earnings up to the date of judgment. See p.
256, post.