It is settled law that the character of an appointment is determined by the legal character of the contract of employment. Where the contract of appointment is determinable by the agreement of the parties, there is no question of the contract having a statutory flavour. It is immaterial that the other contracting party is a creation of a statute.
– Muhammad JCA. Osumah v. EBS (2004)
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Ordinarily and consistent with the common law principle, the Court will not impose an employee on an employer.
– Karibe-Whyte, JSC. Chukwumah v. SPDC (1993)
The common law principle is that no specific performance could be awarded for wrongful dismissal: accordingly, where a contract is purported to have been determined, even if wrongfully, it ceases to exist.
– Karibe-Whyte, JSC. Chukwumah v. SPDC (1993)
In NITEL Plc. v. Akwa (2006) 2 NWLR (Pt.964)391 held that: “The law is settled, that where an employee’s appointment is terminated wrongfully or otherwise all he is entitled to is what he would have earned over the period of notice required to lawfully terminate this employment. The amount he is entitled to in his case is one month salary in lieu of notice and no more. See International Drilling Co. (Nig.) Ltd. v. Ajijala (1976) 2 SC 115; Akunforile v. Mobil (1969) NCLR 253; WNDC v. Abimbola (1966) 1 All NLR 159; Nigerian Produce Marketing Board v. Adewunmi (supra).” Per SANUSI, J.C.A (P. 42, paras. A-D).
In the case of Imoloame v West African Examination Council (1992) 9 NWLR (Pt.265) 303 at 317, Karibi- Whyte JSC dealing with when an employment is said to be clothed with statutory flavour said:- “…there is an employment with statutory flavour when the appointment and termination is governed by statutory provision. It is accepted that where the contract of service is governed by provision of statute or where the conditions of service are contained in regulations, derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour”. (See also Idoniboye-Obu v NNPC (2003) FWLR (Pt.146) 959 at 1004; Shitta-Bey v Federal Civil Service Commission (1981) 1 SC 40; Olaniyan v University of Lagos (2001) FWLR (Pt.56) 808; (1985) 2 NWLR (Pt.9) 599; Eperokun v University of Lagos (1986) 4 NWLR (Pt.24) 162; Professor Dupe Olatunbosun v Niser (supra); Dr. Bamgboye v University of Ilorin (1999) 10 NWLR (Pt.622) 290)
In Heyman v. Darwins Ltd. (1949) AC. 356, 361 Viscount Simon L.C. said, “But repudiation by one party standing alone does not terminate the contract. It takes two to end it, by repudiation on the one side, and acceptance of the repudiation on the other.” The proposition is founded on the elementary principles of the formation and discharge of contractual obligations. Where there is a unilateral repudiation of a contract, this is treated as an officer by the guilty part to the innocent party of the termination of the contract. It is the acceptance of the officer by the innocent party which acts as a discharge of the contract. – See Hochster H v. De La Tour (1853) 2 F& B. 678; Johnstone v. Milling (1886) 16 QBD 460. It is then open to the innocent party to sue only for damages since by his acceptance of the repudiation the contract comes to an end. Hence where the innocent party refuses to accept the repudiation the contract remains in existence.
The common law enjoins that even where the contract of employment does not stipulate a notice period, one that is reasonable must be read into the contract of employment. See Akumechiel v. BCC Ltd[1997] (Pt.484) 695 at 703 and Emuwa v. Consolidated Discounts Ltd [2000] LPELR-6871(CA);[2001] 2 NWLR (Pt.697)424. The Supreme Court in Olayinka Kusamotu v. Wemabod Estate Ltd [1976] LPELR-1720(SC); [1976] 9-10 SC (Reprint) 254 stated the law thus: The law is that, generally, the length of notice required for termination of contracts of employment depends on the intention of the parties as can or may be gathered from their contract and in the absence of any express provision, the courts will always imply a term that the employment may be terminated by a reasonable notice (from either of the parties); and even where (as clearly provided in clause 21(c) of “Exhibit “B” for persons still under probation) the employer has power to terminate the contract in his absolute discretion, the law enjoins the employer to give reasonable notice to the employee (see Re-African Association and Allen (1910) 1 KB 396).
— B.B. Kanyip, J. Awogu v TFG Real Estate (2018) – NICN/LA/262/2013 para. 60.
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