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DAMAGES WILL BE GRANTED WHERE REINSTATEMENT IS NOT APPROPRIATE

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Igbe v. Govenor Bendel State (1983) 1 SCLR page 73, where, as in this case, the chairman and members of the civil service commission of Bendel State were removed from their offices without compliance with the relevant statutory provisions, the Supreme Court awarded damages in lieu of reinstatement because reinstatement was not appropriate in the circumstances. Again, in contracts of employment with statutory flavour, the court would however grant damages as relief where there is evidence of situation and circumstances which makes it impossible to order reinstatement.

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ESTOPPED WHEN SALARY PAYMENT IS IN CONTINUANCE

Ondo State University v. Folayan (1994) 7 NWLR (Pt. 667) page 34 at page 61, the university had appointed Dr. Folayan for a probationary period of three years. Without extending the tenure of Dr. Folayan, they continued to use his services and pay him his salaries for three years. The Supreme Court held that the university was estopped from contending that the employment had come to an end at the end of the three years probationary period.

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NATURE OF A STATUTORY EMPLOYMENT – CONDITIONS

Statutory employment has been explained to mean an employment in which the procedure for employment and discipline are governed by statute. See Nigeria Institute of International Affairs v Mrs. T.O. Ayanfalu (2007) 2 NWLR (Pt. 1018) p. 246. In addition to the above, it is the position of the law that it is not all persons employed by a statutory body or government agency that is in a statutory flavored employment. Uwa JCA, explained this in Federal Medical Centre, Ido-Ekiti & Ors. v Isaac Olukayode Olajide (2011) LPELR-4150 (CA), when he held thus: “In agreement with the submissions of learned counsel to the 1st set of appellants to the effect that for an employment to be held to have statutory flavour the following conditions must be met: 1) The employer must be a body set up by statute. 2) The establishing statute must make express provisions regulating the employment of the staff of the category of the employee concerned. In a plethora of legal authorities in recent times, the Apex Court has given a clear distinction between employment with statutory flavour and other employment. In employments covered by statute, procedures for employment and discipline (including dismissal) of an employee are clearly spelt out, whereas any other employment outside the statute is governed by terms under which parties agreed to be master and servant.”

— Adewemimo J. Afariogun v FUTA (2020) – NICN/AK/41/2017

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CONTRACT OF SERVICE COMES TO AN END WHERE EMPLOYEE ACCEPTS REPUDIATION

The contract of service comes to an end after the unilateral repudiation only if the employee accepts the repudiation expressly or by implication. – See Gunton v. Richmond-upon-Thames London Borough Council (1981) AC. at p. 464 and Decro-Wall International S.A. v. Practitioners in Marketing Ltd. (1971) 1 WLR. at pp. 369-370 per Salmon L. J.

— A.G. Karibe-Whyte, JSC. Olaniyan & Ors. v. University of Lagos (1985) – SC.53/1985

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REMOVING SERVANT REGULATED BY STATUTE, MUST GIVE ETERNAL JUSTICE

When the employing authority wants to remove its servant on grounds permitted by Statute, then as Lord Campbell, C. J., observed in Exparte Ramshay (1852) 18 Q.B. 173 at p.190 “the principles of eternal justice” will dictate that the servant cannot be lawfully dismissed without first telling him what is alleged against him and hearing his defence or explanation. Even where the servant had, aliunde, personal knowledge of the offence or reason for his removal that was held to be no substitute for hearing the officer’s explanation:- Reg v. Smith (1844) 5 Q.B. 614.

— A. Oputa, JSC. Olaniyan & Ors. v. University of Lagos (1985) – SC.53/1985

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MOTIVE IRRELEVANT IN EMPLOYMENT DISMISSAL

The master can relieve the employee of his job with or without a reason. Motive for so doing is not relevant, see Geidam v. NEPA (2001) 2 NWLR (Pt. 696) 45. Be that as it may, if the determination is in breach of a term of the contract of employment, the court cannot, by its order, compel the employer to keep in its employment an employee whose service it no longer desires or requires. See Opuo v. NNPC (2000) 14 NWLR (Pt. 734) 552.

– NGWUTA, JCA. Osumah v. EBS (2004)

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REPUDIATION BY ONE PARTY DOES NOT TERMINATE THE CONTRACT EXCEPT WHERE ACCEPTED

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.

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