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DAMAGES WILL BE GRANTED WHERE REINSTATEMENT IS NOT APPROPRIATE

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Dictum

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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STATUTORY FLAVOUR EMPLOYMENT

An employment with statutory flavour is one governed by statute wherein the procedures for employment and dismissal of an employee are clearly spelt out. In such a situation, the employment cannot be terminated other than in the way and manner prescribed by that statute and any other manner of termination inconsistent with the statute is null and void and of no effect. The contract is determinable not by the parties, but only by statutory preconditions governing its determination.

– Muhammad JCA. Osumah v. EBS (2004)

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SERVICE OF EMPLOYMENT GOVERNED BY CONTRACT

The second class of cases will cover the ordinary master and servant relationship governed by a written contract not subject to any statutory restrictions or limitations. Here the duty of the court will be to construe and apply the terms, conditions and provisions of the contract.

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

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COURT WILL NOT IMPOSE EMPLOYEE ON EMPLOYER

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)

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NOTICE FOR DISMISSAL MUST BE READ INTO CONTRACT OF EMPLOYMENT

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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EMPLOYMENT REGULATED BY STATUTE

There may be cases where the body employing the servant is under some statutory or other restrictions as to the kind of contract or the grounds on which it can remove or dismiss him. In such contracts, if the servant is removed on grounds other than those specified in the contract or allowed by Statute, his removal will be held to be unjustified or ultra vires, null and void as the case may be:- see McChelland v. Northern Ireland General Health Service Board (1957) 1 W.L.R. 549.

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

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NATURE OF EMPLOYMENT BY STATUTE – WRONGFUL DISMISSAL – DAMAGES

In this respect the observation of the Supreme Court per Belgore JSC (as he then was) in Union Bank of Nigeria Ltd v Ogboh (1995) 2 NWLR (Pt.380) 467 at 664 is apt. It merits my respective quotation in extenso. Said the learned justice of the Supreme Court:- “Except in employment governed by statute wherein the procedure for employment and discipline (including dismissal) of an employee are clearly spelt out, any other employment outside the statute is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner prescribed by the statute and any other termination inconsistent with the relevant statute is null and void and of no effect examples are many especially with modern constitutional and statutory trends. (University of Lagos Act, 1962; Section 13 (2), 18 (e) and 61 under cases governed only by agreement of parties and not by statute, removal by way of termination of appointment or dismissal will be in the form agreed to; any other form connotes only wrongful termination or dismissal but not to declare such dismissal null and void. The only remedy is a claim for wrongful dismissal. This is based on the notion that no servant can be imposed by Court on an unwilling master even where the mater’s behaviour is wrong. For his wrongful act, he is only liable in damages and nothing more. Union Beverages Ltd v Owolabi (1988) 1 NWLR (Pt.68) 128.”

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