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EMPLOYMENT REGULATED BY STATUTE

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Dictum

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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DUTY OF CLAIMANT TO PROVE CONTRACT OF EMPLOYMENT

It is the well settled position of law that a contract of employment is the bedrock upon which all employment relationships are formed and an aggrieved employee bears the evidential burden to place before the court his contract of employment and show in what way the terms and conditions were breached by the defendant. See F.M.C. Ido-Ekiti & Ors. v Alabi (2011) LPELR 4148 (CA).

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

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WHERE TERMINATION IS WRONGFUL; ONLY REMEDY AVAILABLE IS SALARY IN LIEU

While I have earlier reckoned that the termination of the Claimant’s employment was not in itself wrongful, I must add for the sake of the said relief 7 that even where a termination is wrongful in a master servant employment, the remedy available is to the extent of what the employee would have earned as salary in lieu of notice.

— Z.M. Bashir, J. Gbaraka v Zenith Securities & Anor. (2020) – NICN/PHC/45/2018

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NO STATUTORY FLAVOUR; WHERE CONTRACT DETERMINED BY AGREEMENT BETWEEN PARTIES

Fakuade v. O.A.U.T.H.C.M.B. (1993) 5 NWLR (Pt. 291) 47 where Karibi-Whyte JSC stated at page 63: “The character of an appointment and status of the employer in respect thereof is determined by the legal character and the contract of the employee. Hence where the contract of appointment is determinable by the agreement of the parties, simpliciter, there is no question of the contract having a statutory flavour. The fact that the other contracting party is the creation of a statute did not make any difference.”

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WRONGFUL TERMINATION OF EMPLOYMENT – WHAT WOULD HAVE EARNED IN THE PERIOD

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).

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THREE CATEGORIES OF CONTRACT OF EMPLOYMENT

In C.B.N v Igwillo (2007) 4-5 SC 154 @ 172 lines 25-40 to be as follows: “The law is settled that there are now roughly three categories of contracts of employment viz: (a) those regarded as purely master and servant; those where a servant is said to hold office at the pleasure of the employer; and those where the employment is regulated or governed by statute, often referred to as having statutory flavour; See: Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt.9) 599. An employment is said to have statutory flavour when the employment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agree to be master and servant.”

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EMPLOYMENT NOT GOVERNED BY STATUTE – EMPLOYEE CAN ONLY CLAIM DAMAGES

In BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159 (CA) held that: “…where the relationship is not governed by statute and there is infraction of the terms of employment and dismissal by the employer, such infraction is merely wrongful and not null and void. The employee can only claim damages for breach of contract and cannot claim arrears of salary and reinstatement. See Eze v. Spring Bank (2011) 12 SC Pt.1 Pg.173; Joseph Ifeta v. SPDC Nig. Ltd. (2006) 8 NWLR Pt.983 Pg.585.” Per OGUNWUMIJU, J.C.A. (Pp.32-33, Paras.B-F).

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