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NATURE OF EMPLOYMENT BY STATUTE – WRONGFUL DISMISSAL – DAMAGES

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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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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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EMPLOYMENT OF STATUTORY FLAVOUR – CREATION OF STATUTE

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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SERVANT WRONGFULLY TERMINATED HAS HIS REMEDY IN DAMAGES

In any event even where a servant is wrongfully terminated, the contract comes to an end. He has his remedy in damages.

– Karibe-Whyte, JSC. Chukwumah v. SPDC (1993)

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WRONGFUL TERMINATION VS UNLAWFUL TERMINATION

In wrongful termination or dismissal, the termination/dismissal is complete and the defendant is only liable in damages, while in unlawful termination/dismissal, there is no such termination or dismissal at all as it would be pronounced null, void. See Imoloame v WAEC (supra) at 305; Kabelmetal (Nig.) Ltd v Ativie (2001) FWLR (Pt.65) 662 at 674- ,675.

— M.U. Peter-Odili, JSC. Kwara Judicial Commission v Tolani (2019) – SC.63/2010

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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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SCOPE OF EMPLOYER’S DUTY TO EMPLOYEE INCLUDES TAKING REASONABLE CARE

The law is of common that the scope of an employer’s duty to its employee to take reasonable care for the safety of his workman and other employee in the course of their employment, this duty extends in particular to the safety of place of work, the plant and machinery and the method and conduct of work. Duty of care as an act or omission, has its origin on the concept of foreseeability as decided in the old case of Heaven v. Pencher (1983) 11 QBD 503 at 509 where Bret M.R. said “Whenever one person is by circumstance placed in such a position with regard to another, that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to the circumstances he would cause danger, injury to the person or property of the other, a duty arises to use ordinary care skill and avoid such danger.”

— O. Oyewumi, J. Aseidu v Japaul (2019) – NICN/AK/01/2016

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