REMOVING SERVANT REGULATED BY STATUTE, MUST GIVE ETERNAL JUSTICE

WHERE TERMINATION CONTRAVENES STATUTORY PROVISION OR CONTRACT, PARTY WILL BE REINSTATED

It is clear from the facts which are not disputed in this appeal, that respondents unilaterally repudiated the contract with the appellants in the letter of termination dated 31st December, 1980. They were in my opinion trying to evade or avoid compliance with the conditions in para. 15 and the procedure in s.17(1). Hill v. CA. Parsons & Co. Ltd. (supra) will definitely apply to such a case as this one. Similarly each of the appellants refused to accept the repudiation, and in letter written the same day clearly so stated. – Exh. P. 16, P.19. In their claim they actually asked for a declaration that the contract was still in existence and that they were still occupying their respective positions in the 1st respondent University. I have no doubts in my mind that this is a situation where it is appropriate for the application of the rule of specific performance. The law has arrived at the stage where the principle should be adopted that the right to a job is analogous to right to property. Accordingly, where a man is entitled to a particular job, I cannot conceive of any juridical or logical reason against the view that where the termination of appointment is invalid and consequently alters nothing as reinstatement of the employee barring legal obstacles intervening between the period of purported dismissal and the date of judgment is the only just remedy. Normally damages are rarely adequate remedies for wrongful dismissal, and where the act relied upon for the dismissal is a contravention of an enabling statutory provision, I have no hesitation in restoring the judgment of the learned trial judge.

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

TWO INGREDIENTS TO ESTABLISH STATUTORY FLAVOUR CONTRACT

However, it should not be mistaken that once a company, corporation or government agency is set up by statute, all the employees thereof ipso facto became children of statute to the extent that their individual agreement of service with the employer automatically becomes contract with statutory flavour. Two of the vital ingredients that must coexist before a contract of employment may be said to import statutory flavour includes the following:- 1. The employer must be a body set up by statute. 2. The stabilizing statute must make express provision regulating the employment of the staff of the category of the employee concerned especially in matters of discipline. See in this regard Idoniboye-Obu v NNPC (2003) FWLR (Pt.146) 959 at 992; Salami v New Nigerian Newspaper Ltd (1999) 13 NWLR (Pt. 634) pg 315; CBN v Archibong (2001) FWLR (Pt.58) 1032 at 1056; Udemah v Nigerian Civil Corporation (1991) 13 NWLR (Pt.180) 477; Fakuade v O.A.U Complex Management Board (1993) 5 NWLR (Pt.291) 47.

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

NO EMPLOYMENT CAN BE INFERRED WITHOUT A LETTER OF EMPLOYMENT PRODUCED

In the case of Organ and Ors. v. Nigeria Liquefied Natural Gas Ltd., and Anor (2013) LPELR – 20942 (SC), the Supreme Court emphatically held as follows: “The letter of employment is the bedrock on which any of the appellants can lay claim to being employees of the respondent and without the production of such a document, no employment can be inferred. The Employees’ Handbook issued by 1st Respondent is not a substitute for the letter of employment”.

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.”

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.”

EMPLOYMENT: THERE WILL BE AN ACTION FOR REINSTATEMENT WHERE THERE IS UNILATERAL REPUDIATION

In Vitarelli v. Seaton 359 US. 335, the Supreme Court of the United States of America granted a declaration in the case of a civil servant even in a case involving State Security, because the proper procedure was not adopted. An analysis of the decided cases leads to the conclusions that an action for reinstatement is only possible where there is a unilateral repudiation of the contract of service by the Master (the Employer) which has not been accepted by the (employee) Servant. See Denmark Productions Ltd. v. Bascobol Productions Ltd. (1961) 3 All E.R. 583. In that situation the contract is still in existence having not been discharged by the acceptance of the repudiation. It is therefore not the same as where the contract has been discharged and the dismissed employee is entitled only to damages.

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