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REMOVING SERVANT REGULATED BY STATUTE, MUST GIVE ETERNAL JUSTICE

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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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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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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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TERMINATION OF SERVICE – MASTER & SERVANT

The law regarding master and servant is not in doubt. There is also no doubt that the contract of master and servant is subject to both statutory and common law rules. By and large, the master can terminate the contract with his servant at any time and for any reason or for no reason at all. But if he does so in a manner not warranted by the particular contract under review, he must pay damages for breach.

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

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BAD FAITH IS INCONSEQUENTIAL IN TERMINATION OF CONTRACT OF EMPLOYMENT

Both in his pleadings and evidence the plaintiff concentrated so much on his allegations of bad faith, hatred, malice etc; but all these are of no consequence in determining whether or not his contract of employment was lawfully terminated by the defendant, considering that no reason was given for the termination.

– Ogundare, JSC. Chukwumah v. SPDC (1993)

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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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EMPLOYMENT GOVERNED BY STATUTE & THAT NOT GOVERNED BY STATUTE

In the case of BENIN ELECTRICITY DISTRIBUTION COMPANY PLC. v. ESEALUKA (2013) LPELR-20159(CA) where the court held that: “There is no doubt that there is a vast difference between an employment with statutory flavor in which case the terms of employment of that staff is governed by the statute creating that organization and any infraction of the terms of employment and discipline as guaranteed by the statute is bound to be declared null and void. That is illegal dismissal, where it occurs. In such situations the employee is restored to the position as if no disciplinary measures had been taken at all. See Dr. Taiwo Oloruntoba-Oju & Ors. v. Prof. Shuaib O. Abdul-Raheem & Ors. (2009) 13 NWLR Pt.1157 Pg.83; Bamgboye v. University of Ilorin (1999) 10 NWLR Pt.622 Pg.290. However, 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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