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TWO INGREDIENTS TO ESTABLISH STATUTORY FLAVOUR CONTRACT

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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

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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

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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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THE EMPLOYEE HAS BURDEN TO PLACE TERMS AND CONDITIONS THAT WAS BREACHED BY EMPLOYER

The law is settled that in the determination of employment rights, it is the employee who complains that his employment contract has been breached that has the burden to place before the Court the terms and conditions of his employment that provide for his rights and obligations, see Okoebor v Police Council [2003] 12 NWLR (Pt 834) 444, Okomu Oil Palm Co v Iserhienrhien [2001] 6 NWLR (Pt. 710) 660 at 673, Idoniboye-Obe v. NNPC [2003] 2 NWLR (Pt. 805) 589 at 630. In furtherance of this the Claimant has placed before the Court his offer of employment (exhibit C1), staff handbook (exhibit C2), letter of promotion (exhibit C3), suspension letter (exhibit C7) letter of invitation to disciplinary committee (exhibit C8), letter of termination (exhibit C9), statement of account (exhibit C10), CBN operational guidelines for delisting (exhibit C11), and other service documents.

— O.A. Obaseki-Osaghae, J. Ejiro Peter Amratefa v. Access Bank (NICN/ABJ/106/2022, November 2, 2023)

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WHEN IS AN EMPLOYMENT CLOTHED WITH STATUTORY FLAVOUR

In the case of Imoloame v West African Examination Council (1992) 9 NWLR (Pt.265) 303 at 317, Karibi- Whyte JSC dealing with when an employment is said to be clothed with statutory flavour said:- “…there is an employment with statutory flavour when the appointment and termination is governed by statutory provision. It is accepted that where the contract of service is governed by provision of statute or where the conditions of service are contained in regulations, derived from statutory provisions, they invest the employee with a legal status higher than the ordinary one of master and servant. They accordingly enjoy statutory flavour”. (See also Idoniboye-Obu v NNPC (2003) FWLR (Pt.146) 959 at 1004; Shitta-Bey v Federal Civil Service Commission (1981) 1 SC 40; Olaniyan v University of Lagos (2001) FWLR (Pt.56) 808; (1985) 2 NWLR (Pt.9) 599; Eperokun v University of Lagos (1986) 4 NWLR (Pt.24) 162; Professor Dupe Olatunbosun v Niser (supra); Dr. Bamgboye v University of Ilorin (1999) 10 NWLR (Pt.622) 290)

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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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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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