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WHERE OFFICER HOLDS HIS OFFICE “AT PLEASURE”

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Where an officer holds his office “at pleasure,” like was the case in Brown v. Dagenham Urban District Council (1929) 1 K.B. 737 at p.742 he can be dismissed at will in complete disregard of any purported contract whether verbal, or written or even under seal, because such contract will be incompatible with his status and therefore destitute of legal value. Thus Servants of the Crown, civil as well as military, except in special cases, where it is otherwise provided by law, hold their office only during the pleasure of the Crown and can be dismissed at any time in spite of a contract for a period of Service:- Dunn v. Reginam (1896)1 Q.B. 116. In fact the employing authority will lack the power, the vires to “enter into a contract” inconsistent with the wording of the Statute which gave it power in the public interest to remove the Servant at its pleasure:- Nicholson v. Whitstable Urban District Council (1925) 89 J. P. Newsp 480 at p.508. An officer holding his office at pleasure has also no right to be heard before he is removed because there need not be anything against him to warrant his removal. If there is nothing against him, no reason need be given for there is nothing to defend since he held his office durante bene placito: See Reg v. Dartington School Governors (1844) 6 Q.B.682.

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

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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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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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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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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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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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EQUAL SALARY FOR EQUAL WORK CANNOT BE APPLIED WHERE PAYMENT SOURCES ARE DIFFERENT

Para. 30: “Indeed, the principle of equality of salary, which implies the elimination of salary discrimination based on whatever criteria that may relate to the person of the salaried worker, does not apply to the diversity of the sources of remuneration. Here, the salaries proposed by the Defendants are to be paid, not from the funds of the Commonwealth, but from the budget of the Defendants themselves. This was what was established as a principle, by Court of Justice of the European Union, in the 17th September 2002 Judgment on Lawrence and Regent Office Care Ltd. & Others (Report 1-07325-C.C.E.E.) when it stated that “the principle of equal work, equal salary, does not apply when the observed disparities in remuneration cannot be attributed to a single source’.”

— Essien v. The Gambia (2007) – ECW/CCJ/JUD/05/07

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