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

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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

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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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WRONGFUL TERMINATION OF EMPLOYMENT – WHAT WOULD HAVE EARNED IN THE PERIOD

In NITEL Plc. v. Akwa (2006) 2 NWLR (Pt.964)391 held that: “The law is settled, that where an employee’s appointment is terminated wrongfully or otherwise all he is entitled to is what he would have earned over the period of notice required to lawfully terminate this employment. The amount he is entitled to in his case is one month salary in lieu of notice and no more. See International Drilling Co. (Nig.) Ltd. v. Ajijala (1976) 2 SC 115; Akunforile v. Mobil (1969) NCLR 253; WNDC v. Abimbola (1966) 1 All NLR 159; Nigerian Produce Marketing Board v. Adewunmi (supra).” Per SANUSI, J.C.A (P. 42, paras. A-D).

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THREE CATEGORIES OF CONTRACT OF EMPLOYMENT

In C.B.N v Igwillo (2007) 4-5 SC 154 @ 172 lines 25-40 to be as follows: “The law is settled that there are now roughly three categories of contracts of employment viz: (a) those regarded as purely master and servant; those where a servant is said to hold office at the pleasure of the employer; and those where the employment is regulated or governed by statute, often referred to as having statutory flavour; See: Olaniyan Vs University of Lagos (1985) 2 NWLR (Pt.9) 599. An employment is said to have statutory flavour when the employment is protected by statute or laid down regulations made to govern the procedure for employment and discipline of an employee. Any other employment outside that category is governed by the terms under which the parties agree to be master and servant.”

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CONTRACT OF STATUTORY EMPLOYMENT – CANNOT BE REMOVED EASILY

It is to be observed that there is evidence before the court that the plaintiffs appointments were renewed for a three year second term on December 16, 2002 and was to last till 15th December, 2005. The only condition under which they could vacate office before that date is either if they resign their appointment or they are removed from office in accordance with the provisions of the Local Government Service Commission Law, 2000.

– Abdullahi JCA. Ekiti v. Ojo (2005)

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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”.

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DUTY OF CLAIMANT TO PROVE CONTRACT OF EMPLOYMENT

It is the well settled position of law that a contract of employment is the bedrock upon which all employment relationships are formed and an aggrieved employee bears the evidential burden to place before the court his contract of employment and show in what way the terms and conditions were breached by the defendant. See F.M.C. Ido-Ekiti & Ors. v Alabi (2011) LPELR 4148 (CA).

— Adewemimo J. Afariogun v FUTA (2020) – NICN/AK/41/2017

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