TABLE
OF CONTENTS
Title page - - - - i
Approval page - - - - ii
Dedication - - - - iii
Acknowledgement - - - iv
Abstract - - - - v
Table of
Contents - - - vi
Table of Cases - - - ix
Table of
Statutes - - - xii
Abbreviations - - - xiv
CHAPTER
ONE: CONTRACTS OF EMPLOYMENT:
MEANING AND NATURE
1.1
Introduction - - - 1
1.2
Meaning and Nature of
Contract of Employment 1
1.2.1
Offer and Acceptance - - 2
1.2.2
Consideration - - - 3
1.2.3
Intention to Create
legal relation - - 4
1.2.4
Capacity - - - 4
1.3
Parties to a Contract
of Employment - - 6
1.3.1
Employer - - - 7
1.3.2
Employee - - - 8
1.4
Independent
Contractor - - 8
1.5
Why an Employee needs
Protection - - 9
1.6
Conclusion - - - 11
CHAPTER
TWO: TERMINATION OF CONTRACT OF
PUBLIC EMPLOYMENT
2.1
Introduction - - - 13
2.2
Under Public
Employment - - 13
2.3
Different methods of Termination of
Contract
of
Employment - - - 15
2.3.1
Termination by
Operation of Law - 16
2.3.2
Termination by Intention of Parties - 20
2.3.3
Summary Dismissal - - 27
2.3.4
Conclusion - - - 30
CHAPTER
THREE: WRONGFUL TERMINATION OF CONTRACT
OF PRIVATE EMPLOYMENT
3.1
Introduction - - - 33
3.2
Wrongful Termination of Contract of
Private
Employment - - - 34
3.2.1
Lack of Just Cause - - - 36
3.2.2
Wrong Procedure - - - 42
3.2.3
Lack of Proper Notice - - 46
3.2.4
Breach of the Rules
of Natural Justice - 51
3.2.5
Conclusion - - - 55
CHAPTER FOUR: REINSTATEMENT
4.1
Introduction - - 58
4.2
Reinstatement - - - 59
4.3
Conclusion - - 70
CHAPTER FIVE: OBSERVATIONS, SUGGESTIONS
AND CONCLUSION
5.1
Introduction - - - 72
5.2
Observation and
suggestions - - 73
5.3
Conclusion - - - 82
Bibliography - - - 86
TABLE
OF CASES
1.
AFOLABI v. POLYMERA IND.
NIG. LTD.
(1967)
N.SC.C. 158 - - - - - 2
2.
AFRIBANK v. NWANZE (1998) 6 NWLR
(pt
553), 283 - - - - - - - 39
3.
AKINLADE FALOMO v. LAGOS STATE
PUBLIC
SERVICE (COMMISSION - - - - - 32
4.
BANKOLE v. NBC (1968)2 All NLR 371- - - 18
5.
BRAVE v. CONDLER
(1895)2 QB 293 -- - - 10
6.
CALLIL v. CARBOLIC SMOKE BALL CO.
(1893)1
GB 256 - - - - - - - 1
7.
CHUKWUMAH v. S.P.D.C. (1993) 4 NWLR
pt
568, 512 - - - - - - - - 37
8.
COLEMAN v. MAGNET JOINERY LTD
(1975)
1 CR 46 - - - - - - - 34
9.
CONDOR v. BARON KNIGHTS LTD.
(1966)
1 WLR 87 - - - - - - - 11
10. COWEY v. LIBERIAN OPERATIONS LTD
(1966)
2 lloyd’S Rep. 45 - - - - - 8
11.
CURRIE v. MISA (1875)
L.R. 10 - - - - 2
12.
DE FRANCESCO v. BARNUM (1890) 45
CH.D.
430, 438 - - - - - - - 39
13.
DON EDWARD ADEJUMO v. UCH BOARD OF
MANAGEMENT (1997)2 UILR 145 - - - 13,22
14.
DR. BABATUNDE OWOLABI SANGUNUGA v.
AKINWU MOTOR & ANOR. (1980) decided on 7th March - 48
15.
EJEGI v. AGIP NIGERIA
LTD. (1968) 4 A.C. 99 - 39
16.
EWEROMI v. A.C.B.
(1978)4 A.C. 99 - - - 29
17.
GEORGE NICOL v. ELECTRICITY
CORPORATION
(1965)
LLR 261 - - - - - - - 13
18.
GOULD v. STAURT
(1896) A.C. 375 - - - 14
19.
GWAGOH v. BENDEL STATE
HOSPITAL
MANAGEMENT
BOARD. - - - - 45
20.
HALSBURY’S LAWS OF ENGLAND - - - 12
21.
HALL v. PARSON
(1978)1 CH.
14, 69 - - - 28
22.
HAROID FIELDING LTD. v. MANSI (1974)1
RLR
79 - - - - - - - - 4
23.
HART v. MILITARY GOVERNOR, RIVER STATE
NO.
17 OF 1984 - - - - - - - 26
24.
HEYMAN v. DROWINS LTD. (1942) 1 All
ER
337, 341 - - - - - - 33
25.
HILL v. C.A. PARSON AND CO. LTD.
(1971)3
ALL
ER 1347 (CA) - - - - - - 38
26.
INTERNATIONAL DRILLING COMPANY (NIG)
LTD.
v. AJIJALA (1976) 2 S.C. 115 P.9, 584 - - 48
27.
IREM v. OBUBRA DISTRICT COUNCIL
(1960)5
F.S.C.
24 - - - - - - - - 16
28.
JOSIAH LAOYE v. CIVIL SERVICE
COMMISSION
(1989)2
NNLR 652 - - - - - - 32
29.
KONDA v. GOVT. OF THE FEDERATION OF
MALAYA (1962) A.C. 322 - - - - 31
30.
LAW LONDON CHRONICLE LTD. (1959)2
ALL
E.R. 285 - - - - - - 23
31.
MCCLELLAND v. NORTHERN IRELAND
GENERAL HEALTH SERVICES BOARD (1957)1
WLR
594 (HL) - - - - - - - 37
32.
MOBIL OIL NIG. LTD. v. AKINFOSILE
(1969)
NMLR 217 - - - - - - 37,
48
33.
MOELLER v. MONNIER CONSTRUCTION
(NIG)
LTD. (1961) 1 ALL NLR 167 - - 16
34.
MORTON SUNDOUR FABRICS LTD. v. SHAW
(1966)2
KLRI 25 - - - - - - - 27
35.
N.A.L.G.O. v. BOLTON CORPORATION
(1943)
A.C.
166 - - - - - - - 5
36.
NDILL v. OKARA AND
SONS (1976) 11 S.C. 211- 26
37.
NOKES v. DONCASTER
AMALGAMENTED
COLLINERISES
LTD. (1946) A.C. 1014 - - 10
38.
NUNMINK v. COSTAIN DREDGING LTD.
(1960)
LLR 90 - - - - - - - 13
39.
O.A. MARTINS v. BRAITHWAITE AND CO.
LTD.
(1972) 2 CH. 72. 52 - - - - - 15
40.
ODIASE v. AUCHI POLYTECHNIC (1998)4
NWLR
pt. 546 - - - - - - 18
41.
OLANIYAN v. UNIVERSITY OF LAGOS
(1969)2
ALL
E.R. 216 - - - - - - 25,40
42.
OLANIYAN (SUPRA) 1985 - - - 26, 29, 35
43.
OLAREWAJU v. AFRIBANK (2001) 13
NWLR
pt. 731, 691 - - - - - 37
44.
OLATUNBOSUN v. MISER COUNCIL (1988)3
NMLR
pt. 80, 89, 49 - - - - - 31
45.
OSISANYA v. AFRIBANK (NIG) PLC
(2007)6
NWLR p.9 565 - - - - - 36
46.
OYEDELE v. L.U.T.H. (1990)6 NWLR
pt.
155, Pg. 199 - - - - - - - 45
47.
PEPPER v. WEBB
(1959)2 ER 285. - - 24
48.
PROVINCIAL TRANSPORT SERVICES v. STATE
INDUSTRIAL
COURT AIR 1963 SC 114, 116. - 38
49. ROAD TRANSPORT INDUSTRY TAINING
BOARD v. ONGARO (1943) A.C. 166 - - - 4
50.
ROSE AND FRANK v. CROMPTON (1923)2
K.B.
261 - - - - - - - - 2
51.
SINCLAIR v. NEIGHBOUR
(1966)3 ALL ER 988 - 13
52.
STANGE (SW) LTD. v.
MANN - - - - 8
53.
STOCCO v. MAJA
(1964)2 ALL NLR 35 - - 13
54.
TIMBERS v. PLYWOOD LTD. (1966) 1 ALL
NLR
87 - - - - - - - - 23
55.
VINE v. NATIONAL DREK LABOUR BOARD
(1956)1
ALL E.R. pg. 8. - - - - - 33
TABLE OF STATUTES
The
1999 Constitution of the Federal Republic of Nigeria:
S. 33 (1) - - - - - - 30,
35, 46
S. 36 (1) - - - - - - 30,
35, 46
The Nigerian
Labour Act Cap. L1 LFN 2004:
S. 2 - - - - - - - 9,
44
S. 7 - - - - - - - 43
S. 9 (7) - - - - - - - 9, 21
S. 10 (1) - - - - - - - 4
S. 11 (1) - - - - - - - 20,
30
S. 15 - - - - - - - 11
S. 19 - - - - - - - 3
S. 20 - - - - - - - 14,
15
S. 59 (8) - - - - - - - 3
S. 61 (3) - - - - - - - 3
S. 91 - - - - - - - 3
ABBREVIATIONS
1. N.W.L.R. - Nigerian
Weekly Law Report
2. N.M.L.R. - Nigeria Monthly Law Report
3. N.S.C.C. - Nigerian Supreme Court Cases
4. C.C.H.C.J. - Certified
Copies of High Court
Judgment
5. All N.L.R. - All Nigerian
Law Reports
6. F.S.C. - Federal Supreme Court
7. H.L. - House of Lord Report
8. A.C. - Appeal Cases
9. Ch. App. - Chancery
Appeal
10. Q.B.D. - Queens
Bench Division
11. K.B. - Kings Bench
12. L.T.R. - Law Times Report
13. Ch. D. - Chancery
Division
14. S.C. - Supreme Court
15. N.C.L.R. - Nigerian Constitution Law Report
16. W.N.L.R. - Western Nigerian Law Report
17. N.N.L.R. - Northern Nigerian Law Report
18. All E.R. - All England Report.
19. E.R. - English Report
20. Exch. - Exchanger
21. N.L.J. - Nigerian Law Journal
22. L.L.R. - Lagos Law Report.
23. W.L.R. - Weekly Law Report
24. U.I.L.R. - University of Ife
Law Report
25. E.N.L.R. - Eastern Nigerian Law Report
26. S. - Section
27. pp. - Page
CHAPTER ONE
CONTRACTS OF
EMPLOYMENT: MEANING AND NATURE
1.1 Introduction
A
contract of employment is an agreement between two or more persons relationship
established by contract, creating an obligation to do a particular thing in a
contract of employment.
1.2 Meaning and Nature
The nature of contract of employment
is the relationship between an employer and his employee comes into existence
as a result of a contract between them generally referred to a contract of
service, which means any agreement whether oral or written, expressed or
implied, where by one person agrees to employ another as a worker and that
other person agrees to serve the employer as a worker as contained in Labour
Act
Generally, the contract of employment
is an off-shoot of our general law of contract where the essential ingredients
of the contract must be found present before it’s enforceability.
1.2.1 Offer and Acceptance
In every contract of an employment,
there is a meeting of the minds of the parties before the enforceability of the
contract. That is to say, an offer must be made by one party called (offeror)
as in Callil v. Carbolic Smoke Ball Co.
and the acceptance of the offer by the other party called (offeree) as in
the case of Afolabi v. Polymera Ind. Nig. Ltd. This principle of offer and acceptance
entails freedom of both parties to offer and accept unconditionally the terms
of employment.
1.2.2 Consideration
In a contract of employment, where
there is an offer and acceptance by both parties to the contract of services,
there must be a consideration to furnished the contract, describing some
rights, interest, profit or benefit occurring to one party or some
fore-bearance detriment, loss or responsibility given, suffered or undertaking
by the other.
The above explanation was illustrated in the case of Currie v. Misa Therefore, consideration in the contract of
employment is the salary and other fringe benefits which an employee earns on
one part and services which an employer receives on the other part.
1.2.3 Intention to create Legal Relation
The relationship between an employer
and employee is established by contract. Where both parties agreed on the terms
of the contract of employment, creating a common intention of both parties to
enter into a legal obligation that is contained in the employment agreement Rose
and Frank v. Crompton
1.2.4 Capacity
The law is settled that parties to a
contract of employment must possess the capacity of contract as recognized by
law at common law. Certain categories of
persons namely; infants, mentally infirm and disordered person and drunkards in
certain circumstance are incapable of entering into a contract. This has been specified in our statute Nigeria
Labour Act 2004.
In the case of an infant, the law
forbids to engage a person (child) below the age of sixteen years from entering
into any contract of employment except that of an apprenticeship. But the Act provides in Section 19(1) of the Labour Act 2004
that a child under twelve years of age can be employed only by a member of his
family and even then, subject to his rights, agricultural, horticultural or
domestic work approved by the Minister of Labour as stated in Section 91(1) (a) Labour Act.
However, Section 59 of the
Act is an exception apparently to enable a youth receive his education in a
technical school. In respect of working on a ship in general, Section 61 (3) of the Act provides
that even when the non-adult is allowed to be so employed, he can work only on
a vessel in which only members of the same class are employed.
Under Section 59 of the Act, the Minister of Labour has power to
notify an employer in writing that the kind of work in which a young person is
employed is injurious to his health, immoral or otherwise unsuitable.
Finally on mentally infirm and
disordered person are persons who are insane, unsound minds incapable of being
conscious and rational thinking on the obligation of the terms of the contract
of employment.
1.3 Parties to a Contract of Employment
A contract of employment or services
is entered into and enforceable by the employers and the employees, which
automatically forms or constitute the major parties to a contract of employment
in Nigeria Labour Law.
A person who is in a contract of
employment with another cannot be transferred to another employer without his
consent. This is in conformity with the provision Section 10 (1) of the Act which provides as follows
“The transfer of any contract from one employer to
another shall be subject to the consent of the worker and the endorsement of
the transfer upon the contract by an authorised labour officer”.
1.3.1 Employer
An employer is the person by whom the
employee is or was employed. Rights can only be acquired against the one
employed. See the case of Harold
Fielding Ltd. v. Mansi
A person who exercises sufficient
control over employee may be regarded as being the employer for some purposes
as illustrated in the case of Road Transport Industry Training Board v.
Ongaro
1.3.2
Employee
According to Section 55 of the Trade Union Act 1974 defines an employee or
worker as “any member of the public service of the federation or of a state or
any individual (other than a member of any such public service) who has entered
into or works under a contract with an employer.
In N.A.L.G.O. v. Bolton Corporation,
the House of Lords decided that an employee or worker includes manual
labourers, clerks, apprentices, and persons in a contract personally to execute
work or labour.
1.4 Independent Contractor
An independent contractor is an
employee, employed by an employer to carry out a specific contract in the
contract of employment.
According to Salmond in Nigeria Law Reform Act 1961, Section 7 (4) (b),
that the liability of the independent contractor is not vicarious. A person is
not generally liable for the tort of his independent contractor or the servant
of such a contractor committed in the discharge of the contractual obligations.
1.5 Why an Employee Needs Protection?
A contract of employment like any
other contract comes into existence by an agreement between the parties (i.e.)
the employer and employee.
The agreement must be free and
voluntary neither party compels the other to accept any terms or conditions in
the agreement.
The vouched freedom and volunteerness
of the agreement raised the inequality of bargaining power between the two
parties. The number of people applying for work is too much for the number of
jobs the employer have. Because of these factors, there is a brake down in the
negotiation and the employer continues to negotiation until he gets what he
considers favourable terms and conditions for the employment.
Technically, he agrees to the terms
and conditions of the contract but in realization of this situation, Professor Adeogun made the following
observation in line with the legal framework of Industrial relations in Nigeria
thus:
The resumption of equality between two parties
tends to ignore other social and economic consideration which may make this
equality and its underlying freedom, fictitious and hollow. Indeed, the so-called bargaining power of the
individual worker is important in practice, especially in a country like
Nigeria where there are more workmen than the jobs available and where the
employer can choose freely whom to employ
1.6 Conclusion
In
conclusion of this chapter one, relating to contract of employment involving
employers and employees relationship where one party made an offer and the
other party accepts the offered, brought no doubt in negotiation where there is
inequality bargain.
Though it is a vouched freedom and
volunteerness of the agreement that places the employee as a beggar without
choice irrespective of the terms or conditions of the employment under which he
accepted the offered. This is as a result of insufficient of availabilities of
jobs in our society (Nigeria).
The situation in Nigeria today
as regard employment is such that it is difficult to get an employment and more
difficult for wrongfully dismissed employee to secure an alternative
employment. Therefore, since the
contracts of employment manifest from volunteers consent, which constitute a
contract of service between the parties, the law is then in support of the
party that is faithful to its bond under the contract and opposed the other
that acts contrary to the provisions or contractual terms of the employment.