WRONGFUL TERMINATION OF CONTRACTS OF EMPLOYMENT IN NIGERIA: A CASE FOR REINSTATEMENT OF PRIVATE EMPLOYEES

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Author

Presented To

Department of Law

WRONGFUL TERMINATION OF CONTRACTS OF EMPLOYMENT IN NIGERIA: A CASE FOR REINSTATEMENT OF PRIVATE EMPLOYEES

BY

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

Introduction " " " 1
Meaning and Nature of Contract of Employment 1
Offer and Acceptance " " 2
Consideration " " " 3
Intention to Create legal relation " " 4
Capacity " " " 4
Parties to a Contract of Employment " " 6
Employer " " " 7
Employee " " " 8
Independent Contractor " " 8
Why an Employee needs Protection " " 9
Conclusion " " " 11
CHAPTER TWO: TERMINATION OF CONTRACT OF
PUBLIC EMPLOYMENT

Introduction " " " 13
Under Public Employment " " 13
Different methods of Termination of Contract
of Employment " " " 15
Termination by Operation of Law " 16
Termination by Intention of Parties " 20
Summary Dismissal " " 27
Conclusion " " " 30

CHAPTER THREE: WRONGFUL TERMINATION OF CONTRACT OF PRIVATE EMPLOYMENT

Introduction " " " 33
Wrongful Termination of Contract of Private
Employment " " " 34
Lack of Just Cause " " " 36
Wrong Procedure " " " 42
Lack of Proper Notice " " 46
Breach of the Rules of Natural Justice " 51
Conclusion " " " 55
CHAPTER FOUR: REINSTATEMENT
Introduction " " 58
Reinstatement " " " 59
Conclusion " " 70
CHAPTER FIVE: OBSERVATIONS, SUGGESTIONS
AND CONCLUSION
Introduction " " " 72
Observation and suggestions " " 73
Conclusion " " " 82
Bibliography " " " 86

TABLE OF CASES

AFOLABI v. POLYMERA IND. NIG. LTD.
(1967) N.SC.C. 158 " " " " " 2
AFRIBANK v. NWANZE (1998) 6 NWLR
(pt 553), 283 " " " " " " " 39
AKINLADE FALOMO v. LAGOS STATE PUBLIC
SERVICE (COMMISSION " " " " " 32

BANKOLE v. NBC (1968)2 All NLR 371- " " 18
BRAVE v. CONDLER (1895)2 QB 293 ďż˝” " " 10
CALLIL v. CARBOLIC SMOKE BALL CO.
(1893)1 GB 256 " " " " " " " 1
CHUKWUMAH v. S.P.D.C. (1993) 4 NWLR
pt 568, 512 " " " " " " " " 37
COLEMAN v. MAGNET JOINERY LTD
(1975) 1 CR 46 " " " " " " " 34
CONDOR v. BARON KNIGHTS LTD.
(1966) 1 WLR 87 " " " " " " " 11
10. COWEY v. LIBERIAN OPERATIONS LTD
(1966) 2 lloyd’S Rep. 45 " " " " " 8
CURRIE v. MISA (1875) L.R. 10 " " " " 2
DE FRANCESCO v. BARNUM (1890) 45
CH.D. 430, 438 " " " " " " " 39
DON EDWARD ADEJUMO v. UCH BOARD OF MANAGEMENT (1997)2 UILR 145 " " " 13,22
DR. BABATUNDE OWOLABI SANGUNUGA v. AKINWU MOTOR & ANOR. (1980) decided on 7th March " 48

EJEGI v. AGIP NIGERIA LTD. (1968) 4 A.C. 99 " 39
EWEROMI v. A.C.B. (1978)4 A.C. 99 " " " 29
GEORGE NICOL v. ELECTRICITY CORPORATION
(1965) LLR 261 " " " " " " " 13
GOULD v. STAURT (1896) A.C. 375 " " " 14
GWAGOH v. BENDEL STATE HOSPITAL
MANAGEMENT BOARD. " " " " 45
HALSBURY’S LAWS OF ENGLAND " " " 12
HALL v. PARSON (1978)1 CH. 14, 69 " " " 28
HAROID FIELDING LTD. v. MANSI (1974)1
RLR 79 " " " " " " " " 4
HART v. MILITARY GOVERNOR, RIVER STATE
NO. 17 OF 1984 " " " " " " " 26
HEYMAN v. DROWINS LTD. (1942) 1 All
ER 337, 341 " " " " " " 33
HILL v. C.A. PARSON AND CO. LTD. (1971)3
ALL ER 1347 (CA) " " " " " " 38
INTERNATIONAL DRILLING COMPANY (NIG)
LTD. v. AJIJALA (1976) 2 S.C. 115 P.9, 584 " " 48
IREM v. OBUBRA DISTRICT COUNCIL (1960)5
F.S.C. 24 " " " " " " " " 16

JOSIAH LAOYE v. CIVIL SERVICE COMMISSION
(1989)2 NNLR 652 " " " " " " 32
KONDA v. GOVT. OF THE FEDERATION OF
MALAYA (1962) A.C. 322 " " " " 31
LAW LONDON CHRONICLE LTD. (1959)2
ALL E.R. 285 " " " " " " 23
MCCLELLAND v. NORTHERN IRELAND
GENERAL HEALTH SERVICES BOARD (1957)1
WLR 594 (HL) " " " " " " " 37
MOBIL OIL NIG. LTD. v. AKINFOSILE
(1969) NMLR 217 " " " " " " 37, 48
MOELLER v. MONNIER CONSTRUCTION
(NIG) LTD. (1961) 1 ALL NLR 167 " " 16
MORTON SUNDOUR FABRICS LTD. v. SHAW
(1966)2 KLRI 25 " " " " " " " 27
N.A.L.G.O. v. BOLTON CORPORATION (1943)
A.C. 166 " " " " " " " 5
NDILL v. OKARA AND SONS (1976) 11 S.C. 211- 26
NOKES v. DONCASTER AMALGAMENTED
COLLINERISES LTD. (1946) A.C. 1014 " " 10
NUNMINK v. COSTAIN DREDGING LTD.
(1960) LLR 90 " " " " " " " 13
O.A. MARTINS v. BRAITHWAITE AND CO. LTD.
(1972) 2 CH. 72. 52 " " " " " 15
ODIASE v. AUCHI POLYTECHNIC (1998)4
NWLR pt. 546 " " " " " " 18
OLANIYAN v. UNIVERSITY OF LAGOS (1969)2
ALL E.R. 216 " " " " " " 25,40
OLANIYAN (SUPRA) 1985 " " " 26, 29, 35
OLAREWAJU v. AFRIBANK (2001) 13
NWLR pt. 731, 691 " " " " " 37
OLATUNBOSUN v. MISER COUNCIL (1988)3
NMLR pt. 80, 89, 49 " " " " " 31
OSISANYA v. AFRIBANK (NIG) PLC
(2007)6 NWLR p.9 565 " " " " " 36
OYEDELE v. L.U.T.H. (1990)6 NWLR
pt. 155, Pg. 199 " " " " " " " 45
PEPPER v. WEBB (1959)2 ER 285. " " 24
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
ROSE AND FRANK v. CROMPTON (1923)2
K.B. 261 " " " " " " " " 2

SINCLAIR v NEIGHBOUR (1966)3 ALL ER 988 " 13
STANGE (SW) LTD v MANN " " " " 8
STOCCO v MAJA (1964)2 ALL NLR 35 " " 13
TIMBERS v PLYWOOD LTD (1966) 1 ALL
NLR 87 " " " " " " " " 23
VINE v NATIONAL DREK LABOUR BOARD
(1956)1 ALL ER 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 NWLR " Nigerian Weekly Law Report
2 NMLR " Nigeria Monthly Law Report
3 NSCC " Nigerian Supreme Court Cases
4 CCHCJ " Certified Copies of High Court
Judgment
5 All NLR " All Nigerian Law Reports
6 FSC " Federal Supreme Court
7 HL " House of Lord Report
8 AC " Appeal Cases
9 Ch App " Chancery Appeal
10 QBD " Queens Bench Division
11 KB " Kings Bench
12 LTR " Law Times Report
13 Ch D " Chancery Division
14 SC " Supreme Court
15 NCLR " Nigerian Constitution Law Report
16 WNLR " Western Nigerian Law Report
17 NNLR " Northern Nigerian Law Report
18 All ER " All England Report
19 ER " English Report
20 Exch " Exchanger
21 NLJ " Nigerian Law Journal
22 LLR " Lagos Law Report
23 WLR " Weekly Law Report
24 UILR " University of Ife Law Report
25 ENLR " Eastern Nigerian Law Report
26 S " Section
27 pp " Page

CHAPTER ONE

CONTRACTS OF EMPLOYMENT: MEANING AND NATURE

11 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
12 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
121 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
122 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

123 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
124 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
13 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"