CORAM

---

SAMUEL CHUKWUDUMEBI OSEJI     JUSTICE, COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI     JUSTICE, COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI     JUSTICE, COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI     JUSTICE, COURT OF APPEAL

---

PARTIES

---

FELIX EMEKA ADIBUAH APPELLANTS

---

MOBIL OIL NIGERIA PLC RESPONDENTS

---

AREA(S) OF LAW

---

Nil

 

---

SUMMARY OF FACTS

The Appellant’s employment as a Senior Security Coordinator in the employment of the Respondent was terminated by a letter dated 28th March 1989. Subsequently, another letter dated 29th March, 1989 stated the reason for the termination to be redundancy. The Appellant instituted an action against the Respondent at the Lagos State High Court claiming a declaration that the purported termination of the Plaintiff’s appointment on grounds of redundancy is illegal, irregular and a breach of the provisions of the Mobil Work Agreement and the Labour Act 1999 and is therefore null and void, a declaration that the Plaintiff is entitled to be reinstated to his position and to all benefits attached thereto from 1st of April, 1989. The Appellant in the alternative claimed the sum of N8, 977,153 as special and general damages for wrongful termination of appointment and that the termination of his appointment on grounds of redundancy is illegal, wrongful, null and void. The Trial judge held that though the termination breached the Labour Act, it is however valid and awarded one month’s salary in lieu of notice as damages. The Appellant has appealed against the judgment of the trial court.

---

HELD

---

Appeal Dismissed

---

ISSUES

---

–    Whether the lower court was right to not reverse or set aside the termination of the employment of the appellant and reinstate the appellant to his employment haven found the said employment to have been UNLAWFULLY terminated on the basis of redundancy; for noncompliance with section 20 (1) (a) & (c) of the Labour Act 1990.-    Whether one month’s salary in lieu of notice is the proper or reasonable entitlement of an employee whose employment is properly founded to have been UNLAWFULLY terminated on the basis of redundancy; for noncompliance with section 20 (1) (a) & (c) of the Labour Act 1990”.

---

RATIONES DECIDENDI

---

WRONGFUL TERMINATION OF EMPLOYMENT – NATURE OF REMEDY FOR WRONGFUL TERMINATION OF EMPLOYMENT

---

“The law is settled that when employment is wrongfully terminated, the remedy lies in damages except where the employment has a statutory flavor. An employment with a statutory flavor is one in which the law provides for the terms and conditions of such employment. The Supreme Court in the case of Idoniboye – Obu V N.N.P.C. (2003) 2 NWLR (Pt. 805) 589 had this to say:
“Before an employment can have statutory flavor, the statute must expressly make it so. Otherwise, the employment will have to be treated on the basis of the common law principle of master and servant. It is pertinent to ask, when will a condition of service be regarded to have statutory flavor? The answer is simple. A regulation with statutory flavor must be enacted by the Parliament or any law making body as a schedule to an Act or law or as a subsidiary Legislation.” PER Y.B. NIMPAR, J.C.A<foo< p=””></foo<>

---

CONTRACT OF EMPLOYMENT – EFFECT OF FAILURE TO ESTABLISH THE TERMS AND CONDITIONS OF SERVICE IN A CONTRACT OF EMPLOYMENT

---

“The initial burden of placing the terms and conditions of service and how it was breached rest squarely on the claimant, see Francis Katto V C.B.N. (1999) 6 NWLR (Pt. 607) 390. Failure to establish such terms would translate any consideration to be under the common law principles of master and servant.” PER Y.B. NIMPAR, J.C.A<foo< p=””></foo<>

---

WRONGFUL TERMINATION OF EMPLOYMENT – WHETHER REMEDY FOR WRONGFUL TERMINATION OF EMPLOYMENT IN A MASTER SERVANT RELATIONSHIP LIES IN REINSTATEMENT

---

“In a master servant relationship reinstatement is not an option because the law is trite that the court cannot impose an employee on an unwilling employer, see the case of Osisanya V Afribank Nig Ltd (supra) where the court held thus:
“It is settled that the court cannot impose a servant on an unwilling master.”
See also the following: Imoloame V WAEC (1992) NWLR (Pt. 265) 303; Bankole V NBC (19680 2 ALL NLR 371 and First Bank Of Nig Plc V Efobi Effiong Bam (2010) LPELR- 4160 (CA)”. PER Y.B. NIMPAR, J.C.A

---

WRONGFUL TERMINATION OF EMPLOYMENT – INGREDIENTS A PLAINTIFF MUST ESTABLISH IN A CLAIM FOR WRONGFUL TERMINATION OF EMPLOYMENT

---

“It is also the requirement of law that in a claim for wrongful termination of employment the plaintiff must establish some particulars such as:
i. That he is an employee of the defendant;
ii. That terms and conditions of his employment; and
iii. The way and manner and by whom he can be removed”. PER Y.B. NIMPAR, J.C.A

---

REDUNDANCY – DEFINITION OF REDUNDANCY

---

“Redundancy is a unique method of disengaging an employee. The court in the case of P.A.N V OJE (1997) LPELR – 6331 (CA) defined redundancy in the following words:
“Redundancy in service in my view, is a mode of removing off an employee from service when his post is declared “redundant” by his employee. It is not a voluntary or forced retirement. It is not a dismissal from service. It is not a voluntary or forced resignation. It is not a termination of appointment as is known in public service. It is a form unique only to its procedure where an employee is quietly and lawfully relieved of his post. Such type of removal from office does not, in my view, carry along with it any other benefit except those benefits enumerated by the terms of contract to be payable to an employee declared “redundant.”
PER Y.B. NIMPAR, J.C.A

---

WRONGFUL DISMISSAL –NATURE OF A PARTY’S REMEDY UPON WRONGFUL DISMISSAL OF EMPLOYMENT

---

“The lower court found that the disengagement of the appellant on ground of redundancy breached the law and was therefore invalid but that having occurred the appellant’s only remedy lies in damages. The Supreme Court in the case of Shell Petroleum Dev. Co. Ltd V Olarewaju (2008) 12 S.C. (Pt. III) 27 held as follows:
“It is trite that in cases of such as the present case, the measure of damages is prima facie, the amount the plaintiff would have earned had the employment continued according to the contract of employment, subject to the deduction in respect of amount accruing from other employment which the plaintiff in minimizing damages either obtained or should reasonably have obtained”. PER Y.B. NIMPAR, J.C.A

---

WRONGFUL TERMINATION OF EMPLOYMENT – REMEDY AVAILABLE TO A PARTY ON WRONGFUL TERMINATION OF EMPLOYMENT

---

“It has been settled in a plethora of cases that his remedy lies in damages “. PER Y.B. NIMPAR, J.C.A

---

CASES CITED

---

---

STATUTES REFERRED TO

---

Labour Act

---

CLICK HERE TO READ FULL JUDGMENT