Ph.D.

RESEARCH PROPOSAL

REVIEW OF EMPLOYMENT CONTRACT UNDER THE NIGERIAN LABOUR

LAWS

BY

IBE, VITALIS NDUBUISI

REG NO: NSUK/PG2020/36808

A THESIS PROPOSAL SUBMITTED TO THE SCHOOL OF POSTGRADUATE

STUDIES, NASSARAWA STATE UNIVERSITY, KEFFI, IN PARTIAL FULFILMENT
OF THE REQUIREMENTS FOR THE AWARD OF DOCTOR OF PHILOSOPHY
(Ph.D.) IN LAW

DEPARMENT OF PUBLIC AND INTERNATIONAL LAW,

FACULTY OF LAW,
NASSARAWA STATE UNIVERSITY KEFFI,
NIGERIA

SUPERVISORS:

DR OLABODE AYORINDE
&
DR DAVID AGBU

OCTOBER, 2023.
 TABLE OF CONTENTS.

CHAPTER ONE
INTRODUCTION
1.1 Background to the Study 1

1.2 Statement of the problem 4

1.3 Research Questions 6

1.4 Aim and Objectives of the study 6

1.5 Scope and Limitations of the study 7

1.6 Significance of the study 8

1.7 Research methodology 8

CHAPTER TWO

CONCEPTUAL FRAMEWORK AND LITERATURE REVIEW

2.1 Conceptual Framework 9

2.1.1 Concept of Labor Laws on Employment 9

2.1.2 Contract of Employment 10

2.1.3 Contract of Service 10

2.1.4 Contract for Services 11

2.1.5 Statute of Limitation on Contract of Employment 11

2.1.6 Termination of Employment 12

2.1.7 Dismissal 12

2.1.8 Trade Dispute 13

2.1.9 The National Industrial Court of Nigeria 14

2.10 Strike 16

2.11 Arbitration 18

ii
2.12 Unfair Labour Practice 19

2.13. At Will Employment 19

2.14. Just Cause Employment 19

2.15 Unfair Termination 20

2.16 Constructive Dismissal 20

2.2 Review of Previous Studies 20

2.3 Theoretical and Historical Foundation 34

2.3.1 Contract of Employment 34

CHAPTER THREE

LEGAL AND INSTITUTIONAL FRAMEWORK OF EMPLOYMENT CONTRACT

UNDER THE NIGERIAN LABOUR LAWS

3.1 Legal and Institutional Framework of Contract of Employment

3.1.1 1999 Constitution of Nigeria

3.1.2 Labour Act 2004

3.1.3 Trade Dispute Act

3.1.4 The position of Contract of Employment under Common Law

3.2 INSTITUTIONAL FRAMEWORK

3.2.1 National Industrial Court

3.2.2 Federal Ministry of Labor and Productivity

3.2.3 Nigeria Labor Congress (NLC)

iii
 CHAPTER FOUR
CHALLENGES AND PROSPECT OF CONTRACT OF EMPLOYMENT IN NIGERIA

4.1 Challenges of Contract of Employment in Nigeria

4.1.1 Termination of Contract of Employment and Security of Tenure

4.1.2 The Implication of Notice under the Common Law

4.1.3 Challenges of Master and Servant Relationship

4.2 Prospect of Contract of Employment in Nigeria

4.2.1 Trade Union Activities in Nigeria

4.2.2 National Industrial Court ADR Center

4.2.3 Pension Reform of Nigerian Workers

4.2.4 Development of Labour Laws in Nigeria

CHAPTER FIVE

CONCLUSION

5.1 Summary of Findings

5.2 Recommendations

5.3 Contribution to knowledge

5.4 Suggested Areas for Further Research

5.5 Conclusion

Bibliography

iv
 CHAPTER ONE

INTRODUCTION

1.1 Background to the Study

Accessing the historical overview of labour laws in Nigeria is very crucial since understanding

of the history of trade unionism in Nigeria is fundamental for the proper appreciation of the

events that led to the enactment of the Nigeria Labour laws1. Onah and Odeku2 posits that in

Nigeria, it is generally asserted by eminent scholars that the evolution of trade unions was a

very slow process

The colonial administration in Nigeria started in 1861 when Lagos was ceded to the British

Crown and was made a colony in 1862. The introduction of colonial administration in Nigeria

by the British authorities laid the foundation of wage-earning employment in Nigeria. The laws

of England, made up of the principles of common law, the doctrines of equity and statutes of

general application, were made applicable in the Lagos colony in 1863 by Ordinance No.3 of

that year. The laws of England were thereafter made applicable throughout Nigeria after the

acquisition of territories that made up of what is known today as Nigeria.

Most of our laws, according to Ogunniyi3, including the labour laws were principally derived

from the English legal system. The English legal system, including labour law and industrial

relations are therefore part of Nigeria`s colonial heritage. It therefore follows that the sources

of the Nigerian labour law are basically rooted in the English law. The author lists the sources

of the Nigerian labour law to include the Constitution of the Federal Republic of Nigeria, 1999

1
S. Balkaram, The importance of trade union on public service reforms in Nigeria and South Africa: A
comparative study, 2011
2
F. O. Onah and Odeku K.O. Human Resource management, (University of Nigeria Press Ltd, 2015).
3
O. Ogunniyi, Nigerian Labor and Employment Law in Perspective (1st edn, Folio Publishers Ltd 1998)5-6.

1
which has several provisions4 relating to labour management relations. The Labour Act,

Legislation, common law, Subsidiary sources of the Nigeria labour laws include collective

agreement, workplace rules or handbook, notices and documents, custom and practices and

international sources. Primarily, there is customary international laws and international treaties

(Convention) relating to labour and employment such as the ILO declaration of fundamental

principles of rights at work5.

These may constitute terms of employment if they are incorporated into the contract of

employment6.

It is important to note that the Ministry of labour and productivity is responsible for issues

relating to labour and employment while the National industrial court has exclusive jurisdiction

in civil and criminal matters relating to or connected with labour, employment, trade union,

industrial relations etc7

According to Uvieghara8, “it does appear that customary law has not contributed in any way to

our body of labour laws”. The reason, the author states, is that wage-earning employment was

virtually unknown in the pre-colonial era and in consequence our customary law did not

provide for the relationship between the employer and employee as is now the case in the

modern-day Nigeria.

4
CFRN, 1999, as amended, ss.17(3), 34, 40,41 and 42.
5
A.O.Enabule, Judicial Recognition of Treaties in Nigeria and the Status Question: whither Nigeria Courts.
(African Journals of International and Comparative Law, 2000)17(1).
6
B.O Adediji, Challenging issues and Accountability in Nigeria’s public Administration, 2012 Available at
<http://www.econstor.eu/handle/10419/35827> Accessed on 12 July 2023
7
B. Abubakar. An Appraisal of the jurisdiction and power of the National Industrial court of Nigeria. (Thesis,
Ahmadu Bello University press 2015)
8
E. E, Uvieghara, (Labor Law in Nigeria Malthouse Press Ltd 2001)2.

2
Ogunniyi9, while agreeing with the learned author that wage-earning employment was

virtually unknown prior to the advent of the Europeans in the nineteenth century, however

posits that Co-operative labour system existed. He states that under the Co-operative labour

system, members were paid back in service rather than in money. He opines that one of the

principal reasons for the lack of wage-earning employment was the under developed state of

the economy which at that was not monetized as in the modern times although at one stage

cowries were used as a means of exchange.

Berry10 on his part states that Under the communal Labour system, member were paid back

by kind rather than them in cash.

Mwalimu11 maintain that the advent of the colonialist brought about development of wage

earning employment and a monetized economy, labour laws began to evolve to regulate

master-servant relationship after the attainment of political independence in 1960, most

Nigerian laws including labour laws were mainly reproduction of the English laws.

This research will therefore examine some developments in labour law and industrial relations

based on some socio-economic developments in Nigeria. Some of the developments to be

considered include but not limited to those touching on employees’ social security as contained

in the Pension Reform Act 2004 as amended, Employees Compensation Act 2010, industrial

actions as contained in Trade Unions (Amendment) Act 2005 and the impact of the National

Industrial Court (NIC) in the resolution of industrial disputes as contained in the National

Industrial Court Act 200612 which empowers the court to apply international best practice in

labor relations and also to interpret and apply international labour standards, conventions,

9
O. Ogunniyi, Nigerian Labor and Employment Law in Perspective, (Folio Publishers Limited 1998)1.
10
S. Berry, No condition is permanent: The Social Dynamics of Agrarian Change, 1993
11
C. Nwalimu, The Nigerian Legal System: Public law, New York. ( Peter long publishing incorporation. 2005)
12
NICA, S.7(6).

3
treaties and protocols ratified by Nigeria without the requirement of domestications as

provided by section 2 of the Constitution of the Federal Republic of Nigeria 1999 and finally

the Constitution of the Federal Republic of Nigeria (Third Alteration) Act, 2010. This work

will also appraise the emerging trends in labor law and industrial relations in view of the recent

decisions of the Supreme Court as it relates to the Statute of Limitation in Contract of

Employment as contained under Public Officers` Protection Act13 as it apply to protect Public

officers in the Public Service of the Federation or how it offer protection to the Public Officers

in the States of the Federal Republic of Nigeria. This is because the Act has been viewed, in a

plethora of judicial authorities, as a weapon of injustice against the employee litigant created to

protect the Public Officers who in all cases, represents the employer. This review, therefore, is

to ensure that Nigeria not only meet the international best practices in labour related matters as

practiced in some other jurisdictions but also make recommendations for improvement in labor

related matters to ensure that Nigeria meets at least the minimum standards in line with the

International Labour Organization (ILO) Standards and therefore contribute to knowledge.

1.2 Statement of the Problem

The subtle or tenuousness of an employee`s security of tenure at common law has been the

subject of great criticisms by both eminent legal writers and legal scholars. Nwokwu 14 contends

that the problem affecting labour relations in Nigeria has always existed. He states that the

problem manifest itself in the formation and content of the laws, the powers and actions of the

law making bodies, the administering authorities and that of the labour unions. He op ines that

the major problem is that of the violation of labour laws as both the private and public

13
S 2(a), Cap P41, LFN, 2004. See Elaigwu Apeh, Nigerian Law of Limitation (Elaigwu Apeh) law publication,
2001) 34.
14
P.M. Nwokwu, Nigerian Labour Law: Issues and Challenges (IDONSI Publications,2018)

4
employers often go contrary to the provisions of the labour laws. According to him, the laws

are violated by employers, especially the Government that is the highest employer of labour

because they are not held accountable most times for labour offences due to high

unemployment rate in Nigeria thereby making employees to suffer in silence. He further states

that the Nigerian Labour laws provided the minimum standards of employment conditions

which every employer is expected to observe. The researcher observes that terms and

conditions of employment ought to be consensual between the employer and employee or

master and servant but in Nigeria, employers unilaterally determine determines conditions of

employment and employees can only take it or leave it due to the high level of unemployment

in the country. One would, therefore, sought to know the extent that the Nigerian Labour Laws

protected the right of workers against abuses by employers. The author highlights the disparity

in salary and wages in Nigeria among the various levels of Government, particularly the

inability or refusal of state Governments to pay minimum wages or even pay workers` salaries

and pension entitlements have led to protracted strikes and lock-outs, thereby adversely

affecting the economic and wellbeing of workers in Nigeria. Realizing the mischief done to the

Nigerian workers, the researcher finally observes that the Government has polarized the

Labour Unions as could be seen from the usual antagonisms/disagreements between the

Nigerian Labour Congress and the Trade Union Congress which ought to speak with one voice

in fighting for the welfare of Nigerian workers. This has threatened the collective bargaining

and made the labour unions a mere toothless bulldog in labour relations. This research work

will have the advantage of harmonizing the various views on the subject.

5
1.3 Research Questions

To achieve this objective, the researcher will seek to find answers to a number of pertinent

research questions relating to the determination of contract of employment such as:

1. To what extent can an employer determine the employment of an employee?

2. To what can the law of contract of employment be strengthened to mitigate the

hardship created by the unlawful termination / dismissal of an employee?

3. To what extent can an employer exercise his administrative power to summarily

dismiss an employee for criminal misconduct?

4. What are the areas that may work hardship in labour adjudication in Nigeria based on

the recent ILO Standards and Recommendations?

1.4 Aim and Objectives of the Study

The aim of this study is to identify the limits of administrative powers of employer in

determination of contract of employment under Nigerian labour laws.

The objective of this research is:

1. To examine the extent an employer would unceremoniously determine the employment

of an employee for less justification or even for no known blemish on the part of the

employee.

2. To suggest ways of bridging the gaps created by the common law contract in order to

mitigating the hardship created by the unlawful termination /dismissal of employees

from contract of employment.

6
 3. To analyze the extent to which an employer can exercise his administrative power to

summarily dismiss an employee accused of criminal misconduct

4. To examine the areas that may work hardship in labour adjudication based on the recent

International Labour Organisation Standards and to proffer recommendation.

1.5 Scope and Limitations of the Study

The scope of this study will cover the review of Employment Contract under the Nigerian

Labour Laws with a view to examine some developments in labour and industrial relations

based on some socio-economic developments. Some of the developments to be considered

include but not limited to those touching on Employees’ Social Security as contained in the

Pension Reform Act 2004 (as amended), Employees Compensation Act 2010, Industrial

Actions as contained in Trade Unions (Amendment) Act 2005 and the impact of the National

Industrial Court (NIC) in the resolution of industrial disputes as contained in the National

Industrial Court Act 2006(as mended) and finally the Constitution of the Federal Republic of

Nigeria (Third Alteration) Act, 2010.

This work will also review/appraise the emerging trends in labor law and industrial relations to

ensure that Nigeria not only meet the international best practices in labour related matters as

practiced in some other jurisdictions but also make recommendations for improvement in

labour related matters to ensure that Nigeria meets at least the minimum standards in line with

the International Labour Organization (ILO) Standards.

However, reference would be made to recent developments in some other common law

countries for comparative analyses and appraisal of the current state of labour laws and

therefore contributes to knowledge.

7
This study will be limited by literature, territorial as well as the subject matter limitations

(contract of employment under the Nigerian labour laws). Other limiting factors envisaged to

be encountered in the course of this study were that of time frame, inadequate finance and

accessibility to research materials.

1.6 Significance of the Study

A comprehensive review of employment contracts under Nigerian labor laws holds significant

importance in the contemporary work environment. It serves as a vital undertaking in light of

the dynamic nature of labor regulations and their direct impact on both employees and

employers. Such a study not only facilitates a deeper understanding of the rights and

obligations of both parties but also ensures that employment agreements align with the latest

legal requirements. This is particularly crucial in Nigeria, where the labor market is rapidly

evolving, and legal frameworks need to adapt to changing economic and social conditions.

Ultimately, the significance of this study lies in its potential to enhance the efficiency and

fairness of employment relationships in Nigeria, promoting a more just and prosperous society

for all stakeholders involved.

1.7 Research Methodology

Research is defined as systematic search for facts or scientific investigation of principles and

facts of any subject, based on original and first hand study of authorities or experiment. It

involves searching into a matter closely and carefully. Research is an original investigation

undertaken by to gain knowledge or to enhance understanding. It should be noted that original

in this sense does not mean that the facts investigated upon should must be new. Research is

also a systematic investigation towards increasing the sum knowledge. In research, knowledge

8
is added to, problems are solved, inadmissible viewpoints are refuted and some scholarly

conclusions are formulated.

This research shall adopt Doctrinal Research method. This study shall involve a comparative

analysis of primary and secondary data, well perused to bring about the study in the forms of

local legislations, rules and case law. This research also shall make use of secondary data such

as books, journals, articles, law reports, internet sources and other scholarly materials relating

to this area of study.

9
 CHAPTER TWO

CONCEPTUAL FRAMEWORK AND LITERATURE REVIEW

2.0 Conceptual Framework

2.1 Concept of Labor Laws on Employment

Labour laws are defined as body of rules which regulate the rights and duties of a person or

persons performing or accepting the work of a subordinate. In other words, Labour Law

meditates the relationship between employees, employers, trade union and government.

Unfair Labour Practice is an action by an employer or union that violates the law. These

includes casualization of workers, poor remuneration and discrimination at work place, sexual

harassment etc. these are practices that do not conform with the best practices in labour relation

as enjoined in the National laws and international bodies.

2.1.1 Contract of Employment

Contract of employment is defined as an agreement, whether oral or written, express or implied

whereby one person agrees to employ another as a worker and that person agrees to serve the

employer as a worker. A contract of employment is said to have statutory flavor when the

appointment and termination is protected by statute or laid down regulations made to govern

the procedure for employment and discipline of an employee.

Just-Cause employment generally refers to terms that provide a guarantee to the employee that

they will only be fired if there is a good reason. The Just Cause provision does not necessarily

have to be within an employee’s contract.

10
At-will Employment means that employer is legally allowed to terminate their employment at

any time for any reason as long as that reason is not illegal or for no reason at all. At- will

employees are also allowed to leave their job at any time for any reason. Notwithstanding, At-

will employees cannot be wrongfully terminated.

The Labor Act15 defines Contract of Employment to mean any agreement, whether oral or

written, express or implied, whereby one person agrees to employ another as a worker and the

other person agrees to serve the employer as a worker. Labour Law and Industrial Relations,

therefore, refers to the legal relationship between employer and employee or master and

servant. Under the relationship, the employee provides labor for the employer and receives

wages in exchange.

2.1.2 Contract of Service

A Contract of Service is that type of employment entered with employees who engage and

perform services with a company on a day – day bases. Contract of Service is defined as a

relationship between two parties-employer and employee (Master and Servant) whereby the

Servant agrees to serve the Master and to be subject to the control of the Master and to obey

the order of the employer in return for a benefit that employees of the company are entitled to

from time to time during the course of their employment. The content of an employment

agreement vary from industry to industry and shall be descriptive of the nature of the work to

be carried ot by the employee. In addition, it must state the working hour, salary structure, etc.

Ownership of the intellectual property created by an employee in the course of his employment

belongs to the employee. However, in order to claim ownership of such intellectual property,

15
Cap L 1, LFN 2004, s91 (1).

11
the employer must incorporate such ownership in the term and condition of the contract of

employment16.

2.1.3 Contract for Services

Contract for Services is an agreement entered into by a company with a third-party, usually

referred to as independent contractors or self-employed persons. The third-party is an

independent service provider and therefore not an employee of the company. The company

does not exercise control over the independent contractor. The third-party is not entitled to the

benefits that employees receives from time to time during the course of their employment and

are not offered protection of unlawful dismissed by labour legislations. The employer gets

ownership of the intellectual property created in the work done after paying for the services to

the independent contractor.

2.1.4 Statute of Limitation on Contract of Employment

Statute of Limitation is a law that defines the period during which a law-suit can be brought to

court. In other words, it is the law that sets the maximum time that the parties have to initiate

legal proceedings from the date an alleged offence. This means when the period specified in

the Statute of Limitation has passed, law-suit will no longer be filed because it will become

statute barred.

2.1.5 Termination of Employment

Termination refers to the ending of an employee’s contract/work with a company. It is

voluntary where a worker leaves on their own volition.

16
Available at <https//www.startupindia.gov.in/content/dam/invest_india/Templates/public/Tools_
templates/internate_template/Lets_Venture/EMPLOYMENT_AGREEME> accessed 8 July 2023.

12
Termination for Cause is where an employee is treated as having been dismissed where his/her

contract of employment is terminated for cause- i.e. for gross misconduct, fraud or sexual

harassment.

Wrongful termination is a situation in which employee’s contract of employment is terminated

in breach of certain provisions of the contract of employment. It is also referred to as wrongful

discharge.

Unfair termination is another term for wrongful termination. This occur when an employee is

being terminated from employment without following the due process or disciplinary

procedure as contained in its staff manual or for an illegal reason e.g. Breach of good faith and

fair dealing, failure to grant medical leave.

2.1.6 Dismissal

Dismissal is a discharge from service or office. To dismiss, according to the Oxford Advanced

Learner`s Dictionary “is to officially remove somebody from his or her job” Constructive

Dismissal is when there is a fundamental change in the employment relationship that amounts

to a dismissal. According to Cambridge Dictionary, Constructive Dismissal arises when an

employer may intentionally make working conditions for an employee difficult so that the

employee feel forced to leave their job.

Unfair Dismissal is where an employer terminates an employee’s contract of employment

without a fair reason. It is also referred to as unlawful dismissal

13
2.1.7 Trade Dispute

Whenever, there is employer/employee relationship, there is bound to be dispute relating to the

conditions governing the relationship, which in industrial relation parlance is often referred to

as trade or labour dispute.

In a normal industrial relations environment, some of the following factors may be ground for

a trade dispute:

1. When negotiation between employer and workers through their representatives break

down.

2. Dispute can also occur over non implementation of previous collective agreements.

3. Disputes over interpretation of collective agreement.

4. Disputes over improvement of conditions of services

5. Disputes over increase in pay or salary.

Usually disputes hover around the terms and conditions of employment, principally over

improved wages and work conditions. Under the Nigeria Labour Law, certain rights and

obligations of employer and employees are guaranteed by the common law. Statutory

legislations, established practice and collective agreement reached through collective

Bargaining between the representatives of the employer and employee17

2.1.8 The National Industrial Court of Nigeria

An active work force is useful for economic prosperity and growth in a nation; in fact, an

active work force is an index of a growing economy. 18 The labour force bears the brunt and

17
B. Atiola, ‘Nigeria Labor Legislation’, Hybrid Consult Legal Research, Publishing Training Consultancy p.279.
18
J. Abugu, ‘ILO Standards and The Nigerian Law of Unfair Dismissal’ AJICL (2009) (17) 181, 181.

14
burden of a nation’s growth push. It is settled that a laborer is worthy of his wages 19 but what is

not settled within Nigeria is whether the employee who is unfairly dismissed is entitled to be

given a valid reason for his dismissal. Quite a number of common law countries have moved

away from the concept of termination at will to one prohibiting unfair dismissal or insisting on

termination with justification.20 Currently, in the United Kingdom (UK), after which our legal

system is modelled, an employer does not have the right to dismiss an employee unfairly. 21

This has been documented under the Employment Rights Act (UK Law). While there have

been shifts in other climes, this shift has not been reflected in the Nigerian Labour Act. 22 Thus,

the issue that employer may only terminate the employee employment based on valid reason is

unknown to the Labour Act23 and so is the onus of proving validity of fairness of reason.24

The afore stated uncertainty in this area of the law as far as employer employee relationship is

concerned formed one of the major reasons for the creation of a National Industrial Court in

Nigeria to exclusively handle these issues. The National Industrial Court of Nigeria

(hereinafter referred to as ‘the NICN’) was originally established in 1976, by the Trade

Disputes Decree of 1976.25 The Court became functional in 1978, when the first President of

the Court was appointed in 1978.26 Its jurisdiction as spelt out in the CFRN 1999 (As amended

2018), Trade Disputes Act and the NICN Act 2006 consist among other things of matters or

cases relating to or connected with any labour, employment, trade unions, industrial relations
19
See 1 Timothy 5: 18, Authorised King James Version, The Holy Bible (ZONDERVAN, 2000)
20
J. Abugu, ‘ILO Standards and The Nigerian Law of Unfair Dismissal’ AJICL (2009) (17) 181, 186
21
ERA, 1996 S94 (1).
22
LFN 2004, Cap L1.
23
LFN 2004, Cap L1.
24
A. Adeyinka and A. Adejugbe, ‘The Philosophy of Unfair Dismissal Law in Nigeria’ SSRN Electronic Journal
(2020). <https://doi.org/10.2139/SSRN.3697696> <https://www.academia.edu/44143822/THE_
PHILOSOPHY_OF_UNFAIR_DISMISSAL_LAW_IN_NIGERIA> accessed 14 June 2023.
25
Federal Republic of Nigeria Decree No. 7 of 1976.
26
Hon Justice Babatunde Adeniran Adejumo, The Relevance of the National Industrial Court of Nigeria in the
Scheme of things in Contemporary Nigeria: What is the future for Litigation and Advocacy in the Court? (Paper
presented at 2013 Retreat Organized by NBA (Illorin Branch, 2013) 4.

15
and matters arising from workplace, the conditions of service, including health, safety, welfare

of labor, employee, worker and matters incidental thereto or connected therewith; matters

relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions

Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment,

industrial relations, workplace or any other enactment replacing the Acts or Laws; cases

relating to or connected with the grant of any order restraining any person or body from taking

part in any strike, lockout or any industrial action, or any conduct in contemplation or in

furtherance of a strike, lock-out or any industrial action and matters connected therewith or

related thereto; and cases relating to or connected with any dispute over the interpretation and

application of the provisions of Chapter IV of this Constitution as it relates to any employment,

labor, industrial relations, trade unionism, employers association or any other matter which the

court has jurisdiction to hear and determine etc. The court has a vast but specialized

jurisdiction very crucial to the economic growth of the country and the judicial sub sector as a

whole thus the subject under research has several ramifications going forward. A National

Industrial Court is very pivotal to economic growth and prosperity and it is quite commendable

that in line with international labor standards Nigeria can boast of a functional industrial court.

2.1.9. Strike

The development of labour unions in the 19 th century was met by employer hostility. The

concept of collective bargaining between employer and employee was viewed as an antithetical

to the right of individual worker and their employers to negotiate wages and working

conditions. The unequal barging power of unions was remedied by the passage of labour laws.

The labour law clearly established the right of employees to form join or aid labour unions.

16
The Act authorized collective bargaining by unions and gave employees the right to participate

in concerted actions to bargain collectively. The major concerted action is the right to strike.

According to Oladosu27, Strike is the cessation of work by a body of persons employed, acting

in combination or a concerted refusal under a common understanding of any member of

persons employed to continue to work for an employer in consequence of a dispute done as a

means of compelling their employer or any person or body of persons employed, or to aid other

workers in compelling their employer or any person or body of persons employed, to accept or

not to accept terms of employment and physical condition of work. In this definition;

a. “Cessation of work” includes deliberately working at less than the usual speed or with

less than usual efficiency; and

b. (b) Refusal to continue to work” includes a refusal to work at usual speed or with

usual efficiency.

Lord Denning M.R. in Tramp Shipping Corp v Greenwich Marine Inc 28, defined strike as “a

concerted stoppage of work by men done… with a view to improving their rent or condition of

employment or giving something or supporting or sympathizing with other workmen in such

endeavor”. It is distinct from stoppage which is brought about by an external event such as a

bomb scare or by apprehension of danger.

The Trade Unions Act29 provides that “it shall be lawful for one or more persons, acting on

their behalf or on behalf of Trade Union or Registered Federation of Trade Unions of an

individual employed or firm in contemplation or furtherance of a trade dispute … if they so

27
O. Ogunniyi. Nigerian Labour and Employment Law in Perspective (Folio Publishers 1998) 284
28
Tramp Shipping Corp v Greenwich marine Inc (1975) 2 ALL ER989
29
s43(1) Trade Union Act, cap T 14, LFN 2004

17
attend merely for the purpose of peaceful obtaining or communicating information or of

peacefully persuading any person to work or abstain from working.

By this provision, it is clear that every strike is not illegal since the Trade Union Act

recognizes strike as a legitimate weapon in matters of industrial relations. Strike therefore is a

weapon used by workers and Unions to agitate their demand.

Strike is a concerted refusal of employees to perform work that their employer has assigned to

them in order to force the employer to grant certain demanded concessions, such as increased

wages or improved employment conditions.

A work stoppage is generally the last step in a labour-management dispute over wages and

working conditions. This is because, strike bears two edges; employees are not paid when they

go on strike while the employers lose productivity. It causes loss of profit and loss of jobs. It is

therefore a risk with adverse consequences. It leads to break down of relationship and it also

disrupts business continuity and adversely impacts on productivity. It creates rivalry among

trade unions and usually marred by intimidation and violence. Both sides usually seek to avoid

it30.

2.10. Arbitration

Arbitration is a proceeding in which a dispute is resolved by an impartial third party whose

decision the parties to the dispute have agreed, or legislation has decreed, will be final and

binding. In the case of Taylor Woodrow of Nigeria Ltd. v Suddeutsche Etna-Werk GMBH,31

Ogundare, J.S.C. held that parties having submitted themselves to the arbitrator, it is

30
West Encyclopedia of American Law, 2005 <http://www.encyclopedia.com/topic/strike.aspx> (accessed June
12, 2023)
31
1993) 4NWLR (Citation SC.43/1991).

18
unreasonable that the applicant would want to turn their back to the decision of the arbitrator,

which decision had been agreed shall be final and binding between the parties. Arbitration is

different from judicial proceedings, although in some jurisdictions court proceedings are

sometimes referred to as arbitration. Arbitration is also different from alternative dispute

resolution as well as expert determination32.

Before the advent of the Arbitration and Conciliation Act, which serves as the principal statute

regulating arbitration in Nigeria, arbitration was conducted in line with the custom and

tradition of the people.

Arbitration, according to Gadzama33, has been with the various indigenous communities in

Nigeria prior to the introduction of litigation.

Customary arbitration according to Bello34 has been in existence in Nigeria before the

introduction of the adversarial system of resolving disputes by the British Colonial masters.

Customary arbitration which involves an arbitral proceeding conducted under the generally

accepted norms, custom and tradition of the people has been widely contested through a

plethora of cases of its existence in the Nigeria jurisprudence.

The Quran even supports arbitration where it states, “if two parties among the believers falls

into quarrel, make you peace with justice and be fair for God loves those who are fair and

just”.35 It will therefore be wrong to state that arbitration is a recent development in Nigeria.

32
available at <https//:en.wikipedia.org/wiki/arbitration accused 2/3/2016> accessed 8 July 2023.
33
J. K. Gadzama, Inception of ADR and Arbitration in Nigeria: A paper presented at the Nigerian Bar
Association, Abuja (2004). <http.//www.gadzama.com/index.phpaccessed>. accessed on14/3/2016
34
A. T. Bello, Customary and Modern Arbitration in Nigeria: A Recycle of Old Frontier; Journal of Research and
Development, vol2, N0 1, 2004.
35
Quran 4v 35.

19
2.11 Unfair Labour Practice

Unfair Labour Practice is an action by an employer or union that violates the law. These

includes casualization of workers, poor remuneration and discrimination at work place, sexual

harassment etc. These are practices that do not conform with the best practices in labour

relation as enjoined in the National laws and international bodies.

2.12 Just-Cause Employment

Just-Cause employment generally refers to terms that provide a guarantee to the employee that

they will only be fired if there is a good reason. The Just Cause provision does not necessarily

have to be within an employee’s contract.

2.13 At-Will Employment

At-will Employment means that an employer is legally allowed to terminate an employment at

any time for any reason as long as that reason is not illegal or for no reason at all. At- will

employees are also allowed to leave their job at any time for any reason. Notwithstanding, At-

will employees cannot be wrongfully terminated.

2.14 Unfair Termination

Unfair termination is another term for wrongful termination. This occur when an employee is

being terminated from employment without following the due process or disciplinary

procedure as contained in its staff manual or for an illegal reason e.g. Breach of good faith and

fair dealing, failure to grant medical leave. Wrongful termination It is also referred to as

wrongful discharge.

20
2.15. Constructive Dismissal

Constructive Dismissal is when there is a fundamental change in the employment relationship

that amounts to a dismissal. According to Cambridge Dictionary, Constructive Dismissal arises

when an employer may intentionally make working conditions for an employee difficult so that

the employee feel forced to leave his/her job.

2.2 Review of Previous Studies

Literature review will assist the researcher in the understanding of identified gaps in the

contribution by various authors in this area of study. It will also help the researcher in making

his own contribution in other to fill the identified gaps.

The contribution become very important because this review of the Employment Contract

under the Nigerian Labour Law will help to draw a line between the limits of administrative

powers of an employer to dismiss an employee summarily and when the intervention by the

court becomes mandatory in resolving contractual conflicts in labour relations thereby

contributing to knowledge.

The employer and employee relationship, according to Uvieghara36 is basically contractual in

nature. The relationship is brought about by a contract of employment which is a specialized

contract. The formation of the contract of employment and other basic issues relating to

contracts generally, including contract of employment such as consideration and capacity and

the effect of misrepresentation, duress, undue influence and illegality are largely guided by the

common law general contractual rules as part of the English law. There are, however, special

rules peculiar to the employer and employee relationship alone developed by the courts over
36
E. E. Uvieghara,., Nigerian Labor Laws – The Past, The Present and The Future; An Inaugural Lecture
Delivered at the University of Lagos on Wednesday, 15, 1987 ( University of Lagos Press, 1987) 4.

21
the years, particularly relating to the rights and obligations of the parties involved in the

relationship. These rules or rights and duties are implied into a contract of employment, unless

excluded by an express term of the contract or by a statute. Gardner37 opines that

contractualisation of employment also provides the justification and legitimacy for the

extensive authority that employers exercise over every aspect of an employee life.

According to Ogunniyi38, “contract of service, as distinct from contract for services usually

referred to as independent contractor, is one of the phrases used to describe the relationship

entered into between two parties - employer and employee (or master and servant), whereby

the servant agrees to serve the master and to be subject to the control of the master either for a

fixed period or for a term of indefinite duration in return for a benefit. The author distinguishes

the difference between contract for services and contract of service. The difference, the author

argues, affects the law that regulates the relationship. He states that at the commencement of

every employment relation, the employer must provide a written statement specifying the terms

and conditions of the employment between the parties”.

Emiola39 made a distinction between a contract of employment which according to him places

most emphasis on the power of the employer to control the work of the employee and a

contract for services in which an independent contractor is involved. According to him, the

traditional distinction is that whereas the principal can merely direct the work to be done by his

Agent (independent contractor) the master may also direct how the work is to be done. Hugh40

suggest that contract of employment embraces an authoritarian structure that appears to be at

37
J. Gardner, “The Contractualisation of Labour Law” in philosophical Foundation of Law”;
<https://ssrn.com/abstract=3617993> accessed 8 October 2023.
38
O. Ogunniyi, Nigerian Labor and Employment Law in Perspective (Folio Publishers Ltd 1998).
39
A. Emiola, Nigerian Labor Law (4th edn, Emiola Publishers Ltd 2008) 22-23.
40
C. Hugh, “Is the Contract of Employment Illiberal” in Philosophical Foundation of labour Law (OUR 2018)2;
<https://ssrn.com/abstract=3617993> accessed 8 October 2023.

22
odds with the commitment in liberal societies to values such as liberty, equal respect and

respect for privacy

Ogunniyi41 contrasted contract of service and contract for services when he stated that the

protection offered by the labor legislations are only for those under contract of service,

commonly referred to as “employees” and not those under a contract for services- often

described as “independent contractors or self-employed persons”. This distinction, according to

the author, is more than a question of mere semantics. The importance of the distinction, he

posits, can only be recognized and appreciated when it is realized that the rights not to be

unlawfully (or unfairly) dismissed and to receive redundancy payments are only available to an

employee and not to independent contractor.

Uvieghara42 distinguishes employer and employee relationship from other similar relationship,

including agency, bailment and partnership relationships based on the civil law distinction

between contract of employment or contract of service usually referred to in Nigeria, as

‘Master and Servant relationship as against contract for services.

Contract of employment originated from the common law contract, the product of agreement to

hire or to serve is presumed in law to be voluntary and on equal footing. The presumption of

equality between the parties, according to Emiola43,

tends to ignore other social and economic considerations which

may make this equality and its underlining freedom fictitious and
hollow… Indeed, the so-called bargaining power of the individual
workers is of little importance in practice, especially where there
are more workmen than the jobs available and where the employer

41
O. Ogunniyi, Nigerian Labor and Employment Law in Perspective (Folio Publishers Ltd 1998)15.
42
E. E. Uvieghara, Labor Law in Nigeria (Malthouse Press Ltd 2001) 3-11.
43
A. Emiola, Nigerian Labor Law (4th edn, Emiola Publishers Ltd 2008) 2.

23
 can choose freely whom to employ and under what conditions they
are to be employed.
O`Neil and White44 maintain that strike assist in serving as the most reliable counterweight to

inequality of bargaining power and political equality more generally.

Emiola45 criticizes “such labor law as there is in this country which rests heavily upon the

phenomenon, the individual contract of employment, in which the two sides (employer and the

individual employee) are looked at by law as equals to a legally enforceable agreement”.

Adeogun46 on his part insists that “there is no question of equality between the parties and

even the modern presumption of equality is a farce particularly in a situation of high

unemployment such as the case now in Nigeria”. He is of the further opinion that “the

presumption of equal footing between the employer and employee in the negotiation of terms

and conditions of employment seems to favor the employer more than the employee. The

prospective worker`s only choice, he further opines, is “either to accept the terms or leave

them”. Cabrelli and Zahn47 inequality of bargaining power should be slowly discarded as a

foundation for labour law and replaced by theories of republicanism and non-domination. As

they explained, the former justification has been criticized for its lack of prescision.

Abugu48 argues that:

it may be expected, therefore, that parties are fairly aware of the

terms upon which they contract. He states that such contract should
ideally be a protective mechanism, particularly for the employees.
This, he states, is rather illusory as workers are hardly in a position

44
M. O`Neil and S. White, “Trade Unions and Political Equity” in Philosophical Foundation of Labour
Law(n1)252; <https://ssrn/abstract_3617993> accessed 8 October 2023.
45
ibid 11.
46
A. A. Adeogun, The Legal Framework of industrial relations in Nigeria; Law Journal, Vol 3 (1969).
47
D. Cabrelli and R. Zahn, “Civic Republicanism Political Theory in Labour Law” in Philosophical Foundation of
law 104; <https://ssrn.com/abstract=3617993> accessed 8 October 2023.
48
J. Abugu, ILo Standards and the Nigerian Law of Unfair Dismissal (2009).

24
 to negotiate and accept the plenitude of terms which may attach to
their situation. He observes that oftentimes, letters of employment
are as scanty as the employer desires.
Freedland49 maintains that contractual terms not only placed workers in precarious situation in

which they are supremely vulnerable to the economic risks but by the same means placed them

beyond the scope of protection of labour law which they hereby more often ever need.

The researcher observes that this great advantage the employer has over the employee is a

reflection of capitalist society. He agrees with the learned authors that the presumption of

equality under the common law is a mockery and states that a prospective employee does not

have the liberty of negotiation of terms with the almighty employer who is the ‘be all and the

end all’. This he further states is a true reflection of the age long saying that ‘a beggar has no

choice’. Furthermore, the researcher states that it is the high level of unemployment in Nigeria

that compels employees to work under the hardship which may be likened to forced labor. He

suggests the need to review most of our labor legislations in order to protect the hapless

employees from the shackles of the common law and fill the gaps which resulted to the

inequality created by the common law. Ogunniyi50, opines that “a situation where there is no

freedom to decide whether or not to work or where people can be compelled to work is

compatible only with totalitarianism. He states that the status of a servant, at that time, is only a

little better than that of a serf. He further states that it was the master who had all the rights

while the servant had all the obligations. Emiola51 highlights the importance of freedom of an

employee to choose whom to serve when he states that “I had fancied that ingrained in the

personal status of a citizen under our laws was the right to choose for himself whom he would

49
M. Freedland, “Reinforcing the philosophical Foundations of Social Inclusion “ in Philosophical Foundation of
Labour Law -322.
50
O. Ogunniyi, Nigerian Labor and Employment Law in Perspective, ( Folio Publishers Ltd 1998) 286.
51
A. Emiola, Nigerian Labor Law (4th edn, Emiola Publishers Ltd 2008)45.

25
serve and that this right of choice constituted the main difference between a servant and a serf”.

Alan and Estlud52 maintain that this calls for justification for strong trade unions and their

actions, including collective bargaining and the right to strike. They insist that strike assist in

promoting democracy in general and workplace in particular.

The Constitution of the Federal Republic of Nigerian 1999 (as amended) 53 prohibits forced

labor. The Labour Act54 re-emphasized that “any person who requires any other person, or

permits any other person to be required, to perform forced labour contrary to the provision of

s34 (1) (c) of the Constitution of the Federal Republic of Nigeria 1999, shall be guilty of an

offence and on conviction shall be liable to a fine not exceeding N1000.00 or to imprisonment

for a term not exceeding two years, or to both.

The researcher insists that employees are compelled to work as a result of the glut in the labour

market and employers being aware of the availability of the cheap labour, are not interested in

the negotiation of terms and conditions of employment. The researcher observes that most

often, where there is negotiation at all between the employer and employees, such negotiation

usually reaches an impasse. The researcher therefore recommends the review of s73 (1) of the

Labour Act to provide for the payment of a lump sum to any employee who is compelled to

work without his wish and to also increase the penal provision from N 1000.00 to N1million or

to imprisonment for a term not exceeding five years, or to both to serve as a deterrent.

The freedom in conducting a trade, according to Uvieghara55, is not absolute or unconditional.

It is only a particular aspect of the citizen right to personal freedom, and like other aspects of

52
B. Alan and C, Estlud, Freedom of Association and the Right Contest” in Allan Bogg and Tonia Novitz (eds)
Voice at Work: The Continuity and Change in the Common Law World (OUP 2014)141.
53
CFRN 1999 (as amended) s34 (1) ( c ).
54
Cap L 1, LFN 2004, s73 (1).
55
E. E. Uvieghara, Larbor Law in Nigeria (Malthouse Press Ltd 2001) 21 & 445.

26
that right, is qualified by various legal limitations either by statute or by common law. He

opines that parties to a contract cannot waive a statutory provision in their terms of contract of

employment unless the statute so provides. He insists that in any dispute arising out of contract

of employment, it is vital that the terms and conditions must be proved. Furthermore, he states

that in an action for wrongful dismissal, the contract of employment which is the bed rock or

foundation of the action must be pleaded so as not to leave the terms to speculation by both the

defendant and the trial judge. Without the plea of such term, he contends, no evidence of the

term would be admitted.

The researcher is in total agreement with the assertion of the learned authors because you

cannot build something on nothing. The terms and conditions of the contract of employment

will assist the court to arrive at a reasonable conclusion.

At common law, an employee is under a duty to obey the order of his employer. A servant

repudiates his contract of employment if he willfully disobeys the lawful and reasonable orders

of his master – that is, willful disobedience of lawful order is a sufficient ground for summary

dismissal of an employee. However, Ovieghara56 contends that “an employee is not under any

obligation to obey any lawful order which will expose him to danger either to his life or

health”. The researcher shares the author`s sentiment since it is only the living that can work or

take lawful orders. The researcher argues that there may undoubtedly be cases justifying a

willful disobedience of such order as where a servant apprehends danger to his life. It is an

unlawful order to direct a servant to continue to work where he is in danger of violence to his

person or of an infectious disease. The researcher further argues that the inflexibility of the

common law rule which governs master – servant relationship is long overdue for review.

56
E. E. Uvieghara, Larbor Law in Nigeria (Malthouse Press Ltd 2001) 37.

27
Under the common law, termination or dismissal of an employee brings a contract of

employment to an end irrespective of the intention or reason. The basis of employer-employee

relationship is the contract of employment and the ordinary incidents of that relationship.

Shulman57 posits that once the contract of employment incorporates the procedure for

determination of the contract, which in this case, is by service on the appellant (employee) of a

months’ notice or payment of salary in lieu of notice, all that the respondent needed to do was

to serve the appellant with the requisite notice or pay the salary and other terminal benefits.

Adeogun58 opines that “the contract of employment which is the plank of the relationship is a

product of industrial revolution and the 19 th century laissez-fair is its principal justification. He

states that the 19th century laissez-fair rested on the freedom of the contracting parties and the

security of contract”. Gbenga59 agrees with Adeogun’s position when he states that “contract

of employment is the bedrock or foundation upon which the employee must base his case. He

succeeds or fails upon the terms of the contract of employment. The implication of this, he

contends, is that where a contract of employment has been reduced into writing, parties are

bound by those terms and courts have no duty to look outside the terms agreed by the parties in

exercising their rights and obligations”. Sanni60 however disagrees with Adeogun when he

states that:

there are special rules peculiar to the employer and employee

relationship alone developed by the courts over the years,
particularly relating to the rights and obligations of the parties
involved in the relationship. These rules or rights and duties are
implied into a contract of employment, unless excluded by an

57
H. Shulman, Reason, Contract and Law in Labor Relations, 68 Harvard review (1995) 999.
58
A. A. Adeogun, From Contract to Status in Quest for Security: Inaugural Lecture (Lagos University Press
1986)8.
59
G. Ojo.
60
A. Sanni, Introduction to Nigerian Business Law (Malthouse Press Limited, 2005) 3.

28
 express term of the contract or by a statute. The general principles
of the Law of Contract apply where no such special rules exist
The researcher recommends that any employee who claims that his employment was wrongly

terminated, the court must look not only at the terms and conditions of the contract of

employment but also into those terms implied by statute which may include letter of

employment, staff manual, employee hand book, collective agreements, circulars/ internal

memos etc. Recourse may also be had on other terms implied by statutory provisions in

relation to contract of employment as well as custom, usage and practice. The researcher

observes that the regulatory legislations seek, among others, to protect employees who are

considered vulnerable in industrial relations against the unrealistic and fictitious Common

Law’s assumption of equal bargaining power of the contracting parties in labor relations.

The researcher argues that the observation is in line with the argument of Ogunniyi when he

states that “the right to employment bears the same resemblance as the right to property and

therefore has a right to security of tenure which must be protected, and if this is violated by the

termination of his contract, he is entitled to compensation”. Agomo61, made a far-reaching

observation to the effect that “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”

The researcher opines that the current state of laws of contract of employment and dismissal

from employment has been a source of concern to stake holders in labour and industrial

relations. The termination of employment at will by the employer for good, bad or no reason at

all has caused a lot of problem within labor and industrial relations. He further opines that this

necessitated the International Labour Organization (ILO) in setting out standards against unfair

dismissal in order to rectify the unfavorable labour relationship between the employer and
61
, C..K. Agomo Natural Justice and Individual Employment Law in Nigeria.

29
employee which tends to favor the employer more than the employee. One of the guiding

principles of the International Labour Organization, the researcher opines, is that labour is not

a commodity to be traded in the same way as goods, services or capital, and that human dignity

demands equality of treatment and fairness within the workplace 62. Articles 23 and 24 of the

ILO Convention specifically provides as follows:

(a) Everyone has the right to work, to free choice of employment, to just and favorable

conditions of work and to protection against unemployment;

(b) Everyone, without any discrimination, has the right to equal pay for equal work;

(c) Everyone who works has the right to just and favorable remuneration ensuring for

himself and his family an existence worthy of human dignity, and supplemented if

necessary, by other means of social protection;

(d) Everyone has the right to form and to join trade unions for protection of his interests

(e) Everyone has the right to rest and leisure, including reasonable limitation of working

hours and periodic holidays with pay.

The ILO has drawn up a number of conventions or charters on what ought to be the labor

standards adopted by Countries who are party to it. Such countries are, therefore, obliged to

ratify the conventions in their own national law. Employment standards, according to

Olusegun63 “are social norms for the minimum socially acceptable conditions under which

employees will work”. Some of the standards set up by the ILO are the ILO Recommendations

62
National Open University of Nigeria: Note on ‘Employment and Labor Law’, Course Code MPA 779.
63
O. Yerokun, Casebook on Labour Law: Comments and Cases (Princeton Publishing Company 2015)1.

30
and Conventions64 The ILO Termination of Employment Convention 158 of 1982 deals with

Unfair Dismissal. It replaced the 1963 Termination of Employment Recommendation. The ILO

Recommendation No 119 of 1982 on the other hand guarantees to the employee the right to

work and adequate security of tenure in his place of employment. This provision clearly states

that “termination of employment should not take place unless there is a valid reason for such

termination connected with the capacity or conduct of the worker based on the operational

manual of the establishment`s undertaking or service”. The researcher opines that if the ILO

Recommendation 119 of 1982 is implemented by member countries, especially Nigeria, it will

checkmate the incidence of employers hiding under the common law contract in terminating

the employment of their employee for good reason, for bad or for no reason at all. The

researcher further opines that contract of employment regulated by statutes or employment

with statutory flavor which provides that once it is shown that the termination or dismissal is

carried out without strict compliance with the statutorily prescribed procedure, such purported

termination or dismissal will be declared null and void, is in line with the ILO

Recommendations and Conventions. Naples65 observes that the Denovan Commission of the

United Kingdom Government66 in 1964 accepted Recommendation 119 as a basis for its own

formulation of the concept of unfair dismissal. However, under Recommendation 11(1) (2) of

the ILO standards for general application, in the case of dismissal for serious misconduct, “a

period of notice or compensation in lieu thereof need not be required, and the severance

allowance or other types of separation benefits paid by the employer, where applicable, may be

64
ILO are the Termination of Employment Convention 158 of 1982 and the ILO recommendation No 119 of
1982; <www.ilo.org/dyn/en/f?p+NORMLEXPUB:12100:0:NO::P12100_INSTRUMENT_ID132457> accessed 8
October 2023.
65
B. Naples, The New ILO Standards: Industrial Law Journal; ilj.oxfordjournals.org/content/12/1/17.FULL.pdf.
accessed 8 October 2023.
66

31
withheld”. It further recommends that “dismissal for serious misconduct should take place only

in cases where the employer cannot in good faith be expected to take any other course”.

Anushiem67 contends that there is the urgent need for Nigeria to domesticate the ILO standards

on unfair dismissal under the ILO Termination of Employment Convention. He further

contends that “the domestication of the Unfair Dismissal Standards will bring sanity into the

labor and industrial relations in Nigeria as this will checkmate, if not bring to an end, the

arbitrary exercise of power of the employer on the dismissal and termination for good, bad or

no reason at all”. The researcher opines that “any exercise of power by the employer of labor

that is devoid of reason is arbitrary and such arbitrary exercise of power is likely to lead to

economic crises, anarchy and recurrent industrial unrest. He therefore agrees with the author on

the need for Nigeria to domesticate the ILO Unfair Dismissal Standards.

The Constitution of the Federal Republic of Nigeria 1999 (as amended) 68 also provides as

follows:

(a) “all citizens, without discrimination on any group whatsoever,

have equal opportunity to secure adequate means of lively
hood as well as adequate opportunity to secure suitable
employment
(b) Conditions of work are just and humane, and that there are
adequate facilities for leisure and for social, religious and
cultural life
(c) the health, safety and welfare of all persons in employment are
safeguarded and not endangered or abused.
The African Charter on Human and People’s Right69 also guarantees every individual the right

to work under equitable and satisfactory conditions, and shall receive equal pay for equal work.

67
M. I. Anushiem,, Labor Law Review – NJLIR Vol. 8 No 1, 2014.
68
CFRN, s17(1)(3)(a)(b) under chapter II of the Fundamental Objective and Directive Principle of State Policy.
69
ACHPR, Art 15; <hrlibrary.uma.edu/instree/Z1afchar.htm.> accessed 8 October 2023.

32
The researcher sadly observes that this well-expressed provision of the Nigerian constitution

was made non justiciable. Because of the non-justice ability of the chapter II of the

Fundamental Objective and Directive Principle of State Policy of the Constitution of the

Federal Republic of Nigeria 1999 (as amended) most employers of labor, especially

government Agencies, hid under that to declare some employments redundant.

Looking at Chapter IV and Chapter II of the constitution 70, some entrenched rights such as the

right to dignity of human person, the right to fair hearing, the right to freedom from

discrimination can be said to have some specific regards to individual labor law and, on the

other hand, the provisions on the right to freedom of expression and the press and right to

peaceful assembly and association are examples of specific provisions significant to collective

labor law. Unlike the civil and political rights in Chapter IV of the constitution, the provisions

in Chapter II of the constitution 71, on social, economic and cultural rights, are non-justiciable

and therefore unenforceable. Ahmed and others72 states that “the Universal Declaration of

Human Rights (UDHR), 1948 gives equal recognition to both civil and political rights and

economic, social and cultural rights. Civil and political rights on one hand and economic,

social and cultural rights on the other are protected by the International Covenant on Civil and

Political Rights (ICCPR), 1966 as well as the International Covenant on Economic, Social and

Cultural Rights (ICESCR), 1966 respectively The civil and political rights cannot be

effectively realized without making the economic, social and cultural rights justiciable and

enforceable. Thus, the emerging trend is to constitutionally guarantee both sets of rights as is

the case in some countries like South Africa or render the economic, social and cultural rights

70
CFRN, 1999, ss34, 36, 39, 40, 42.
71
ibid, ss 16 – 24 , s 6(6) (c ).
72
A. B. Ahmed, Emerging Trends in Labor and Industrial Relations in Nigeria: International Journal of
Humanities and Social Sciences (September 2014) (4) (11)1.

33
justiciable and enforceable through creative legal reasoning where they are regarded not so

under constitutional arrangement like that in Nigeria as it is the practice in India. The learned

authors expressed their sadness over the reluctance of the Nigerian courts to allow the

justiciable and enforceable civil and political rights enshrined in Chapter IV of the constitution

to be so enforced through the Fundamental Rights (Enforcement Procedure) Rules when they

involve labor matters, as chain of cases indicates. This is because the facilities are not provided

by the statute and no action will lie in court as expressed under s6 (6) (c) of the constitution.

It is therefore recommended that this provision should be reviewed and made justiciable in line

with the African Charter on Human and People’s Right since Nigeria is a signatory and has

domesticated the convention. The researcher further recommends the need to introduce grants

to employees whose employment is terminated by reason of redundancy and the right to a

handsome payment for the loss of job as obtained in Britain under its Redundancy Payment

Act73.

2.3 Theoretical and Historical Foundation

2.3.1 Theories of Liability in Contract of Employment

Liability mean the quality or state of being legally obligated or accountable; legal

responsibility in another or society, enforceable by civil remedy or criminal punishment’ 74.

Theory of Law on the other hand refers to ‘the legal premise or set of principles on which a

case rest.75 Theories of liability would therefore, seek to discuss the legal principles guiding the

various forms of liability. The different theories of liability in contract of employment may

73
Redundancy payment Act 1965, s1.
74
B. A. Garner, (Ed) Black’s Law Dictionary, 17th edn (USA: West Group Publishers, 1999) p 925.
75
Ibid. p 1487.

34
therefore be: fault based, strict, personal/primary and vicarious. Details of the theories as can

be seen in the historical foundation of contract of employment are as follows:

2.3.2 Fault based theory in Contract of Employment

Here, liability is based on the fault and in the context of employer’s liability, it means that an

employer is liable for the injuries suffered by his employees, third parties or even the state

where such an injury was caused as a result of the employer’s willful default or negligence.

Here, the employer must, in all cases, be at fault. The employer must therefore, at all times take

the necessary care to avoid any accident the occurrence of which will inflict an injury to any

person. The question that may be posed is: how much care should a rational person and an

employer for that matter take to avoid an accident or injury to another person? Posner tries to

proffer a solution with an illustration.76 According to him, the Probability of the accident

occurring is represented by ‘P’ while the loss/injury, sustained is represented by ‘L’. The cost

of avoiding the injury or eliminating the possibility of an injury is represented by ‘B’ (which is

also referred to as Burden) if ‘B’ is smaller or less than ‘L’ multiplied by ‘P’ i.e. B < PL i.e. if

the employer fails to take the precaution and the accident/injury occurs, he is properly regarded

as being at fault. According to him, this is the negligence formula or theory propounded by

Learned Hand J. in 194777. This theory has now been recognized as an economic formula for

negligence.78

It should, however, be noticed that an injurer/employer may still be negligent if ‘P’ is low and

‘B’ low or ‘L’ high and even if ‘B’ is high and P and/or L also very high. 79 But an injury could

76
R. A. Posner, Frontiers of Legal Theory. (U.S.A: Havard University Press, 2001) p.37.
77
United States V. Carrol Towing and Co. 159 F 2d 169.
78
R. A. Posner op cit. p 37.
79
Ibid.

35
be deliberately inflicted and not accidently/negligently. Hand’s theory can accommodate this

too. This could simply be done by placing a minus sign in from of B i.e. (-B). Here, rather than

having to expend resources in order to avoid an injury i.e. (+B), the injurer expends resources

on inflicting the injury (-B.)

Here, ‘PL’ is always greater than – B and this should also be presumptly unlawful and the

employer thus liable.80

2.3.3 Strict Liability theory in Contract of Employment

Strict liability means liability that does not depend on actual negligence or intent to harm, but

that it is based on the breach of an absolute duty to make something safe. It is also termed

absolute liability or liability without fault. This pre-supposes that a person is liable without

necessarily being at fault. In the context of employer’s liability, it means that an employer may

be liable for the injury done to his employees, third parties and even the state without any fault

of his. Once an injury occurs, the employer is strictly and absolutely liable.

As has already been demonstrated in liability base on fault, an illustration here would also

clarify this theory more. If, for example a person keeps a tiger in his backyard for self-defense,

and the tiger gets out and bites a neighbor’s head off, it would be a case of a high ‘P’ and a

high ‘L’ and also a high ‘B’ if the person couldn’t have used greater care to keep the tiger from

getting out. But ‘B’ may even be low if viewed as the cost of having a tiger at all, of

substituting another method of self-protection. This is in fact a case where strict liability is

imposed, in order to induce potential injurers to consider making changes in the character or

level of their activity.81

80
Ibid at p. 38.
81
Ibid at pp 37-38.

36
At common law, the employer’s duty is a duty of care and it follows that the burden of proving

negligence rests with the plaintiff employee throughout the case. It has even been held that if

he (employees) alleges a failure to provide a reasonably safe system of working, he must plead,

and therefore prove what the proper system was and in what relevant respects it was not

observed.82 Where a statutory duty applies, for example, the Factories Act 83 on the other hand,

the employer’s duty is often absolute, so that no question of negligence arises at all, and even

where it is qualified by such words as “so far as reasonably practicable”, it is for the employer

to prove that it was not reasonably practicable to avoid the breach. It follows therefore that the

existence of a relevant statutory duty will also invariably ease the task of the employee in

establishing his employer’s liability. It has been submitted 84 and we also associate ourselves

with the submission that there is nothing intrinsically wrong with a system of law which

sometimes imposes liability upon an employer without requiring the employee to prove

negligence/fault. There may be several reasons for this; one of them being that the employer is

often seen as a stronger party who may be in a better position to compensate his employee in

such circumstances.

It can therefore be seen that even though the common law generally requires proof of

negligence as a condition precedent to liability, the legislature, in specific cases may modify

the common law and relieve the employee of this burden. Thus, the Factories Act and the

elaborate regulations made there under testify to the care with which the common law has been

altered, adjusted and refined in order to give protection and compensation to the employee. It is

therefore submitted that apart from imposing strictly liability in order to induce injurers to

82
Per Viscount Simon L. C. in Co/far V Coggins & Grifflh (1945) AC 197 at 203.
83
Cap F 1, Laws of the Federation of Nigeria, 2004.
84
W. V. A. Rogers, (Ed) Winfield & Jolowicz on Tort, 16th edn. (London: Sweet & Maxwell, 2003) p 198.

37
consider making changes in the character or level of their activity as stated by Posner, the

statutory modifications of the common law may be for the purpose of securing the maximum

protection for the employee against injury and rightly too.

2.3.4 Primary/Personal Liability theory in Contract of Employment

Primary liability is the liability for which one is directly responsible as opposed to secondary

liability, while personal liability is liability for which one is personally accountable for which a

wronged party can seek satisfaction out of the wrong doer’s personal asset.

The liability of an employer for the injury of his employees can be based either on the common

law rules or on the breach of statutory provisions. Liability at common law may be sub-divided

into vicarious liability for the tort of one employee committed against a fellow worker, and

primary liability of the employer himself under a non-delegable duty. It is this second aspect

that we are concerned with here, the first aspect will be dealt with later.

The classic exposition of the non-delegable duty theory was laid down in Wilson & Clyde Coal

Ltd v English.85 The estate of a miner sued his employers. The issue was whether the employers

were liable for the death of the miner since the employers had entrusted to a competent servant

the task of providing a reasonably safe system of working in the mine, which the servant had

failed to do. The House of Lords held the employers liable, not vicariously, but for the breach

of their non-delegable duty. The House Lords held the following terms:

(a) The employers were not absolved from their duty to take due care in the provision of a

reasonably safe system of working by appointment of a competent person to perform

that duty. Although the employers might, and in some events were bound to, appoint
85
[1937] All ER 628.

38
 someone as their agent in the discharge of their duty, the employers remained

responsible.

(b) The doctrine of common employment does not apply where it is proved that defective

system of working is a paramount duty, and, if it is delegated by a master to another,

the master still remains Liable.86

The exposition of this non-delegable duty theory is to be found in the 1’ – pronouncement of

Lord Wright87 duty, he said, is three folds: to see that reasonable care is taken to provide

competent staff, adequate materials and a proper system including effective supervision. To

these, a fourth is to be added, a safe place of work. It must, however, be noted that all these

categories are only aspects of the broad duty to see that reasonable care is taken. Details of

these aspects will be discussed under a different chapter.

It should also be noted that this duty of care is one to protect, so far as it is reasonable in the

circumstances, the employee’s physical safety and so should not be extended to include the

duty to save the employee from incurring economic/financial losses.

Thus, in Reid V. Rush & Tompkins Plc88 the Court of Appeal refused to hold that an employer

was under a duty to warn an employee posted overseas to take out personal accident issuance.

Here, an employee was involved in a hit and run traffic accident while working for his

employer is Ethiopia and was left uncompensated since the country had nothing equivalent to

motor Insurers Bureau.

86
Note that the doctrine of common employment was still in force in England and could be used by an employer
in appropriate cases as a defense. It was not until 1948 that the doctrine was abolished in England by the Law
Reform {Personal Injuries} Act 1948. The doctrine has also been abolished in the whole of Nigeria by S. 12 of
Labor Act Cap LI, LFN, 2004.
87
[Supra] at p. 642.
88
[1990]1 WLR212.

39
The responsibility as stated is personal to the employer in the sense that he is not relieved of it

even though he delegates performance to a third party, however competent, including an

independent contractor. What is personal, therefore, is not performance of the obligation, but

responsibility for bad performance, so that the employer remains liable for the breach of the

obligation89. In Mc Dermid V. Nash and Reclamation Co. Ltd. 90 Lord Hailsharn explained the

duty as follows:

A non-delegable duty does not involve the proposition that the

duty cannot be delegated… but only that the employer cannot
escape liability if the duty has been delegated and then not
properly performed. Thus, it is not enough to show that the
employer has personally taken care, for example, by engaging a
competent third party, he has to ensure that care is taken by that
party.

It must, however, be pointed out that, though this duty requires more than simply taking

reasonable care of oneself, it is not strict or absolute91. For in most cases, it is a defense to show

that proper care has been taken by everyone, the employer and the person engaged by him.

The non-delegable duty applies when the relationship of employer and employee exists. An

independent contractor employed to do a piece of work cannot rely on such a duty and sue his

employer. Furthermore, the duty is owed to each employee individually and, therefore, each

employee’s particularly circumstances, which are known or ought to be known to an employer

will determine the degree of precaution required. Thus, in Paris V. Stepney Borough Council, 92

an employer was held liable to his employee for not having provided him with goggles when

89
B. S. Markesinis, and S.F. Deakin, Tort Law, 3rdj0 (Oxford: Clarendon Press, 1994) p. 490.
90
[1987] AC 9O6 at 91O.
91
However, note the views expressed by Viscound Simnionds in Davie i New Merron Board Mills Ltd. [19591
AC 604 at 620 that at times “the subject matter may be such that the taking of reasonable care may fall little short
of absolute obligation”].
92
[1951] AC.367.

40
he knew that the employee had only one eye and was running a risk of greater injury in

consequence.

2.3.5 Vicarious Liability theory in Contract of Employment

In our discussion of this theory, we will be more concerned with the various theories of

vicarious liability rather than the detailed principles which will be discussed in a different

chapter. Vicarious liability means that one person takes or supplies the place of another so far

as liability is concerned93. In Ifeanyi Chukwu v. Soleh Boneh94 Ogundare JSC said:

The general principle of law which has its roots in the earliest
years of common law is that a master is liable for any wrong even
if it is criminal offence or a tortuous act committed by his servant
while acting in the course of his employment. This is what is
known as the doctrine of vicarious liability.

It should be pointed out here that vicarious liability is another instance of stricter liability in the

sense that the employer who is not at fault is made responsible for the employee’s default. 95 As

for the basis of the doctrine, there are various theories that have been advanced to justify the

doctrine, some of which have some air of fictions about them. Before the beginning of the 20 th

century, the view was widely held that the employer’s vicarious liability was based on the fact

that he had impliedly commanded his employee to do what he had done. This was also referred

to as the ‘control’ test which attributed to the employer the ability to control the behavior of his

employee and therefore, he should be vicariously liable.

In Duncan v Finlater96 Lord Broughan said “The reason that I am liable is this, that by

employing him, I set the whole thing in motion; and what he does, being done for my benefit
93
Launchburv v Mogans [1971] 2 QB 245 at 253.
94
[2000] 3 SCNJ 18 at 29.
95
Markesinis & Deakin op cit. p. 497.
96
[1839]6C1&F89at910.

41
and under my direction, I am responsible for the consequences of doing it”. Here, it can be said

that Lord Broughan base liability on an analogy with causation as well as the control test.

According to Lord Pearce,97 the doctrine is based on ‘social convenience and rough justice’.

While Lords Viscount Dithorne and Pearson in Launchbury v. Morgans98 rationalized that the

phrase qui facit per alium, facit per se correctly expresses the principle on which vicarious

liability is based. There is also the ‘deeper pocket’ justification which has economic overtones:

the employer is richer, so he should pay; which also suits the victim since the employer is in a

better position to pay than his employee.99 Another economic variant which closely follows

here is that the employer is in a better position to spread the loss through insurance or the price

of his products.100 Others attribute the basis of the doctrine to Public Policy: Thus, Sir John

Holt in Hern v Nichols101 (which is one of the earliest decisions on the doctrine) said seeing

somebody must be a loser by this deceit, it is more reasonable that employs and puts a trust and

confidence in the deceiver, should be a loser than a stranger”. The doctrine may also be based

on the maxim ‘respondeat superior’ which does not explain why the superior should answer; it

does not enshrine a principle, but announces rather a result namely that the employer ought to

pay.102

It may, therefore, be summed up that while it may never be possible or perhaps even desirable

to expound a general theory which will at once explain and justify the basis of the doctrine, it

has now been firmly established that the employer’s liability is based, not on the fiction that he

97
I.C.I Lid v Shatwell [1965] A.C. 656 at 685.
98
[1973] AC. 127 at 140.
99
This is an inference from Alderson B in Huichinson v The York New Castle and Bervick Co. [1850] 5 Exch.
343.
100
Markesinis & Deakin op cit. p. 497.
101
[1700] 1 Salk 289.
102
J. K. Suth Eastern Fire. Area Joint Co,n,nitiee [1952j SC 280 at 287].

42
had impliedly commanded his employee to do what he did, but on the safer and simpler ground

that it was done in the course of his employment.103

The areas of conflict in the laws regulating trade disputes are occasioned by the statutes

especially Section 17 (1) which prohibits an employer from declaring or taking part in a lock

out as well as a worker to take part or declare a strike action in connection with an existing

trade dispute, where an attempt has been made to settle the dispute through internal dispute

resolution machinery and this fails, through a mediator, conciliator or where a dispute has been

referred to 1AP and NIC104

A Scrutiny of this section shows that the Act virtually bans strikes and lockout from our

industrial relations system. In other words, the right to strike is highly circumscribed. One

would be forced to ask-do workers have a right to strike in Nigeria? In the leading case of

Crofter Harris Tweed Co. Ltd v Veithch 105, Lord Wright said, "the right of workmen to strike is

the essential element in the principle of collective bargaining. It is also a necessary sanction for

enforcing agreed rules.106 In the light of this section 42 of the Trade Unions Act, Cap 437 is

completely inconsistent with section 17 of the Trade Disputes Act. It would amount to

approbating and reprobating, for instance, according to section 42 of the Trade Union Act, for

picketing to arise, the act which is forbidden by the new section 17 of the Trade Disputes Act

must have been committed-the part which refers to "peacefully persuading any person to....

from working" operates as an outright violation of section 17 of the Act.

103
R.F.V. Heuston and R.A. Buckley (eds) Salmond on the Law of Tonrts, 20th edn (London: Sweet & Maxwell
Ltd, 1992) p. 444.
104
Supra.
105
(1942) 1 ALLER 142 at 146.
106
Ibid.

43
However, the ongoing conflict has been remedied by the suspension of section 31 and 32 of

Trade Disputes Act No. 7 of 1976 (Now section 40 and 4l of the Trade Disputes Act Cap 432)

during the legal regime of section 9(2) of Trade Disputes (Essential Service) Act No. 23 of

1976. Under the new section 40 and 41 of the Trade Disputes Acts were suspended which

requires workers’ inessential services to give the specified notice before going on strike is not

to negative the main objective of section 13 (Section 17) of the principal Act.

44
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