Once a valid contract has been made, there are certain rights, duties and obligations on the side of both parties, but these depend on the terms of the contract. Where no express terms have been agreed upon, Frank (1975, p. 121) has identified a number of terms that will apply. These are that:
(A) The Servant must:
1. render his services personally and not by a substitute
2. exercise reasonable care in the execution of the employer’s orders and indemnify the employer if causes any damage to his interests through his negligence
3. maintain loyalty to his employer by not disclosing confidential information acquired during his employment
4. account to the employer for anything received on the employer’s behalf
5. carry out all lawful orders given by the employer.
(B) The employer on his part must:
1. pay the servant the agreed wage/salary, and if no wage has been agreed but the service was not intended to be an unpaid one, a reasonable wage
2. indemnify the servant against any liabilities which he may have assumed on the employer’s behalf in the course of his employment (vicarious liability)
3. make reasonable provision for the employee’s safety by ensuring that the method of work to be followed, the equipment to be used, and the premises on which work is permanently conducted are reasonably safe for their purposes.
170
(C) The employer may terminate the contract of service in any of the following ways:
1. He may give notice. The period of notice is that agreed upon, and if none has been agreed, it will have to be that which is customary for the employee’s occupation. In the absence of any custom, reasonable notice must be given.
2. He may give the employee his wages for the period in lieu of notice and make the employee leave at once.
3. He may dismiss the employee summarily if the employee has been guilty of something which constitutes a total breach of his contract.
(D) The employee may terminate his contract by giving notice on the same terms as given in (1) above in Section C. Under the Contract of Employment Acts the minimum notice which the employee has to give ranges from one or few weeks to three months, depending on the level of the member of staff and the length of his employment. He may also leave his employment summarily if the employer has been guilty of a total breach of contract. He may not leave his employment summarily by paying his own wages in lieu of notice.
A number of decided court cases cited by Peretomode (1992) in Nigeria relating to the school/education system will make more explicit the requisite elements of a valid contract and other principles discussed in this unit.
In the case of Mrs. Onwuachi v. The American International School, Lagos (1975), the defendant prematurely terminated the contract of the teaching employment of the plaintiff before the due date of performance, even after the contract had been signed and accepted by the plaintiff.
The trial judge decided the case in favour of the plaintiff and held that the plaintiff was entitled to recover, by way of damages an amount of money which could have been her earnings had the breach of contract never been committed. The judge pointed out that it had been an established law that revocation of a contract is possible and effective at any time before acceptance, because up to this moment, no legal obligation exists. But in this present case, the plaintiff, Mrs. Onwuachi, successfully proved all the elements of a valid contract, including assent and consideration, and the judge decided the case in her favour. She was awarded costs.
In E.A. Oyedeji v. J.O. Fasheun (1976), the plaintiff, Oyedeji, who was employed as principal of Ebenezer Grammar School for a period of
171 three years (from 1st April, 1971), had his appointment terminated on 10th July, 1973, by the defendant who is the proprietor of the school on the ground that he (the plaintiff) left the school without permission.
The plaintiff then brought action against the defendant for special and general damages for wrongful termination of appointment from the defendant’s service. The defendant submitted that the contract between him and the plaintiff was void because there was no evidence to show that the plaintiff accepted the offer of employment from the defendant.
After reviewing the facts of the case, the judge dismissed the defendant’s case and held “that where no particular mode of acceptance of a contract is expressly required, performance of a condition in the contract is evidence of acceptance”, and there was judgement for the plaintiff.
In another illustrative case, Joseph M. Okoroafor v. The Imo State Education Board and Mrs. C.C. Nwosu, Principal, Girls’ Secondary School, Ogbaku, the plaintiff worked as a casual labourer in the defendant’s school.
The plaintiff and other applicants were referred to and selected by a domestic organisation and recommended to the principal who would in turn make formal presentation of the successful applicants to the 1st defendant, the Imo State Schools Board, for possible employment.
After working for a period of eighteen months, he was stopped as the Schools Board gave employment papers to five of the men. Three of them, including the plaintiff, were not successful.
The plaintiff then brought an action against the defendant for:
(a) eleven months’ pay
(b) one month’s pay in lieu of notice, and (c) general damages for wrongful dismissal.
In his ruling, amongst others, the judge opined “that for a contract to be valid in law, there must have been a definite offer by the offeror and a definite acceptance by the offeree.” In the case before the court, nothing which could be described as a service agreement was tendered.
In such circumstances, the judge does not see any basis for allowing of claim for one month’s pay in lieu of notice, for wrongful dismissal and for salary until judgement is delivered.”
172
Finally, in the case between Kpebimoh and the Board of Governors, Western Ijaw Teachers Training College (1969), the plaintiff who got a contract for the building of one dormitory block brought an action against the defendants to recover balance of payment for work done under the building contract and damages for breach of contract.
The plaintiff agreed to erect and furnish a building for the defendants at an agreed price. When it appeared after the work had begun that the price was inadequate for what the defendants required, they agreed to increase it by an amount to be determined, and the plaintiff went on with the work and incurred expenditure exceeding the agreed price.
The new price was never agreed between the parties and the defendants refused to pay the amount expended by the plaintiff in excess of the agree price and withheld the report of an expert who had valued the work for them. The plaintiff did not complete the contract, and the defendants occupied the building, paid the plaintiff the agreed price, and terminated the contract.
The plaintiff instituted the present proceeding claiming a balance of payment for the value of work done for the defendants at their request, and damages for breach of the building agreement.
The plaintiff contended that he was entitled to recover his expenditure on the uncompleted work and the profit he would have made had the work been completed. The defendants contended that the plaintiff could not recover anything for the incomplete performance of the contract, which was an entire contract.
The presiding Judge, OVIE-WHISKY, held that an aggrieved contractor is entitled to any balance of payment for the work he has been prevented from doing. Judgement was entered in favour of the plaintiff against the defendant for the sum of £1,415, being special and general damages for breach of a building contract.
(1) Contract – Contract of Employment – Whether Unwritten Acceptance of Offer voids the Contracts – Wrongful Termination of a Principal’s Employment
E. A. OYEDEJI v. J. O. FASHEUN
High Court of Ogun State, Abeokuta Judicial Division (Odunsi, J., 31st March, 1976), Suit No. AB/90/73.
SOURCE The University of Ile-Ife Law Reports Volume 6 Part 1, pp.
134 – 141.
173 FACTS
The plaintiff was employed as the Principal of Ebenezer Grammar School for a period of three years from 1st April, 1971. On the 10th July, 1973, the defendant who is the proprietor of the school terminated the plaintiff’s appointment on the ground that he left the school without permission.
It would appear from the evidence that the immediate cause of the defendant’s action was the plaintiff’s absence from duty, when he went to Ile-Ife to take part in the marking of the 1973 West African School Certificate Examination scripts. According to the plaintiff, he received a letter dated 15/6/73 addressed to Principals of Secondary Schools by the Western State Ministry of Education, stating that teachers who were markers of the school certificate examination scripts be released to the West African Examinations Council. He himself had been appointed a team leader for the exercise, according to a letter from WAEC. On receipt of the WAEC’s letter, the plaintiff wrote a letter to both the defendant and the chairman of the school’s Board of Governors asking to be allowed to take part in the marking exercise. The plaintiff delivered a copy of the letter to the said chairman the same day. He delivered that of the defendant to him the next day on the defendant’s return from a trip in Lagos. The defendant permitted him to go. The plaintiff also advised his deputy, Mr. Isola who was also invited to the marking exercise to submit a written application to both the defendant and the chairman, Mr. Odebela, and Mr. Isola did so and travelled to Ile-Ife accordingly.
When the plaintiff left for Ile-Ife on the 2nd July, 1973, he (Mr. Isola) made an entry in the school’s log book. Before the plaintiff left for Ile-Ife, promotions had been concluded for the year and the staff had met and decided who and who were to be promoted. He also had asked one Mr. Adegboye a relation of the defendant who was a graduate teacher in the school to take charge of the school in his absence (NB: The thoroughness of the plaintiff in this paragraph to avoid any likely charges of having not completed his school assignment before he left for Ile-Ife or any charge of incompetence). The plaintiff returned to the school for a night on July 7, to put finishing touches to preparations for end of session activities, went back to Ile-Ife on the 8th July, and finally returned to the school on July 10, before the school vacated on the 12th July.
The defendant in a letter dated 7th July, 1973 purported to terminate the plaintiff’s appointment on 10th July, on the allegation that the plaintiff absented himself from duty without permission.
174
The plaintiff then brought this action against the defendant for the sum of N5,000.00 being special damages, the salaries he would have earned from 1st July, 1973 to 31st March, 1974 (when his contract was due to expire) and general damages for wrongful termination of appointment from the defendant’s service. The defendant submitted that the contract between him and the plaintiff was void because there was no evidence to show that the plaintiff accepted the offer of employment from the defendant.
HELD
That where no particular mode of acceptance of a contract is expressly required, performance of a condition in the contract is evidence of acceptance.
There was judgement for the plaintiff in the sum of N2,722.40 made up as follows:
(A) Difference in salaries due from the defendant and those earned
from the Central School Board N 662.40
(B) Annual central allowance for three years N1,500.00
(C) Car basic allowance N 360.00
(D) General damages N 200.00
Plaintiff’s claim succeeds.
(2) Claims for Damages for Wrongful Dismissal – Payment of arrears of Salaries – Contract Law JOSEPH M. OKOROAFOR Plaintiff
v.
1. IMO STATE EDUCATION BOARD
2. MRS. C. C. NWOSU, Principal, Girls’ Defendants Secondary School, Ogbaku
High Court of Imo State, The Owerri Judicial Division Holden at Owerri (Nwogu, E.I.N.) 26/287 Suit No. How/265/82.
The case has been cited under 3.1.7. in this Unit. You may refer to it.
(3) Civil Procedure – Juristic Person – What happens if a Party to an Action is not a Legal Person – How an Unincorporated Association can be given Legal Personality – whether the Board of Governors of a School is a Juristic Person
175 THE BOARD OF GOVERNORS, OLOFIN
ANGLICAN GRAMMAR SCHOOL, IDANRE v.
S. A. O. AINA AND OTHERS
(High Court of Ondo State, Akure Judicial Division, Orojo, J., 13th July, 1976) Suit No. AK/31/72.
The case has been cited under 3.1.7. in this Unit. You may wish to refer to it.
(1) For a Contract of Employment to be Valid, there must be evidence of Offer and Acceptance
PHILIP IHEMEBIGE v.
IMO STATE EDUCATION BOARD & 1 OTHER
(High Court, Owerri, Justice N.N. Wachukwu – 9/4/84, Suit No.
HOW/264/82) JUDGEMENT
In his particulars of claim, the plaintiff claimed as against the defendants jointly and severally the sum of N2,771.68 which he said represents his arrears of salary from February, 1981 to December, 1981 at the rate of N147.64 per month; one month’s salary in lieu of notice and that is N147.64 and another sum of N1,000.00 which he described simply as
“wrongful dismissal”, whatever that means.
Plaintiff claimed that the Ogbaku Projects Interim Committee recruited himself and seven other persons to work for the Girls’ Secondary School, Ogbaku on the 16th of February, 1981 as night watchmen. He also claimed, in his evidence in court that he was also employed by the 2nd defendant as a night watchman and that he received some of his salaries from the 2nd defendant except for the period which is subject matter of this suit. He said he was later dismissed by the 2nd defendant except for the period which is subject matter of this suit. He said he was later dismissed by the 2nd defendant and that he was never issued with any employment papers.
Plaintiff’s witness Michael Iheme confirmed plaintiff’s story that plaintiff was initially recruited by the Ogbaku Projects Interim Committee and handed over to the 2nd defendant for service. He also confirmed that the Committee pressurised the 2nd defendant to ensure that the Education Board employed the plaintiff. Witness said that as a result of the pressure, five out of the seven men the Committee sent up
176
to the Board for employment were employed. The 2nd defendant who is the Principal of the Ogbaku Projects Interim Committee for onward transmission to the Board for employment. She said the plaintiff was not one of those whose application succeeded.
I think it is now well settled that for a contract of employment to be valid and indeed any other contracts, there must be an offer and acceptance. This means that there must be a definite offer of employment and also a definite acceptance of that offer. See Ajayi-Oba v. The Executive Secretary, Family Planning Council of Nigeria (1975) 3 SC. p. 1. there is agreement between the parties that the authority that could employ the plaintiff was the 1st defendant.
There is also agreement that this body did not offer any employment to the plaintiff and that plaintiff never worked for it as an employee.
Indeed, the plaintiff told this court that he was recruited by the Ogbaku Projects Interim Committee and employed by the 2nd defendant.
Though the general law is that a contract of employment may be in any form, that is, that it may even be oral, the provision of Section 4 of the Statute of Frauds 1677, which is still applicable in Imo State, makes it mandatory that a contract of employment must be in writing since it falls into the group of contracts not to be performed within one year. The plaintiff has not established any contract of employment on the basis of this well-established principle of law and this court cannot assume employment on the mere ipse dexit of the plaintiff.
Plaintiff has not discharged the burden placed on him to prove employment and his claim ought therefore to fail. It is accordingly dismissed with no order as to costs.
(2) Contract of Employment – Wrong Dismissal – Fair Hearing
MRS. D. AWUNOR Plaintiff
v.
1. THE TEACHING SERVICE BOARD 2. THE PRINCIPAL, EZEMU GIRLS’
GRAMMAR SCHOOL, UBULU-UKU Defendants 3. THE ATTORNEY-GENERAL,
BENDEL STATE
(High Court, Ogwashi-Uku, Bendel State, NWAKE, B. A.) Suit No. 0/6/89
177 FACTS
The plaintiff, Mrs. D.N. Awunor who hails from Obior in Ika Local Government Area of Bendel State has been a teacher since 1976 and was employed to teach at the Ezemu Girls’ Grammar School, Ubulu- Uku at salary level 07 being the salary rating for NCE holder; which she possessed.
On 14/10/88, her appointment was terminated as contained in the letter presented to her by the 2nd defendant, the principal of the school. The plaintiff claimed that the termination of her appointment has deprived her the various allowances, her salaries, bonuses, her pensions and gratuity she would be entitled to if allowed to work to retiring age. The plaintiff in effect made the following claims:
(a) a declaration that her termination is wrongful, ultra vires, void and of no effect.
(b) a declaration that the plaintiff was not given a fair hearing before her termination.
(c) N100,000.00 (One hundred thousand naira) being special and general damages for wrongful termination of her appointment against the defendants jointly and severally.
At various hearings it was discovered that the 1st defendant, the statutory body charged with the employment, promotion and discipline of teachers within the Teaching Service Board, was unable to put forward, a specified period that the plaintiff carried out the fraudulent act of adjusting her salary from level 07 step 3 to 07 step 6 which eventually led to the termination of her appointment as the letter of termination contained.
During the course of the trial, it was also discovered that the plaintiff was not duly involved in the activities of the panel that tried her. The court however recognizes the right of the Teaching Service Board to employ, promote, transfer and discipline teachers.
Going through the verdict of the panel that tried the plaintiff, it was also discovered that the plaintiff indulged in the act under which her appointment was terminated.
JUDGEMENT
The evidence before this court shows that the plaintiff was not given a fair hearing. Where a board decides to terminate the appointment of any teaching staff, the Board is duty bound to adhere to the law creating the Board otherwise such action can be described as null and avoid and
178
unconstitutional (Eperokun V. Unilag (1985) 4 N.W.L.R. (pt. 34) 5 162 applied (p. 618 paras C.G.).
In the case before this court, the defendants had failed to comply with the terms that established the Teaching Service Board, it therefore follows that the plaintiff’s termination was unlawful, null and void, wrongful and unconstitutional.
The court therefore rules that the plaintiff is entitled to her salaries and other entitlements from the date of termination up till the date of judgement.
The court also orders that the plaintiff be transferred from Ezemu Girls’
Grammar School to any other school within the jurisdiction of the Board (Shitta-Bey v. Federal Civil Service Commission (1981) 1 SC. 40 referred to, followed and applied).
(3) Wrongful Dismissal of a Teacher – Allegation of Forged Certificate
ABIGAIL P. AKOR Plaintiff
v.