Whether a contract of employment has been validly determined depends on the express and implied terms of the contract. Where a contract has been terminated in accordance with it’s terms, the termination is valid. Conversely, it is invalid, and therefore wrongful, to terminate an employment contract in breach of its terms1.
Wrongful termination, also called wrongful dismissal or wrongful discharge, is an idiom and legal phrase describing a situation in which an employee’s contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statutory provision in employment law.
It follows that the scope of wrongful dismissal varies according to the terms of the employment contract. Note that the absence of a formal contract of employment does not preclude wrongful dismissal in jurisdictions in which a de facto contract is taken to exist by virtue of the employment relationship. Terms of such a contract may include obligations and rights outlined in an employer’s handbook.2
Wrongful dismissal is a termination in breach of the express or implied mode, for determination of the contract of employment. The court of law in the case of Registered Trustees Of The Planned Parenthood Federation Of Nigeria v Shogbola3 held as follows:
“Except in employment governed by the statute where in the procedure for employment and discipline including dismissal of employment are clearly spelt out, any other employment outside the statutes is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in the way and manner presented by the relevant statutes and any other manner of termination inconsistent there with is null and void and of no effect. But in other cases governed only by agreement of the parties and not by statute, removal by way. of termination of appointment or dismissal will be in form agreed to. Any other form connotes wrongful termination or dismissal but not to declare such dismissal null and void.”
Thus, if a contract is for a fixed term, or expressly stated to be terminable only in certain ways, and it is terminated before the term
expires or in an improper way, that may be a wrongful dismissal.
More typical instance, is the case where the employer dismissed the employee with no or inadequate notice, or purport to dismiss him/her
for cause where the facts did not justify such action. This common law action for wrongful dismissal entails an examination of substantive merit of dismissal4.
Moreover, there are three circumstances in which dismissal can occur in any of them:
i)         Termination of the contract by the employer with or without
ii)        Constructive dismissal i.e. implied or indirect dismissal.
iii)       A non-renewal of a fixed term contract.
A         Termination Of The Contract By The Employer With Or Without Notice.
There is no doubt that either party to a contract of employment has a common law right to bring the contract to an end by the other party. A contract of an indefinite duration is determinable by notice where so provided, or, alternatively, by reasonable notice. It is also determinable by death (of the employee) or at retirement age.5 But if it was a contract of definite (fixed) duration, it is a fixed term contract.
            Where a contract of employment provides impliedly for a length of notice that may be given to terminate it, that length of notice will be regarded as a reasonable notice. And where the stipulated notice is given, the party given the notice cannot be heard to complian7. In Chioze v United African Company Ltd8, the contract provided for one-month notice on either side to terminate it and also, that where an employee was suspected of serious misconduct, he could be suspended pending the completion of investigation. When the plaintiff was arrested and charged with stealing from the employer, he was given one month’s salary in lieu of notice. His contention that he ought not to have been removed before the conclusion of the criminal charge was held to be baseless.
b)        Constructive Dismissal i.e. Implied Or Indirect Dismissal.
The employee terminates the contract with or without notice, in the circumstances, such that he is entitled to terminate it without notice by reason of the employer’s conduct (apart from the case of redundancy payment claim, from an employer lockout).
The group of situations comprehended within this heading has come to be commonly called constructive dismissal. It was incorporated in the Redundancy Payment Act 19659a for the obvious reason that, without it, an employer might have appeared able with impunity, to force an employee to leave his employment without the
employer terminating the contract. The Industrial Relation Act9b, 1971, introducing a remedy for unfair dismissal, however, did not include this heading and it was made clear in Parliamentary debate that this was no oversight but that the government did not intend to extend the right to unfair dismissal to an employee who left in such circumstance10a. Nevertheless, in Sutclffe v Hawker Siddele Aviation Ltd10b, Sir John Donaldson describes as ‘academic pedantry’ the suggestion that the statutory concept of dismissal for the purpose of claims for unfair dismissal was not intended to include this situation. He pointed out that the then effect of a repudiatory breach of the contract would be that the contract was automatically terminated. Accordingly, it could be argued that at common law, where an employee left in response to a repudiatory breach by the employer, it was the employer who has terminated the contract. It would not now be so easy to deduce a constructive dismissal from a common law doctrine but the view in Sutcliffe ‘s case, to which objection could not then be taken, served its turn until statute made express jrovision for it in 1974. Incidentally, whilst common law was the support for the doctrine of constructive dismissal, there could be no question that the action of the employer has to constitute a repudiatory breach of the contract.11
c)         A Non Renewal Of A Fixed Term Contract.
Where under the contract he is employed for a fixed term, that term expires without being renewed under the same contract, the contract is held to have come to an end. A fixed term contract exists where a period of time is specified for its operation. Reference need not be made to the actual dates so long as fixed dates are implicit12. The effect of the fixed term is not destroyed by provision for earlier termination notice,13  or by the fact that the work contracted for may end earlier.14 In the case of fixed contract alone, the employee can waive his right to claim for unfair dismissal or redundancy if the term is for two years or more and the employee agrees to the waiver in writing15
In the case of Co-Operative And Commerce Bank v Okonkwo16 Akpabio JCA stated, while distinguishing between unlawful termination and wrongful termination of employment:
“Termination is unlawful where employment protected by statute or contract with statutory flavor is improperly terminated while any other employment which is usually contractual in nature is wrongfully terminated. In addition while the remedy for the former is reinstatement, the remedy for the latter is damages measurable according to the terms of the employment.”
It is trite law that where a contract of employment has been terminated properly, the motive or intention that actuated the termination is irrelevant 17Thus in Sogbeturn v Sterling Products Ltd18, the plaintiffs appointment was validly terminated by one month’s salary in lieu of notice. The plaintiff contended that the termination was wrongful since it was motivated by her refusal to succumb to sexual advances to her employer. Dosunm J, in reiterating the well settled law that motives is immaterial when termination is valid, stated:
“Where an employee lawfully dismissed by being given the notice or payment in lieu of notice stipulated in the contract of employment, the employer’s motive in dismissing him is irrelevant, and the fact that the employer has a bad motive or gives an untrue reason does not make a dismissal wrongful.19

Wrongful Termination And Contract Of Employment.
Contract of employment is that type of employment where two parties- the employer and employee have reached an agreement to get one party employed (employee) and remunerated for the services rendered to the employer. Before the existence of this contract, the parties thereto must have agreed on contractual terms. It then suggests that the parties are to be guided by those terms that they have assented to. In a situation where by dispute has arisen, which is often experienced when the terms of the contract are not strictly ad held to, such could be wrongful termination if the breach resulted to the termination of employee’s contract of employment. Where the termination of the contract is based on the allegation of a crime, the criminal culpability must be established firstly before the termination.
Thus, in the case of Strabag Construction Nigeria Ltd v Adeyefa,20 the court held:
“Where the termination or dismissal or retirement of an employee by his employer is based on allegation of the commission of a criminal offence by the employee, the employee’s appointment cannot be terminated in any manner without first establishing the criminal culpability or otherwise of the employee.”
Where an employee’s employment and termination are not subjected to or regulated by statute, the relationship subsisting between the employee and the employer is the simple common law relationship of master and servant. The determination of such contract, even if unlawful, brings to an end such contract of service, this is because, a master cannot be foisted on an unwilling servant, just as a servant cannot be compelled to remain in the service of the master after he has given his letter of resignation. This was illustrated in the recent case of Jimoh Ikhile v Federal Airport Authority Of Nigeria21, where the court opined:
“Whether the relationship of master and servant is conditioned by statute or common law rules or both, the master may terminate the contract with the servant at any time for any reason or for no reasons at all.”
This goes to suggest that although, in contract of service, the master is in breach of the terms of the contract, and the employee is only entitled to damages. In contract of employment, where the employer wrongfully terminates the contract contrary to the terms of the agreement, he is not entitled to general damages as in tort but to what he would have earned over a period required to lawfully terminate his employment22
Also in the case of Registared Trustees Of The Planned Parent hooh Federation Of Nigeria v Shogbola,23 the court held:
“The court will grant declaration that a contract still subsists only in rare or special circumstances and where the employee enjoys special status or office by virtue of statute. In the instant case, the employment does not enjoy special status.’ 

Statutory Contract Of Employment And Its Enforcement.
In contract of employment, where there is failure to comply with the rules of natural justice in terminating employment of an office holder or where the tenure of public officer has been terminated contrary to statutory provision, such termination is unlawful. The employee is entitled to damages or declaration and injunction.24 Thus in the case of Haruna v Uniagric Makurdi,25 Obadina, JCA, stated, inter alia
“Non compliance with the provisions of a statute which form the bedrock of any decision relating to the discipline and termination of the employment of an employee is fatal to any decision or termination of the employment undertaken by the employer. In other words, the only way to legally terminate an employment, the terms of which are regulated by a statute, is to adhere to the provisions of the statute.”
In the instant case, the respondent did not fuliy comply with the provisions of s. 15 and 16 of the Universities Of Agriculture Decree No 48 of 1992, which regulates the discipline and termination of the employment of a senior staff of the first respondent; and this was fatal to the termination of the appellant’s employment.
By virtue of the terms of employment of the appellant shown in exhibit 5 and the Incorporation Decree 48, the employment of the appellant transcended the ordinary master and servant relationship. It is an employment with statutory flavor as rightly submitted by the
appellant. It can only be determined in accordance with relevant statute.
An employment is said to have a statutory flavor when the employment is protected by statute and this occurs where appointment is governed by statute.26
Similarly the Court of Appeal, in the case of Registered Trustee, PPFN v Shogbola27, upheld similar view. In that case, the respondent was appointed the Lagos State manager of the 1st appellant by a letter dated 8 January 1993 with effect from 1st February 1993 on probation for one year, and subject also to the 1st appellant’s staff handbook..
During the probationary period, the respondent was by a letter of 20th December 1993 appointed a member of a standing committee for two years from January 1994. Before the expiry of the probation period, almost at the tail end of it, the appellant served on the respondent a month’s notice from 17th January 1994 to expire on 16Ih of February. 1994.
The respondent as a result of the termination of his appointment instituted an action in the High Court of Lagos State against the appellant, claiming, amongst other things, to be reinstated. The Court in a reserved judgment found that the termination of the appointment of the respondent, who was a public officer, was ultra vires and therefore granted the respondent’s claim for reinstatement.
Dissatisfied with the judgment of the trial Court, the appellant appealed against it to the Court of Appeal. The court held
(unanimously allowing the appeal) that:
“Where there is a failure to comply with the rules of natural justice in terminating contract of employment of an office holder or where a tenure of public office attaches to a contract of service, the dismissal is ineffective to determine the employment relationship and the employee is entitled to a declaration to that effect and damages and injunction may be granted.”
In a contract of employment which is of the ordinary nature other than one with statutory flavour where the terms provide for a length of notice being given before termination or salary in lieu thereof the only remedy an employee who has his appointment wrongfully terminated can get is that period’s salary in lieu of notice and any other legitimate entitlement to which he may be entitled at the time the employment was put to an end. The measure of damages, therefore, will be the salary that the employee would have earned during the period of notice28.
 In distinguishing employments with statutorily flavor and mere master/servant relationship, the court of appeal in the case of Adeniran v National Power Authority, stated inter alia:
“Except in employment governed by statutes where the procedure for employment and discipline (including dismissals) of an employee are clearly spelt out, any other employment outside the statutes is governed by the terms under which the parties agreed to be master and servant. Employment with statutory backing must be terminated in a way and manner prescribed by the statutes, any other manner of termination inconsistent with the relevant statutes is null and void and of no effect. In other cases governed by agreement of the parties and not by statutes, removal by way of termination of appointment or dismissal will be in the form agreed to. Any other form connotes only wrongful termination or dismissal but would not lead to
such a dismissal null and void. The only remedy for such a plaintiff is a claim for damages for that wrongful dismissal. This is based on the notion that no servant can be imposed by the court on an unwilling master even where the master’s behavior is wrong.”

1 Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department Of Public Law And Jurisprudene Ogun State. (1st ed) 2001, p 75
2 Wikipedia, The Free Encyclopedia (
3 (20040 11 NWLR (Pt 883) I C.A
4 Smith & Wood’s, Industrial Law, Butterworths, London Dublin. 6th (ed) 1996) P 310.
5  R V The Inhabitations Of Bird Brook (1719) 4 Term Rep
7 E E Uviaghara, Labour Law In Nigeria, Malthouse, Lagos Nigeria 1st (ed) 2001 P. 54
8 (1956) 1 ERLR 28
9a  Laws of England (English Statutes)
9b Laws of England (English Statutes)
10a Rodger’s Principle Of Labour Law, Sweet and Maxwell, London 5th (ed) 1989, P. 134
10b  (1973) ICR 560
11 Rodger’s Principle Of Labour Law, Sweet And Maxwell, London 5th (ed) 1989, P. 134
12 Wilshire Country V Naffhe (1980) ICR 455
13 BBC v Dixon (1979) ICR 281
14 Wilshire County Council v Naffhe (1980) ICR 455
15 Rodger’s Principle Of Labour Law, Sweet And Maxwell, London, 5th (ed) 1989 P 134
16 (2002) ALLFWLR (Pt 67) P 637 @ 640
17 Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department Of Public Law And Jurisprudence Ogun State. 1st (ed) 2001, p 75; Agbo v CBN (1996) 10 NWLR (pt 478) 370.
18 (1973) NCLR 323
19 Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department Of Public Law And Jurisprudence Ogun State. 1st (ed) 2001 p 87
20 (2001) FWLR (Pt 60) P. 1538 @ 1542.
21  (2003) FW:R  (Pt 181) P. 1726 @ 1731
22  (2003) FWLR (Pt 181) P. 1726 @ 1731
23 (2004) 11 NWLR (Pt 883) P. 1 @ 5.
24 Registered Trustees, PPFN v Shogbola (2004) 11 NWLR (Pt 883) P. 1 @ 6
25  (2005) 3 NWLR (Pt 912) 233 C.A
26 Fakuade v OAUTH (1993) 5 NWLR (Pt 291) 47
27 (2004) 11 NWLR (Pt 883) P 1 @ 6.
28 Osiyemi vSociete General Bank Ltd (2001) 11 NWLR (Pt 725); Ibrahim Geidam v NEPA 92001)2 NWLR (Pt 696) P. 45 @ 49
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