The contract of employment deals with the relationship between an employer and employee. This contract, that is also called a contract of service, is markedly different from a contract for services, under which an independent contractor is engaged28.
A contract of service must be distinguished from a contract for services. In a contract for services a person engages another called an independent contractor to carry out a specific kind of work. Under this contract, the employer has no power to control the manner of execution of the work29.

In Flash Fixed Odds Ltd v Chief J 0 Akatugba30, the court clearly pointed out that an employee could not be an independent contractor. In that case, the court opined:
 “A person under the employment of a company or enterprise cannot in law be an independent contractor.”
In a contract for services, the independent contractor is responsible for the final result, which he has agreed to achieve, but he is not under the control of his customer-employer with regard to the method, he employs in achieving it. In other words, the independent contractor is neither directed nor controlled on how best to achieve maximum efficiency and expertise; rather, he performs his job as o professional, while the employee who is on contract of service is controlled and directed. Thus, in Collins v Herts County Council31, Hilbery J, said;
“The distinction between a contract for service and a contract of service can be summarized in this way: in the one case the master can order or require what is to be done, while in the other case, he can not only order or require what is to be done but how it shall be done.”32
The relevance of the distinction between a contract of service and a contract for services is based on the fact that an independent
contractor cannot enjoy the rights and privileges of a servant or worker. The employer is not generally responsible or liable for the acts of his independent contractor.
The courts have had to distinguish between employees and independent contractors in the following ways:
i)         At common law, an employer is vicariously liable for the civil wrongs (torts) of his employees but not, generally, for those of independent contractors.
ii)        Statutes such as Labour Act Cap 198, the Workman’s Compensation Act, Cap 470, afford legislative protection to certain class of employees that do not apply to independent contractors.
iii)       Although an employer owes, at common law and under statutes’33 a general duty of care to lawful visitors to his premises, he owes to his employees at common law a personal duty of care, which is a duty to take reasonable care for the safety of his employees in the course of their employment.
1v)      Employers deduct income tax under the PAYE (Pay As You Earn) system, from the wages or salary of employees; independent contractors or self-employed persons pay their tax under a different method.34
2.6       Vitiating Elements Of Contract Of Employment
i)         Illegality Of Contract
Any contract, including a contract of employment, which has any object, which is contrary to a statute or the common law or even public policy, is illegal, must be void, and normally the courts will not assist in enforcing such a contract.35 In Lavabre v Excelsior Hotel Ltd36, where a foreigner was only authorized to practice as an architect under a construction company, in accordance with the requirement of the Immigration Act, but he practiced on his own. The court held that a contract he entered into was illegal. He was, therefore, not entitled to sue and recover money for services rendered under the contract; not even on the basis of quantum meruit.
Similarly, in Chivers v Davis of AmericaI37, where an alien took up employment in defiance of the provisions of the Immigration Act, the court refused to lend its assistance in enforcing his action for damages for wrongful termination of employment.

28 Tony Nwazuoke, Introduction To Nigerian Labour Law, The Departmnt of Public Law and Jurisprudene Ogun State 1st (ed) 2001 P. 21.
29 Okene O.V.C Industrial law In Nigeria, A Concise Text at P. 14, where a distinction between master servants was made.
30 (2001) FWLR (PT 76) 709 C.A
31 (1947) K B 598 at 615.
32 Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department Of Public Law and Jurisprudence Ogun State. 1st (ed) 2001 P 22.
33 1961 Cap 67 of Lagos State.
34 Tony Nwazuoke, Introduction To Nigerian Labour Law, The Department of Public Law And Jurisprudence Ogun State. 1st (ed) 2001 P 22.
35 E E Uviaghara, Labour Law In Nigeriam Malthouse, Lagos Nigeria 1st (ed) 2001 P 20
36 (1967) LLR 141
37  (1971) NCLR 89
Share on Google Plus


The publications and/or documents on this website are provided for general information purposes only. Your use of any of these sample documents is subjected to your own decision NB: Join our Social Media Network on Google Plus | Facebook | Twitter | Linkedin