Paradigm Shift: Claim/Award of General Damages for Unlawful Termination of Employment in Non-Statutory Employments.
By T. S. Adebiyi, Esq.
The position of law initially with regard to the proprietary of the Claimant in an action of unlawful termination of employment to claim general damages in addition to claim for salary in lieu of notice was that a Claimant can only claim damages to the tune of sum of money which ought to have been paid in lieu of notice and can not therefore claim any other sum as general damages other than the sum ought to be paid in lieu of notice. The foregoing position was the common law position that an employer can hire, and fire’, ‘where there has been wrongful/unlawful termination or dismissal, the measure of damages is payment of what the employee would have earned over the period of notice’.
The above common law position was ardently followed by the Courts prior to 2017, however, this position has been rendered obsolete in view of the third alteration (2010) to the Constitution of the Federal Republic of Nigeria, 1999 in Section 254(C) which conferred on the Court, exclusivity in relation to labour relation matters and Section 19(d) of the National Industrial Court Act which grants the Court discretion in awarding damages.
With the third alteration to the Nigeria Constitution, the law has changed from the previous position that general damages can not be claimed or awarded in relation to unlawful termination of employment with no statutory flavour.
The Court in the case of MEKWUNYE v. WAEC [2020] 6 NWLR [Pt 1719] 1 at 22 held that for every wrong, there is a remedy, which principle is rooted in the Latin maxim, ” Ubi jus ibi remedium”.
It is therefore, now the law that the principles of contract apply to employment relationship and therefore where there is a breach, a relief of damages ought to follow. This was the position of the Court in the unreported decision of the Court of Appeal, Lagos Division in Appeal No. CA/L/1091/2016 SAHARA ENERGY RESOURCES LIMITED v MRS. OLAWUNMI OYEBOLA, the judgment of which was delivered on December 3, 2020 which decision is the paradigm shift to the earlier position on the award of general damages.
Interestingly, recently the Supreme Court in the case of SKYE BANK PLC v. ADEGUN [2024] 15 NWLR [Pt 1960] 1 at 29 – 30, per Agim, JSC, held:
Where a contract of employment is brought to an end by the employer contrary to the terms agreed therein, the quantum of damages awardable therefore cannot be based on the remuneration of the employee during the period of notice prescribed in the agreement for either party to terminate the agreement. The employer cannot enjoy the benefit he would have enjoyed if the contract had been brought to an end in accordance with the contract. Having brought the contract to an end in breach of the contract, the damages payable by it cannot be restricted to only one month salary in lieu notice, which is what it would have been liable to pay if it had terminated the employment as prescribed in the contract. To limit the damages payable by the employer to one month salary in lieu of notice in this case, would amount to enabling it to benefit from its wrongful act in breach of the contract. It is an inveterate rule of equity of great antiquity that equity will operate to prevent a party from benefiting from his or her wrongful act. It would be oppressive and unjust to the employee to award him or her damages on a basis prescribed in the contract of employment for termination of his employment in breach of that contract. Having brought his employment to an end outside the terms of the contract the employer cannot restrict the quantum of damages awardable to the employee to the terms prescribed in the contract. The quantum of damages awardable to the employee in such a situation should be in accordance with the general law of contract on award of damages for breach of contract, which would involve a consideration of the consequential loss that has arisen or would arise from the breach of the contract of employment having regard to the monthly wage, current age of the employee and the due date of retirement.
The above position of the Supreme Court was also followed and adopted by the National Industrial Court, Lagos Division recently in the case of MS BINTA OLUWATOSIN ADEJOH -VS- ARIK AIR LIMITED SUIT NO. NICN/LA/290/2020 delivered on the 21st January 2025.
In Conclusion, the position that an employee whose employment was terminated unlawfully can not claim general damages is now obsolete as one of the nature or characteristics of law is that law is dynamic, that is, law is not static and can change in order to meet the current needs of the society.
The present position is that an employee can claim general damages for any loss he may or likely to have suffered for such unlawful termination of employment.
REFERENCES
- CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA 1999 AS AMENDED)
- NATIONAL INDUSTRIAL COURT ACT 2006
- MS BINTA OLUWATOSIN ADEJOH -VS- ARIK AIR LIMITED, SUIT NO. NICN/LA/290/2020 delivered on the 21st January 2025.
- SKYE BANK PLC v. ADEGUN [2024] 15 NWLR [Pt 1960] 1
- APPEAL NO. CA/L/1091/2016 SAHARA ENERGY RESOURCES LIMITED v MRS. OLAWUNMI OYEBOLA,
- MEKWUNYE v. WAEC [2020] 6 NWLR [Pt 1719] 1
- SKYE BANK PLC v. ADEGUN [2024] 15 NWLR [Pt 1960] 1
- [https://dnlpartners.ng/legalandstyle/2020/sahara-energy-resources-limited-v-mrs-olawunmi-oyebola-the-measure-of-damages-in-master-servant-employment-disputes-revisited
- https://www.nicnadr.gov.ng/judgement/judgement.php?id=9669
- https://nicnadr.gov.ng/news/1083/review-of-some-of-the-significant-decisions-labour-and-employment-2020
About the Author
T.S. Adebiyi, Esq. Is the Principal of S. ADEBIYI CHAMBERS (TSA LEGAL) and Founding Partner of Firmpoint Attorneys LP firms of legal practitioners with diverse practice areas which cover amongst others employment, labour, industrial and trade disputes and can be reached via adebiyitolulopesam04@gmail.com
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