Labour Law

• Pages: 535-610

Collective agreement and legal enforceability Paras. 1101-1103

LABOUR LAW

(1) COLLECTIVE AGREEMENT AND LEGAL ENFORCEABILITY

1101. Where no express provisions have been agreed on, custom or trade

practice may be presumed to have been incorporated into the terms of em-

ployment.

“On the other hand the respondent company gave evidence that one month was the

normal notice given to senior staff in the company. The Service Manager said that his

employment could be terminated on one month’s notice, and an agreement between

the company and a member of the senior executive staff was produced to show that

one month was the period of notice applying to that senior officer. This agreement did

not, of course bind the appellant, but it was relevant evidence for the purpose of

showing the period of notice which would be reasonable in the case of an officer of

the appellant’s seniority.” – Per Unsworth, F.J, in Daniels v. Shell B.P. Petroleum

Development Co. of Nigeria Suit No. FSC 377/1960; (1962) 1 All N.L.R. 19 at 20

- 21.

(2) CONFIRMATION OF EMPLOYMENT

1102. Confirmation of appointment made subject to certain conditions.

“There cannot be any vested right when an exercise is made subject to the fulfillment

of some conditions and acceptance of those conditions at the discretion of the affirm-

ing body. The case of Udoh v. O.B.M.B. (supra) relied upon by learned counsel for

the appellants therefore is distinguishable because the instruments in the two cases

are differently worded. See Anyanwu v. Mbara (1992) 5 N.W.L.R. (Pt. 242) 386 at

400-401; I.B.W.A. v. Pavex International Co. Ltd. (2000) 7 N.W.L.R. (Pt. 663) 105

at 128.” - Per Mangaji, J.C.A. in Taduggoronno v. Gotom Suit No. CA/J/100/2000;

(2002) 4 N.W.L.R. (Pt. 757) 453 at 480.

(3) CONTRACT OF EMPLOYMENT

1103. A contract of service is generally governed by the Common Law rules

of contract.

“The appeal involves the law of contract. It is elementary law that five ingredients

must be present in a valid contract. They are offer, acceptance, consideration, inten-

tion to create legal relationship and capacity to contract. All these five ingredients are

autonomous units in the sense that a contract cannot be formed if any of them is

absent. In other words, for a contract to exist in law, all the five ingredients must be

present. The appeal deals with only two of the ingredients. They are offer and ac-

ceptance. The appeal has nothing to do with the other three. Accordingly, I shall

confine myself only to the first two ingredients.

A contract is an agreement between two or more parties, which creates recip-

rocal legal obligation or obligations to do or not to do a particular thing. For a valid

contract to be formed, there must be a mutuality of purpose and intention. The two or

535

Paras. 1103,1104 Vol. 13: LABOUR LAW 536

more minds must meet at the same point, event or incident. They must not meet at

different points, events or incidents. They must be saying the same thing at the same

time. They must not be saying different things at different times. Where or when

they say different things at different times, then they are not ad idem and therefore

no valid contract is formed. The meeting of the minds of the contracting parties is the

most crucial and overriding factor or determinant in the law of contract. The minds

must be ad idem or ad idem facit”. – Per Tobi, J.C.A. in Orient Bank (Nig) Plc v.

Bilante Int. Ltd. Suit No. CA/E/230/95; (1997) 8 N.W.L.R. 37 at 76.

1104. A Court cannot enforce an instrument or obligation arising out of a

contract or transaction which it knows to be illegal.

(1) “Under Section 6 (ii)(c) of Cap. 84 Crown Lands Ordinance he was not entitled

to part with the possession of any part of the land in question, without approval from

Government. From Exhibits “E” and “F” which he tendered himself, it is clear that he

sublet to defendant in open defiance of the implied covenant and therefore his con-

tract with defendant was illegal. No Court ought to enforce an illegal contract, or

allow itself to be made the instrument of enforcing obligations which arise out of a

contract or transaction, which is illegal. This Court, therefore, finds that it cannot

assist plaintiff to recover any rents which have accrued to him as a result of the

illegal transaction he entered into with defendant, and the case is dismissed. No order

as to costs.” – Per Jackson, J, in Sam Warri Esi v. Moroko. (1949) 15 N.L.R. 116 –

177.

(2) “ In the course of an impressive address, Mr. Sogbesan for the plaintiff referred

to two English Cases. The first, Archbolds (Freightage) Ltd., v. S. Spanglent Ltd.,

(1961) 1 Q.B. 374 decided, inter alia, that where a contract is not ex facie illegal,

public policy did not constrain the Court to refuse aid to the plaintiffs who did not

know that the contract would be performed illegally. It seems to me, however, that

the position will be different if the illegality is known to both parties in which the Court

will not enforce the contract.

This is clear from what Pearce, L.J. said in the case at page 384: - “If a

contract is expressly, or by necessary implication forbidden by statute, or if it is ex

facie illegal or if both parties know that though ex facie legal it can only be per-

formed by illegality or is intended to be performed illegally, the law will not help the

plaintiff in any way that is a direct or indirect enforcement of rights under the con-

tract. And for this purpose both parties are presumed to know the law.” The second

case referred to, Hire Purchasing Furnishing Coy. v. Richens (1888) 20 Q.B.D.

387 is to the effect that a party who asserts illegality has the duty to establish it. In the

case of Archbolds (Freightage) Ltd., (supra). Devlin, L.J. said at page 388: “ The

third effect of illegality is to avoid the contract ab initio and that arises if the making

of the contract is expressly or impliedly prohibited by statute or is otherwise contrary

to public policy.” – Per Dosunmu J. in Omisade v. Kannike – Martins (1976) 2

F.N.R. 62 at 69.

537 Contract of employment Paras. 1104-1106

(3) “The principle which emerges from a view of all the authorities cited before us is

that when a contract is ex-facie illegal, whether illegality has been pleaded or not, the

Court - (sic) ought not close its eyes against the illegality, as it is its duty to refuse to

enforce such a transaction whether illegality has been pleaded or not. See Snell v.

Unity Finance Limited (1964) 1 All E.R. 680 also N.W. Salt and Co. Ltd. v. Elec-

trolytic Alkali Co. Ltd. (1914-15) All E.R. Rep. 752. But where, as in this case,

there is no illegality ex facie, it ought to be pleaded and duly proved by evidence

before it need be considered by the Judge. See: George v. Dominion Flour Mills

Ltd. (1963) 1 All N.L.R. 71 at p. 74.” – Per Kayode Eso, J.S.C. in Harold Sodipo

v. Lemminkainen OY and Anor. (1986) All N.L.R. 80 at 84.

1105. A worker may sue his employer for the amount of work done even if

his contract is void.

“It is also settled law that “where one party has absolutely refused to perform, or has

rendered himself incapable of performing, his part of the contract, he puts it in the

power of the other party either to sue for a breach of it, or to rescind the contract and

sue on a quantum meruit for the work actually done.” – Per Alderson B in De

Bernardy v. Harding (1855) 8 Exch. 822. On the same principle even where work

was actually done pursuant to a void contract, the party who actually did the work

can sue on a quantum meruit; and so where the plaintiff was appointed a Managing

Director of a Company by an agreement under the Company’s seal and his remu-

neration was fixed, but the contract so appointing him and fixing the said remunera-

tion was void since neither the plaintiff nor the directors who purported to execute

the contract, had obtained their qualification shares in the manner provided by the

Articles of Association, it was clear that the directors could not in law bind the Com-

pany. The Court of Appeal, however, held that the fact that the plaintiff had actually

done work under a contract, which was void, did not disentitle him from recovering

on a quantum meruit Graven-Ellis v. Canons Ltd. (1936) All E.R. 1066.” – Per

Idigbe, C.J. in Ekpe v. Mid-West Development Corp. Suit No. B/17A/66; (1967)

N.M.L.R. 407 at 410.

1106. An acceptance must be definite and unqualified.

“This paragraph has set out the manner in which the offer in Exhibit D should be

accepted in order to become a binding contract and it is reasonable to expect that a

written offer is to be accepted according as it is expressly stipulated. The position in

law is stated in Halsbury’s Laws of England, 3rd Edition Volume 8 page 72 as

follows: - 126. Mode of acceptance. An offer cannot be accepted by anyone except

the person to whom it is made, and acceptance means the assent of that person,

signified in the mode required by the terms of the offer. The plaintiff realised this and

indeed testified that a copy of exhibit D was signed by him and returned to the

company. No notice to produce this attested copy was served on the defendants/

company and no such copy was in fact produced. We do not consider that the mere