A contract of master and servant may be either subject to statutory or common law rules. Contracts with statutory flavor are contracts where the employer is created by statute. Such contracts are governed by the statute which creates the employer. e.g In Olaniyan v. University of Lagos (1985) 2 NWLR (Pt. 9) p. 599, Act No. 3 of 1967 creates the University of Lagos. It is that statute that governs employer employee contract.
A contract is one with statutory flavor where the conditions for appointment and bringing the contract to an end are governed by an enabling statute. It follows naturally that a valid appointment or determination of the contract must satisfy provisions in the statute.
On the other hand contracts of master and servant without statutory flavor are classified as ordinary contract of service. Such contracts are governed by an employee Handbook where the conditions of service are spelt out.
Let me state straightaway that it is the substantive law in operation at the time an offence is said to have been committed that has to be referred to when a person is being charged to Court. Thus if a person is charged with offence of Money laundering in 2010, it must be the Money Laundering Act as at 2010 that will be used and not the Money Laundering Act at the time he is finally arraigned for trial in Court but the procedural law to be used would be the current one. Thus if the Evidence Act or the criminal procedure Law has been amended or replaced and a new one is in place at the time of trial, it is the amended or newly enacted Evidence Act/Criminal Procedure code that will be used to guide the trial. Thus it is the Evidence Act 2011 that will be used in the trial or appeal taking place in 2018 notwithstanding that the offence was committed in 2008.
I have no doubt at all that a claim under the common law can properly be joined in an application under Section 42 of the 1979 Constitution, where such a claim is secondary, ancillary or incidental to the complaint of a breach of fundamental right. In the instant case, the claims as found by both the High Court and the Court of Appeal were common law claims or reliefs which were wrongly brought under the Fundamental Rights (Enforcement Procedure) Rules instead of by Writ of Summons. This is a fundamental breach and not a mere technicality, which can be waived or ignored. One of the indicia of jurisdiction as laid down in Madukolu v. Nkemdilim (1962) All N.L.R. (part 2) 581 at 589, is that the action is initiated by due process of law, which in this case is by writ of summons. That is lacking here (see Tukur v. Gongola State (supra); Federal Minister of Internal Affairs v. Shugaba Darman (supra).
Abdulhamid v. Akar & Anor, LGC(5/5/2001) SC (E)
This Court in Akinjokun v. Lufthansa German Airlines & Anor (2018) LPELR-46729(CA), per Jauro, JCA (now JSC), said, pages 25-26: “The law is that where domestic/common law right as been enacted into a statutory provision, it is to the statutory provision that resort must be had for such right, and not the domestic/common law, Hence an air passenger is not at liberty to choose as between the provisions of the convention and the domestic/common law, for claims for damages against the carrier.
Such claims have to asserted only in accordance with and subject to the terms and conditions of the convention and cannot be pursued under any other law.” (Emphasis mine). In Air France v. Mrs. Francisca Majasan (2017) LPELR 43500(CA), this Court recognized that, page 16: “The Montreal Convention entered into force on May 28, 1999. Nigeria is signatory to the Montreal Convention.
It came into force in Nigeria on November 4, 2003, and was domesticated in Nigeria by the Civil Aviation Act, 2006.” By Section 48(2) of the Civil Aviation Act, the provisions of the said Act apply to non-international carriage by air within Nigeria, and govern the rights and liabilities of carriers, passengers, and other persons. PER OTISI, J.C.A.