In other cases where the employment is governed by the agreement of the parties, removal by way of termination of appointment or dismissal must be in accordance with the terms agreed upon. Failure to comply with the terms renders the termination wrongful but not null and void. The only remedy available to an employee in an ordinary master and servant relationship for wrongful termination of employment is a claim for damages. The rationale being that a servant, though wiling, cannot be foisted upon an unwilling master. See: U.B.N. Ltd v. Ogboh (1995) 2 NWLR (Pt. 380) 647 @ 664; Ibama v. S.P.D.C (Nig.) Ltd. (2005) 17 NWLR (Pt. 954) 364; Olanrewaju v. Afribank Nig. Plc. (supra).
An employer who terminates the contract with his employee in a manner not envisaged by the contract will be liable for damages for the breach of the contract and that is the employee's only remedy. It follows therefore that an employer who has the right to hire has the corresponding right to fire as well. Thus, without any reason, the employer can terminate the employment of his servant and render himself liable to pay damages and such other entitlements of the employee that accrued at the time of the termination only. The Court, except where the employment is especially protected by statute, cannot compel the employer to re-instate the dismissed employee. See Olarewaju v. Afribank (Nig.) Plc (2001) LPELR-2573 (SC), Olaniyan v. University of Lagos (1985) 2 NWLR (Pt 9) 599, Osisanya v. Afribank (Nig) Plc (2007) LPELR-2809 (SC).
What flows from this latter category, that is, in cases governed only by agreement of the parties, and not by statute, is that the measures of damages recoverable in situations of wrongful termination or dismissal of a servant are determined by what the employee would have earned over the period of notice required for the determination of the employment, Nom Ltd v. Daura (supra); N.P.M.B. v. Adewunmi (1972) 11 SC 111; Onalaja v. African Petroleum Ltd [1991] 7 NWLR (Pt. 206) 691; Chukwumah v. Shell Petroleum Dev. Co. Ltd. (1993) 4 NWLR (Pt. 289) 512; International Drilling Co. Ltd. v. Ajijala (1976) 2 SC 115; Akinfosile v. Mobil (1969) NCLR 253; WNDV v. Abimbola (1966) 1 All NLR 159; Mayne and McGregor on Damages (12th edition); paragraph 608.
Simply put, therefore the measure of damages in cases of wrongful dismissal of this category is always the amount of money that is payable during the period of notice to be given by the employer as stipulated in the contract of employment, Nigerian Produce Marketing Board v. Adewunmi (1972) 11 SC 111; Olatunbosun v. N.I.S.E.R Council (1988) 3 NWLR (Pt. 80) 25.
In all therefore, I take the view that the lower Court correctly stated and applied the applicable principle of law in a master and servant relationship. In International Drilling Company (Nigeria) Limited v. Moses Eyeimofe Ajijala (1976) 2 SC 64, 73-74, this Court made the point that:
The principles of law governing the award of damages were stated recently by this Court in: Western Nigeria Development Corporation v. Jimoh Abimbola (1966) NMLR 381, 382; and Nigeria Produce Marketing Board v. A. I. Adewumi (1972) 1 All NLR (Pt. 2) 433, 437.
However, in other cases governed only by agreement of the parties and not by statute, removal by termination or dismissal would be in the form agreed to. Any other form of dismissal or termination connotes only wrongful termination or dismissal. It therefore does not warrant a declaration of such dismissal as void. Where this happens, the only remedy open to the plaintiff is a claim for damages for that wrongful dismissal and not reinstatement.
Where the servant is removed in a contract with statutory flavour, the first question the Court would ask is: has the servant's employment been determined in accordance with the way and manner prescribed by the statute under reference? Or, is the contract governed by an agreement of the parties and not under any statute? Where the servant is sought to be removed in a contract with statutory flavor, that is, a contract of employment wherein the procedures for employment and discipline, including dismissal, are clearly spelt out, such a contract must be terminated in the way and manner prescribed by the statute. Any other manner of termination which is inconsistent with the relevant statute is void and has no effect.
My Lords, I cannot find any justification for disagreeing with the above conclusion of the lower Court. Under the common – and Nigerian – laws, the position is that, ordinarily, a master has the right to terminate his servant's employment for good or bad reasons or for no reason at all. The basic principle considered normally in the resolution of a dispute between a master and his servant where the former determines the latter's appointment is the determination of whether the contract of service between the two of them is one with statutory-colouration/flavour.
In the first place, I endorse the conclusion of the lower Court that parties are bound by the terms of their contract. If the conditions for the formation of a contract are fulfilled by the parties thereto, they will be bound. It is not the function of a Court to make a contract for the parties or to rewrite the one which they have made,U.B.N. v. Ozigi (1994) 3 NWLR (Pt. 333) 385, 404. Thus, unless it is established in evidence that a party was fraudulently led into an agreement, parties are bound by the written and express terms of their contract, Chidoka v. First Finance Co. Ltd (2012) LPELR-9343 (SC); [2013] 5 NWLR (Pt. 1346) 144. In other words, in the absence of fraud, duress and undue influence or misrepresentation, the parties are bound by their contract, Makwe v. Nwukor (2001) 7 SC (Pt. 1) 1, 38; A-B; Alade v. Alic (Nig.) Ltd [2010] 19 NWLR (Pt. 1226) 111.
There are three categories of contracts of employment. They are:
(a) Purely master and servant relationship,
(b) Servants who hold their office at the pleasure of the employer.
(c) Employments with statutory flavor.
See: Longe Vs F.B.N. Plc (2010) 6 NWLR (Pt.1189) 1.
Just for emphasis, let me add a few words. I agree with the Appellants submission, on the authority of Olatunde O.A.U. & Anor. (1998) 4 S.C.N.J. 59 at 74 – 75 and Layade Panalpina World Transport (Nig.} Ltd (1996) 7 S.C.N.J. II; that it is no duty of the Court to make contracts for the parties, and that as a rule parties make their own contracts and intend thereby to be governed by the contract.
It is settled law that where the contract between the parties is reduced into writing, extrinsic evidence is not permitted to add, vary, subtract from or contradict the terms of the written instrument. See: Koiki v Magnusson (1999) 8 NWLR (Pt.615) 492; Ogundepo Vs Olumesan (2011) 18 NWLR (Pt. 1278) 54; Olaoye vs. Balogun (1990) 5 NWLR (Pt. 24.
It is equally settled that where a contract is made subject to the fulfillment of specific terms and conditions, the contract is not formed and not binding unless and until those terms and conditions are fulfilled. See:Tsokwa Oil Marketing Co. Vs B.O.N Ltd. (2002) 11 NWLR (Pt. 777) 163; Best (Nig) Ltd vs. Blackwood Hodge (Nig) Ltd. (2011) 5 NWLR (Pt. 12239) 95.
It is trite, as rightly submitted by learned counsel for the appellant, that for there to be a binding contract between parties, they must be in consensus ad idem with regard to the essential terms and conditions thereof. The parties must intend to create legal relations and the promise of each party in a simple contract, not under seal, must be supported by consideration. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled. See: Alfotrin Ltd. Vs A.G. Federation & Anor. (1996) 9 NWLR (pt.475) 634 @ 656 H; Dangote Gen. Textile Products Ltd. & Ors. vs. Hascon Associates Nig. Ltd. & Anor. (2013) 12 SCNJ 456; Akinyemi Vs Odua Investment Co. Ltd. (2012) 1 SCNJ 127: Bilante International Ltd. Vs N.D.LC. (2011) 15 NWLR (pt.1270) 407 @ 423 C F; BPS Construction & Engineering Co. Ltd. vs. F.C.D.A (2017) 1 SC (Pt. II) 125 @ 146 148.
Conversely, my understanding of a 'CONTRACT' is that it is a formal agreement between two or more parties who by so entering into such agreement, they resolve to create obligation or commitment between them to do or not to do a particular thing. In a contract, the basic elements that forms it or makes it binding, is that there is offer, "acceptance" and consideration and these three elements of which must coexist and be properly defined in no uncertain terms.
In such agreement, if parties sign it they make themselves bound by it and thereby becoming enforceable on them depending on the terms agreed upon. See Alfotrin Ltd v. A-G Federation & Ors (1996) 9 NWLR (Pt. 475) 634.
The situation presenting as it is, that of an inchoate agreement which can be properly described as an Intent for a future reaching of an agreement, there is no basis on which specific performance can be ordered. For emphasis the MOU was just a process in the journey to a contract and so the contract had not happened and so no specific performance can be ordered and the issue of a quantum meruit of damages cannot be ordered for a non existent contract not to talk of a breach thereof. See Ezenwa v. Oko (2008) 3 NWLR (Pt. 1075) 610 at 628;Savannah Bank of Nigeria Plc v. Oladipo Opanubi (2004) 1 NWLR (Pt. 896) 437 at 453-454.
This Court has stated time without number that in order to decide whether parties have reached agreement, it is usual to inquire whether there has been a definite offer by one party and unqualified acceptance of that offer by another. An offer is a definite undertaking made with the intention that it shall become binding on the person making it as soon as it is accepted by the person to whom it is addressed. It therefore follows as a matter of course to the happening of a contingency that contract only become enforceable provided the event has occurred of the contingency has happened. In other words where the contract is made subject to the fulfillment of certain specific terms and conditions, the contract is not formed or becomes binding unless and until those terms and conditions are complied with or fulfilled.
I have relied heavily on the following judicial authorities of this Court, viz:
Omega Bank Plc v. O.B.C. Ltd (2005) 8 NWLR (Pt. 928) 541 at 575; Nwagwu v. F.B.N. (2009) 2 NWLR (Pt. 1125) 203;U.B.A. Ltd v. Tejumola & Sons Ltd (1988) 2 NWLR (Pt. 79) 662 at 688; Tsokwa Marketing Co. Ltd v. B.O.N. Ltd(2002) 11 NWLR (Pt. 777) 163 at 200.
The general principle of law is that where a contract is made subject to the fulfillment of certain terms and conditions, the contract is inchoate and not binding until those terms and conditions are fulfilled. See: Tsokwa Marketing Co. Vs B.O.N. Ltd. (2002) 11 NWLR (Pt.777) 153 @ 196 – 197 H – A & 199 200 G A; U.B.A. Ltd. V. Tejumola & Sons Ltd. (1998) 2 NWLR (Pt.79) 652 @ 685 C – D: Okechukwu Vs Onuorah (2000) 15 NWLR (Pt.691) 597 @ 614 – 615 H – A; Best (Nig). Ltd. Vs Blackwood Hodge (Nig.) Ltd. (2011) 5 NWLR (Pt.1239) 95 @ 126 C – D.
My Lords, it is necessary to reiterate here the elements of a binding and enforceable contract, which are: offer, acceptance, intention to create a legal relationship, consideration and capacity to contract. See: Bilante International Ltd. Vs N.D.I.C. (supra) and Alfotrin Ltd. Vs A.G. Federation & Ors. (supra). For ease of reference I deem it appropriate to restate the dictum of Iguh, JSC in: Alfotrin Ltd. Vs A.G. Federation & Ors. (supra) to the effect that for there to be an enforceable contract "there must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled."
An invitation to treat, on the other hand, is the first step in negotiations between the parties to a contract, which may or may not lead to a definite offer being made by one of the parties to the negotiation. An invitation to treat is not an offer that can be accepted to lead to an agreement or contract. See: BFI Group Corporation Vs B.P.E. (2012) 18 NWLR (Pt.1332) 209 @ 246 G – H; Neka B.B.B. Manufacturing Co. Ltd. Vs A.C.B. Ltd.(2004) 2 NWLR (Pt.858) 521.
The basic elements of binding contract are therefore offer, acceptance/consideration, capacity to contract and intention to create a legal relationship. See also; Dangote Gen. Textile Products Ltd. & Ors. Vs Hascon Associates Nig Ltd. & Anor. (2013) 12 SCNJ 456; Akinyemi Vs Odua Investment Co. Ltd. (2012) 1 SCNJ 127. See also: Alfotrin Ltd. Vs A.G. Federation & Ors. (1996) 9 NWLR (Pt.475) 634 @ 656 H; (1996) LPELR-414 (SC) @ 29 B – D per Iguh, JSC, to wit:
"To constitute a binding contract, there must be an agreement in that the parties must be in consensus ad idem with regard to the essential terms and conditions thereof; the parties must intend to create legal relations and the promise of each party, in a simple contract, not under seal, must be supported by consideration. There must be a concluded bargain which has settled all essential conditions that are necessary to be settled and leaves no vital term or condition unsettled."
This Court in a recent decision in: Bilante International Ltd v. NDIC (2011) 15 NWLR (Pt.1270) 407 @ 423 C F, restated the position of the law regarding what constitutes a valid and enforceable contract thus:
"Contract is defined as an agreement between two or more persons which creates an obligation to do or not to do a particular thing. Its essentials are competent parties, subject matter, a legal consideration parties, subject matter, a legal consideration, mutuality of agreement and mutuality of obligation. Lamoureu v. Burrillville Racing Assn 91 R. 194, 161 A.2d 213, 215.
To constitute a binding contract between parties, there must be a meeting of the mind often referred to as consensus ad iden. The mutual consent relates to offer and acceptance. An offer is the expression by a party of readiness to contract on the terms specified by him, which, if accepted by the offeree gives rise to a binding contract. The offer matures to a contract where the offeree signifies a clear and unequivocal intention to accept the offer. See: Okugule & Anor V. Oyagbola & Ors. (1990) 4 NWLR (Pt.147) 723.
It should be reiterated that in order to establish that parties have formed a contract, there must be evidence of consensus ad idem between them. Then if there is a stipulated mode for acceptance of the offer, the offeree has a duty to comply with same. See: Afolabi Vs Polymera Industries Ltd. (1967) 1 All NLR 144, (1967) SCNLR 256."
The important thing to consider in an action on a contract itself and for a plaintiff to succeed in an action under such a contract, it/he must tie himself within the terms and conditions of the policy or contract. See YADIS NIGERIA LTD VS NIC LTD (2007) ALL (Pt.3700) 1348.
The law is trite, that where the words of a contract, agreement or document are clear, the operative words in it should be given their simple and ordinary grammatical meaning. Where parties enter into an agreement, upon their common understanding of the clause(s) therein, they would be bound by the agreement, and none would be allowed to import strange interpretation into the document, just to suit his selfish intention to back out of the agreement. See Adetoun Oladeji Nig. Ltd Vs Nigerian Breweries Plc (2007) ALL FWLR (Pt.357) 837. Amizu Vs Nzeribe (1989) 4 NWLR (Pt.118) 755; Oduye Vs Nigerian Airways Ltd (1987) 2 NWLR (Pt.55) 126.
See also the case of Dalek Nig. Ltd Vs OMPADEC (2007) LPELR 916 (SC); (2007) 7 NWLR (Pt.1033) 402, where it was held:
It is now settled that where the words of a contract, agreement or document are clear,the operative words in it should be given their simple and ordinary grammatical meaning. Union Bank of Nigeria Ltd Vs Sax Nig. Ltd & Ors (1994) 9 SCNJ 1; (1994) 8 NWLR (Pt.361) 150.
AHARANWA(MRS)
This is so, because, it is the Law that where parties have entered into agreement voluntarily and there is nothing to show that such agreement was obtained by fraud, mistake, deception or misrepresentation they are bound by the terms of the agreement. See A.G. Rivers State v. A.G. Akwa-Ibom State (2011) 8 NWLR (Pt.1248) 31 at 81.
From those three grounds of appeal, the Appellant distilled the single issue which posed the question whether without a contractual relationship between Appellant and now only respondent, there cannot be a cause of action even if the claim is made in equity for money had and received and for money held in constructive trust. The Appellant had sought refuge in the case of this Court per Iguh JSC in Alfotrin Ltd V. A.G.Federation (1996) 9 NWLR (pt.475) 634 where the learned Jurist stated thus at page 659:-
"The law is settled that where a plaintiff can prove the rendering of services under an unenforceable contract, the contract is admissible as evidence of the value of the services rendered and he may recover on a quantum meruit basis. Put differently, where work is done or services are rendered by the Plaintiff at the request of the Defendant and of which the Defendant has had the benefit, the plaintiff can recover the value of the work or services rendered on a quantum meruit. The law provides remedies for cases of unjust enrichment and thus to prevent one from retaining some benefit derived from another which it is unconscionable that he should keep. Such remedies, strictly speaking are different from remedies in contract or tort and are recognized to fall within the common law remedy of quasi contract".
Generally speaking, master-servant relationship is the association between one in authority and a subordinate – especially between an employer and an employee. And employer-employee relationship is the association between a person employed to perform services in the affairs of another who in turn has the right to control the person’s physical conduct in the course of that service. See Black’s Law Dictionary 9th edition page 1402. OLUKAYODE ARIWOOLA, J.S.C
A contract is said to be frustrated, when the intervening event is beyond the control of either party to make the performance of the contract impossible. There has to be proof by the Appellant, who claims frustration, that it was impossible for him to ensure performance of the contract of sale. See TOTAL (NIG) PLC v. AKINPELU (2004) 17 NWLR (PT. 903) 509 and AIICO INSURANCE PLC v. ADDAX PETROLEUM COMPANY LTD (2015) 6 NWLR (PT. 1456) 597.
There is no frustration in this case because prior to the sale, the Appellant knew that he did not possess exclusive ownership of the property sought to be disposed. Further, as rightly submitted for the Respondent, this was not pleaded anywhere. It is trite law that parties are bound by their pleadings; See RAMONU ATOLAGBE V. KOREDE OLAYEMI SHORUN (1985) 1 NWLR (Pt.2) 350 AT 365, paras. D-E.
Pleadings define and delimit the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. It is designed to bring the parties to an issue on which the Court adjudicates between them. A party is bound by his pleadings and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded. See ALHAJI KARIMU LEMOMU & ORS. V. HADJI NOAHS ALLI-BALOGUN & ORS. (1975) 1 ALL N.L.R. 30 AT P.40. PER MUSTAPHA, J.CA.
WHETHER OR NOT ARGUMENTS CONTAINED IN A LITIGANT’S BRIEF ARE ESSENTIAL FOR THE PURPOSE OF A JUDICIOUS DETERMINATION OF AN APPEAL IN COURT The issue was inelegantly couched, and argued in such a way that it is difficult to make head or tail of the submissions, be that as it may, it is an elementary point to state here that arguments contained in litigant’s brief are essential for the purpose of a judicious determination of an appeal before the Court; see DIBIAMAKA v. OSAKWE (1989) NWLR (PT 107) 101; (1989) ALL NLR 472; (1989) LPELR-940 (SC) at P. 10 paras.
D-E. where it was held: “…A bad brief is a great disservice to the case the lawyer desperately wants to present and is thus of no assistance to the Court or even to counsel who, not understanding his own case, cannot put same across; See also my opinion in LASTMA v ESEZOBO (2015) LPELR-25003 (CA) at pp. 4-50; CHIMA OGBONNAYA v FIRST BANK OF NIGERIA PLC (2015) LPELR 24731 at p. 17…” An inelegant brief is still a brief that must be considered, the fact that a brief of argument is poorly written would not discharge the Court of its obligation under the law to do substantial justice to the parties in respect of an appeal before it; see: OBIORA v OSELE (1989) 1 NWLR (Pt 97) 279 at 300; AKPAN v THE STATE (1992) 6 NWLR (PT 248) 439 at 466, 471-472; TUKUR v GOVT OF TARABA STATE (1997) 6 NWLR (PT 510) 549; OMOJASOLA v PILSSON FISKO (NIG.) LTD (1990) 5 NWLR (PT 151) 434.
PER MUSTAPHA, J.CA.