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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA Before His Lordship: HON. JUSTICE O. A. SHOGBOLA JUDGE Date: 29TH APRIL, 2014 Suit No. NICN/ABJ/233/2012 BETWEEN ADOLE EMMANUEL OWOICHO CLAIMANT AND VOIX NETWORKS LIMITED DEFENDANT REPRESENTATION Kevin Emeka Okoro Esq for the Claimant. Ugoh Agugam Esq for the Defendant. JUDGMENT By a complaint dated and filed on the 7th August, 2012, the claimant claims against the defendant as follows:- 1. A Declaration that the summary dismissal of the claimant by the defendant as contained in the defendant’s letter of 5th March, 2012 is unlawful, unconstitutional, null and void and of no effect whatsoever. 2. A Declaration that the purported dismissal of the claimant from the services of the defendant for concocted reasons having criminal traits and ingredients without affording the claimant any hearing at all before either a disciplinary body or a court of law is contrary to the principles of Natural Justice and a calculated infraction of the claimant’s right of fair hearing as contained in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore null and void and of no effect whatsoever. 3. An Order setting aside the purported dismissal of the claimant from the services of the defendant as conveyed by the defendant’s as conveyed by the defendant’s letter of 5th March, 2012. 4. An Order of this Honourable Court that the claimant be paid all the salary arrears at N40,000.00 per month due to him up to the date of Judgment or until the defendant finally reinstate the claimant into its services. 5. In the alternative to (3) and (4) Supra, an order commanding the defendant to pay the claimant all his Sixteen (16) month’s salary arrears at N40,000 per month totaling N640,000. 6. Pay the claimant the sum of Two Million Naira (N2,000,000.00) as general damages. 7. The claimant finally urges the court to order that the defendant shall pay him 10% interest from the date of Judgment till full satisfaction of the Judgment. Attached to the complaints are claimant’s witness statement on Oath, statement of facts, list of witness and list of documents to be relied upon. On the 15th of February, 2013 the defendant entered Notice of Conditional Appearance, filed its statement of defence, witness statement on Oath, and list of documents to be used at the trial but deemed properly filed and served on the 20th of February, 2013. This case went on trial on 22nd of November, 2013 and it was concluded same day. The case was adjourned for the defendant to cross – examine the claimant. After several adjournments, the counsel to the claimant applied that the defendant be foreclosed for failure to show up in the court to prosecute this case. The court thereafter ordered the claimant to file his final written address. On the 3rd of February, 2014 the counsel for the claimant adopted his final address. Issues arising from the Evidence The learned counsel submitted that from the evidence the following issue present themselves for determination of this Honourable Court:- Whether the claimant is entitled to the claim in this complaint. The counsel to the claimant has established his case without contradiction. In civil matters he who asserts must prove. He submitted further that it has been emphasized that who ever desires any court to give Judgment as to any legal right or liability and on the existence of facts which he asserts must prove those facts. This is the position of law in the case of MELFONWU V EGBUJI (1982) 9 SC 145 @ 163. It is the counsel’s submission that claimant has proved his case beyond probabilities. Where there is no counter, averments of the claimant are deemed to be true. The learned counsel further submitted that for a claim of wrongful dismissal of employment, the measure of damages is prima facie the amount that the claimant would have earned had the employment continued. He referred the court to the case of OSISANYA V AFRIBANK NIG. PLC (2011) 24 N.L.L.R, (PT. 67) 30 AT 34, RATIO 2. He prayed the court that in view of the Plaintiff having proved his case urged the court to enter Judgment and grant all the claims in favour of the claimant without much ado. Having carefully considered the evidence before me, the issue for the court to decide is:- Whether having regard to the oral evidence, the submissions of the learned counsel to the claimant in this matter, the claimant has made a case for the grant of the reliefs he sought. It is an established principle of law backed by a plethora of decided cases that an employer is entitled to retire, terminate or dismiss his employee’s appointment for good or for bad reasons or for no reason at all, so long as he acts within the terms of the employment, his motive for doing so is irrelevant. A servant who complains that his employment has be brought to an end must found his claim on the contract of service and show in what manner the wrong was done. Before the court is Exhibit PW1 the claimant’s offer of employment letter as an electrician by the defendant. The defendant is exercising its right to terminate the appointment of the claimant did so terminating the claimant’s appointment by a letter dated 5th March, 2012, Exhibit PW3, stating that the claimant should liaise with the Accountant to settle his arrears. The claimant’s letter of appointment provides for the terms and conditions of service binding the claimant and the defendant and paragraph 6 of this stated or provided the either party may terminate the contract of employment giving the period of notice required. In this case, the case of the claimant is that he is being owed by the defendant thirteen (13) months salaries. In the defendant statement of defence in paragraph 7 the defendant claimed that the delay in paying the claimant’s Ten (10) months salaries was due to the fact that the case was still pending at the National Human Rights Commission awaiting resolution. They claimed further that the claimant has failed to show up at office from February, 2012, this allegation they did not prove before the court. It is also noted that the claimant is not challenging the termination of his appointment by the defendant but he is asking for the unpaid salaries for Sixteen (16) months salaries arrears at N40,000.00 (Forty Thousand Naira) Only per month, totaling N640,000.00 (Six Hundred and Forty Thousand Naira) Only. To buttress his claim to this amount the claimant tendered his Zenith Bank Plc statement of account showing that his salary was increased from N30,000.00 to N40,000.00 in February, 2009 and that arrears was paid to him in March, 2010. I therefore entered Judgment against the defendant in favour of the claimant for the sum of N640,000.00 (Six Hundred and Forty Thousand Naira) Only being the arrears of salaries for Sixteen (16) months. The defendant failed to defend this case, after filing memorandum of appearance and other privileges then failed to attend court sittings. It is trite that the effect of failure of a party to call evidence in support of his averments in a pleading is taking that such averments in a pleading is taking that such averments are abandoned. Yusuf V Oyetunde (1981) & NWLR (Pt. 579). It is also be noted that failure to call evidence does not automatically lead to the claimants case succeeding. The rule of minimal evidential requirement applies in the circumstances of this case. The claimant has been able to prove to the court that he is entitled to the claim. The claimant is also demanding the sum of N2,000,000.00 (Two Million Naira) Only as general damages. It is trite that an employer has the right to bring to an end the employment of his servant. In a wrongful termination of employment the only remedy available to an employee is the award of salary for the period of notice and other legitimate entitlements due to him at the time the employment was brought to an end. In this case the employer has done no wrong in terminating the claimant’s appointment all they needed do is to pay his trial final entitlements. For this reasons the claimant’s claim for the payment of his Sixteen (16) months arrears of salaries is granted while claim for damages fails. Judgment is entered accordingly. ______________________________ HON. JUSTICE O. A. SHOGBOLA JUDGE.