JUDGMENT. 1. The claimant commenced this action on the 7th December, 2018, via a general form of complaint, praying for:- 1. A Declaration that the defendant having never determined his (claimant’s) employment, he remains a staff of the defendant and he is entitled to continue in his employment in the service of the defendant and he is entitled to his salary and other benefits from July 2012, when he was handed over to the police on allegation of fraud to the time of his trial, discharge and acquittal on 9th February, 2018 and from that time to present at the rate of #102,000.00 per month. IN THE ALTERNATIVE, 2. The claimant claims against the defendant the sum of N10,000,000 (ten million naira) being general damages for wrongful determination of his employment and malicious prosecution by the defendant THE CLAIMANT ALSO CLAIMS THE FOLLOWING; 3. AN ORDER directing to unfreeze his salary account No. 1011734915 with the defendant which was frozen at the commencement of the criminal case in July 2012 and in which the claimant had about the sum of N200,000.00 before it was frozen. 4. AN ORDER directing the defendant to take steps that will enable the claimant to have access to his pension contribution as staff of the defendant with pension Alliance limited (PAL) from 2008, June 2012 and up to present. 5. AN ORDER directing the defendant to pay the cost of this suit, including solicitor’s fee of one million, five hundred thousand naira only, 2. And upon being served with the claimant’s complaint the defendant filled her statement of defence in opposition to the claimant’s claims. The claimant equally replies to the defendant’s statement of defence and the case was set down for hearing parties joined issues. 3. The case of the claimant against the defendant is in the main is that he is still in the service of the Defendant, his contract of employment having not been determined. In the alternative payment of damages for wrongful determination of his employment and malicious prosecution. The claimant by a letter of employment dated 20th May 2008 joined the services of the defendant with his posting to Jos. Sometime in 2011, the claimant was redeployed to the defendant branch in Idah, kogi state. It was at Idah that on July 4th 2012, an incidence of fraud occurred in the department of the claimant. 4. Sequel to the above, the claimant was arraigned before the chief magistrate court Lokoja on the allegation of criminal misappropriation where he was tried and later discharged and acquitted by the court, upon his release on administrative bail, the claimant reported to the office (Bank), but the operation Manager instructed the security men to drive him out of the Bank. 5. The claimant wrote a letter to the defendant vide his lawyer demanding his call back to work and payment of his salaries and dues but same proved abortive. The claimant claims he was never at any time either at the time the allegation of fraud was made against him or during and/or at the conclusion of his trial, he was neither suspended from service nor his employment determined. The claimant salary account was frozen and was never allowed to resume work with the bank. 6. THE CASE FOR THE DEFENDANT. 7. One Richard Agbedetse, Area Control Manager of the Defendant in Idah, Kogi State, testified in defence of the Defendant as DW1. DW1, after taking oath, informed the Court that he deposed to Witness statement of oath on 7/2/19. After identifying the witness statement on oath DW1, informed the Court that he want his witness statement on oath to be taken as his evidence in this case. 8. According to the evidence in the witness statement on oath, the claimant was employee of the defendant until sometime in July 2012, when the claimant abandoned his duty post without putting the Defendant on notice formerly in breach of paragraphs 5 and 8 of the terms and conditions of his employment with the Defendant. DW1 testified that the claimant has been cautioned severally by his Supervisor in Idah Branch of the Defendant on the need for him to be up to his duty to avoid any financial misappropriation. DW1, also testified that the claimant while working as cashier at idah branch of the defendant, alongside others were arraigned before the Chief Magistrate Court, Lokoja on allegation of fraudulent activities which occurred at the claimant’s department in July 2012 and one of the defendants in the criminal charge, Lawal Abdullahi (now convict), a Teller, collected the sum of six Million, Seven Hundred Thousand Naira N6,700,000.00 from customers of the defendant without posting same into the different accounts of the customer but converted same into his personal use. It was stated that Lawal Abdullah (now convict) who was under the supervision of the Claimant stated that he handed over the money to the claimant and due to the complicity of the claimant in the case and to retain the image of the defendant from those defrauded customers of the defendant, the claimant was advised to resign his employment with the defendant as it will be difficult for the claimant to abide by paragraphs 3, 4, 5 and 6 of the terms and conditions of his employment with the defendant while facing criminal trial before the chief magistrate court Lokoja kogi state. 9. It was stated that the claimant willingly and grossly breached paragraphs 3, 4, 5 and 8 of the terms and conditions of his employment with the defendant which defendant signed voluntarily. The claimant breached paragraphs 3, 4, 5 and 8 of terms and conditions of his employment as the claimant abandoned his duty post for more than 6 years without putting the defendant on notice in writing formerly. 10. It was the defence of the defendant that the claimant was arrested along with Lawal Abdullah (now convict) who was under the supervision of the claimant by the Nigeria Police at the instance of some customers of the Defendant i.e Director of Chisco Book and one Asibi a lady from Federal Polytechnic Venture who were defrauded when their monies were never posted into their accounts. The arrest and prosecution of the claimant was by the police in the performance of their statutory duty. 11. Under cross-examination DW1, testified that all what he deposed is not what he was told by staff in Idah Branch. He was not working at the Branch at that time. He was not aware that the claimant was discharged because he did not read the outcome of the case. He was not aware he wrote to the Bank after the judgment. He did not present any evidence of caution or query. He never attended court session during the prosecution of the claimant and Lawal Abdullahi. He met the claimant before now as a staff of UBA Idah. He met the claimant during the period of issue of fraud. He was queried he was not asked to bring evidence. Staff makes contribution for pension. The pension contribution is deducted from salary. There is nothing to show claimant has been dismissed from the bank. He did not follow the case at Magistrate Court. After the report to police the Bank does not have anything with the court. DEFENDANT’S FINAL WRITTEN ADDRESS 12. The defendant submitted two issues for determination. They are:- I. Whether the claimant has proved his case with credible and believable evidence in line with the extant laws in order to be entitled to the reliefs sought? II. Whether the claimant who committed breach of duties contract can seek protection of this Honourable Court? 13. Counsel argued the two issues formulated for consideration together. 14. The defendant’s counsel started by submitting that the provision of section 132 of the evidence act, 2011 imposed burden of proof in suit or proceeding such as the instant one on the claimant and this burden of proof of his heavy weather case can only be discharged with credible evidence i.e the claimant must prove in what manner the said term and conditions of contract of employment were breached by the employer. He refers to the case of ACHONU V OKUWOBI (2017) 14 NWLR (PT. 1548) PG. 124 AT PP. 178-179 PARAS G-B (SC) AND OFORISHE V N.G.C LTD (2018)2 NWLR (PT.1602) PG. 35 PARAS D-E (SC) 15. Counsel submitted that by the terms and conditions of the claimant employment, the claimant is duty bound to notify the defendant formally for whatever reason any day he would not be available to work for effective staff planning and thus, the claimant herein breached and by paragraph 9 of Exhibit CWA1-5, the defendant is not bound to give the claimant any notice or pay him any money in the event of dismissal for gross negligence or fraud and that a misconduct is what the employer considers to be a misconduct and on this counsel commend the case OYEDELE V I.U.T.H (1990) 6 NWLR (PT. 155) PG. AT P. 199 PARA. D. 16. It is the contention of counsel that the claimant who committed breaches of duties as contained in Exhibit CWA 1-5 cannot seek protection of this Honourable Court as he who comes to equity must come with clean hands. To support this contention counsel relied on the case of PDP V SHERRIFF (2017) 15 NWLR (PT. 1588) PG 219 AT P. 283 PARA. C (SC). 17. It is also the contention of counsel that the claimant’s claim that he wrote a letter to the defendant through his lawyer demanding his call back to work and payment of his salaries and dues but same proved abortive. The defendant denies that the purported letter was not addressed to the defendant nor same received by the defendant and urged the court to so hold and discountenance the purported letter. 18. Counsel contended on the issue of malicious prosecution, that the criminal complaint of fraud was made by the customers of the defendant whom the defendant owes duty of care to protect from financial fraud and the police in exercise of their powers under the sections 4, 23, 27 and 28 of the police act, got the claimant and one Lawal Abdullahi (now convict) arrested and prosecuted in line with our extant laws. Counsel contended it is the duty of citizen of Nigeria to report cases of commission of crime to the police for investigation. In support of this contention counsel relied on the cases of UDO V ESSIEN (2015) 5 NWLR (PT.1451) PG.83 P. 103, PARAS F-G, ONAH V OKENWA (2010) 7 NWLR (PT.1194) 512, 19. It is contended by counsel that the case of MADUKA V UBAH (SUPRA) AT P.228 PARA. H, decided that, under cross-examination on oath that under the Nigerian adversarial judicial system criminal matters such as fraud/criminal misappropriation are generally between the state and accused persons counsel urged the court to discountenance the unfounded allegation of malicious prosecution. 20. It is the contention of counsel on the issue of the alleged frozen of account, that same only exist in the figment of imagination of the claimant as the claimant failed woefully to prove the unfounded assertion the claimant failed to produce and tender his statement of account in order to enable this honourable court make necessary inquiry into the entries in line with the provision of section 51 of the evidence act, 2011 nor did the claimant give notice to produce to the defendant ABDULKAREEM V LAGOS STATE GOVT. (2016) 15 NWLR (PT.1535) PG.177 AT PP.210 PARAS. E-G; 240 PARA C, 21. Counsel contended that the claimant who has not only breached the terms and conditions of EXHIBIT CWA 1-5 but has also been in employment of a Gas plant in Abuja since July 2012 as an accountant cannot be allowed both in law and equity to grant the relief 1 and alternative relief 1 and urge your lordship to so hold that as a party cannot be allowed to benefit from his own wrong. On this submission counsel relied on the cases of ADEGOKE MOTORS V ADESANYA (1985)5 SC 11 AT 139, APC V PDP (2015) 15 NWLR (PT.1481) PG 1 AT PP. 78-79 PARAS. G-F (SC) 22. On Relief 2 of the claimant’s claim, counsel submitted that as rightly admitted on oath under cross-examination by the claimant himself, pension is for the pensioners/the retirees and not otherwise, so the claimant who is not a pensioner or retiree is not entitled to any pension. 23. It is the contention of counsel that for the claimant to succeed on his reliefs he has the onus to prove same with credible and cogent evidence and this burden cannot be achieved through inconsistent evidence. On this contention counsel relied on the cases of SOWEWIMO V STATE (2004) ALL FWLR (PT. 203) 951 AT 968, PER TOBI, JSC AND EZEMBA V IBENEME (2004) 122 LRCNS 123 WHERE THE APEX PER EDOZIE, JSC (RETIRED) HELD THUS; “no witness who has given on oath, two materially inconsistent evidence is entitled to the honour of credibility, such witness does not deserve to be treated as a truthful witness” 24. In conclusion counsel submitted that the claimant’s case is built on fabrication, falsehood and breaches of duties/contract of employment, therefore urged the court to so hold and dismiss the instant suit with substantial cost. On this contention counsel refer to the case of MINI LODGE LTD V NGEI (2009) 7 NWLR (PT. 1173) PG. 254 AT P. 227 PARAS. A; E-F (SC). Claimant’s Final Written Address 25. The claimant started his submission by objecting to the admissibility of the evidence of Richard Agbedetse, the sole witness of the Defendant, arguing that his evidence is hearsay evidence. He says that a witness is expected to testify on oath or affirmation, on what he knows personally, where witness gives evidence on what another person told him about an event then, it is not direct evidence. On this contention counsel refers to the sec, 37 and 126 of the Evidence Act 2011, as well as the cases of ONOVO V MBA (2014) 14 NWLR (pt 1427) 391, OPARA V A.G OF THE FEDERATION (2017) 9 NWLR (pt 1569) 26. It is the contention of counsel that the sole witness for the defendant under cross examination admitted that he knows nothing about the matter except what he was told by those who were there at UBA Idah Branch when the event occurred, which is a build up to this case 27. Counsel contended that based on the above, the law is settled that hearsay evidence is not admissible in the court of law as they do not represent the truth of what happened, and that it is very unsafe for any court to act on such evidence except for some few exceptions which if submit do not apply to this case. Counsel urged the Court not to act on the evidence of DW1. 28. From the evidence before the court, the claimant submits that the following issues calls for determination in this case. 1. Whether the employment of the claimant has been determined by the defendant, if the answer is yes, whether such determination was in line with his contract of service? 2. Whether the claimant has proved his case to be entitled to the reliefs sought by him? 29. In arguing issue ONE, The claimant’s counsel starts by submitting that a contract is a written or spoken agreement especially one concerning employment, sales, tenancy, that is intended to be enforceable by law and that like every other form of contract, a contract of employment is governed by the terms and conditions in which parties are bound to follow at all times. Counsel argued that the terms and conditions of the claimant’s employment with the defendants in this instant case (Exb. CWA 1-5) para. 9 provide thus; “After confirmation of employment, UBA services shall at all times give 1 month notice except in the event of dismissal for gross negligence or fraud. 30. It is contended flowing from the evidence before this court, there is nothing to show that any notice was given to the claimant before terminating his employment nor was there any letter of suspension or dismissal sent to him and also, even after he was discharged and acquitted of the allegation against him in February 2018, he instructed his solicitor to write to the defendant for his reinstatement, the defendant refuses/neglected to do so. 31. Counsel contended that such determination of contract of employment of the claimant having been done without any notice to the claimant is contrary to his contract of service, he refers to the cases of UNION BANK OF NIGERIA V. FRANCOS OKENWA (1994) AELR 4226 (CA) PER. AYOOLA J.C.A (AS HE THEN WAS) PAGE 10 PARA A-B 32. It is the contention of counsel that the panel which was purportedly set up by the defendant after hearing the responses from the claimant and reinstate him, decided to be silent, (herein refers to the additional evidence of claimant) and that this piece of evidence was not challenged by the defendant. UZOEGWU VS IFEKNADU (2001) F.W.L.R) (PT. 72)V PG 1950 AT 1967 PARAS D-E “It was held that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seized of the proceedings to act on the unchallenged evidence before it” 33. To buttress the above submission counsel submitted that there is no evidence on record that the case of fraud or gross misconduct was established against the claimant, no panel indicted him neither was he convicted by the court. Counsel urged the Court to resolve this issue in their favour. 34. In arguing Issue TWO; Counsel contended that they have demonstrated and proved the breach of his contract of employment by way of constructive dismissal without notice by the defendant contrary to the terms and conditions of his employment and the court carries a sacred duty to enforce contracts freely entered to by the parties. On this point reliance was placed on the case of BEST (NIG) LTD V. BLACKWOOD HODGE (NIG) LTD & 2 ORS (PT 1239) 95 AT 117. 35. And that having established that the defendant is in breach of contract of service, it follows that the claimant is entitled to damages for the breach and for every legitimate entitlement which are due to him GABRIEL ATIVIE VS KABEL METAL NIG. LTD (2018) LPELR 591 (SC). 36. Counsel contended that the prosecution of the claimant was solely done by the police in exercise of their power, it was submitted that the assertion is not the correct position as it was the defendant that instigated the entire prosecution, counsel refers to exhibit CWE1-19. Counsel urged the Court to resolve this issue in their favour of the claimant. COURT’S DECISION. 37. I have considered all the processes filed in this suit as well as written and oral submissions of counsel for both sides. 38. A resume of the facts that led to this suit goes as follows; the Claimant was employed by the Defendant vide exhibit CWA1-5, on 20/5/2008. Exhibit CWA1-5, contains terms and conditions regulating the claimant’s employment. The appointment of the claimant was confirmed is exhibit CWB On 29/7/12009. The claimant continued to serve the defendant as bulk teller at Jos business office of the defendant until May 2011, when he was redeployed from Jos to Idah Branch office of the Defendant in Kogi State, as cashier. It was while he was at Idah Branch that the Claimant along with One Lawal Abullahi was arraigned before the Chief Magistrate Court, Lokoja, kogi State, on allegation of fraud, which was alleged to have occurred at the claimant’s Department sometime in July 2012. The claimant stated that after he was grant administrative bail he went to the Defendant to resume his work but was prevented by the Security on the instruction of the Operation Manager. However, the Claimant vide exhibit CWE1-19, was discharged and acquitted of the charges of fraud leveled against him. The Claimant stated that the Defendant never at any time before or during and/or at conclusion of the trial at Chief Magistrate Court wrote to suspend the claimant from service nor determine his employment, but froze his salary account No. 1022734915 with the Defendant. After his discharge and acquittal the Claimant’s counsel wrote to the defendant vide exhibit CWF1-2, demanding his recall back to work and payment of his salaries and dues but the Defendant failed/refused to respond to the Claimant’s request for recall. 39. The Defendant in the defence before the Court stated that the Claimant and Lawal Abdullahi (now a convict) connived to defraud the defendant and her customers. Due to complicity of the criminal allegations and to retain the image of the Defendant from those defrauded customers of the Defendant and the public, the Claimant along with Lawal Abdullahi (now a convict) were advised to resigned their employment with the Defendant more so that it would be difficult or absolute impossible for them to abide by the terms and conditions of their employment with the defendant as embedded in exhibit CWA1-5 particularly paragraphs 3, 4, 5 and 8 thereof. 40. According to the Defendant the claimant abandoned his duty post without putting the Defendant on notice formerly in breach of paragraphs 3, 4, 5 and 8 of exhibit CWA1-5. The prosecution of the Claimant is at the instance of the customers of the Defendant and at the discretion of the police in the exercise of their statutory duties. The claimant willingly and grossly breached the terms and condition in exhibit CWA1-5. The Defendant denied being served with the exhibit CWF1-2. The Claimant is now in employment of a gas plant in Abuja without putting the Defendant on notice on gross breach of exhibit CWA1-5. 41. From the pleadings and evidence of the parties; the question to be resolved is whether the Claimant has proved his entitlement to the reliefs claimed. 42. Before proceeding to resolve the issue calling for determination, I would like to start by dealing with the objection raised by the Claimant to the evidence of the only witness of the Defendant. 43. The counsel for the Claimant has contended that the evidence of DW1 (Richard Agbedetse) the only witness for the Defendant is hearsay evidence and should be discountenanced. The claimant in support of this contention refers to the evidence of DW1 extracted in the course of cross-examination. According to counsel DW1 stated that he knows nothing about the matter except what he was told by those who were there at UBA Idah Branch when the event occurred which is a build up to this case. He also conceded that what he deposited was what was told to him as to what transpired. Counsel contended that the law is settled that hearsay evidence is not admissible in the court of law as they do not represent the truth of what happened. It is very unsafe for any court to act on such evidence except for some few exceptions which does not apply to this case. Counsel urged the court not to act on the evidence of DW1 as same cannot be used to establish the truth of the event and it relate to this. Counsel also urged the court to accept the evidence of the Claimant as having proved his claim. 44. It is surprising that counsel for the Defendant did not deemed it necessary to file reply to the objection of the Claimant to the admissibility of the evidence of the sole witness of the Defendant. Ordinarily, the failure, neglect, omission or choice of the counsel for the Defendant not to respond to the preliminary objection raised by the Claimant is to be presumed as the Defendant’s concession to the issue raised by the Claimant. See the cases of NNAMANI v NNAJI  7 NWLR (610) 313; AKANBI v ALATEDE (2000) FWLR (i) 928; OHIA v OMEGARA & ORS (2008) LPELR - 8385 (CA). However, it is the law that a preliminary objection is still to be considered on its merit. In other words, the absence of a reply from the defendant and his deemed concession to the preliminary objection does not equate to automatic success or sustaining of the objection raised. This Court still has the duty to consider if the objection is sustainable in law. See MACHIKA v IMAM & ORS (2010) LPELR - 4448 (CA); AGBABIAKA v OKOJIE  15 NWLR (897) 503 at 522." Per OBASEKI-ADEJUMO, J.C.A. (Pp. 3-4, Paras. 45. Although the Defendant did not reply to the above arguments in support of the preliminary objections of the Claimant to the admissibility of the evidence of DW1, this Court would still consider if the said arguments have merit. The reason being that where one party in a case has argued a point whether of law or fact, he thereby invites the Court to judicially determine the issue so argued. The argument serves to invoke and guide the courts judicial inquiry into the issue. The contrary or alternative argument by the other side is to provide an alternative or balanced guide for the Court on the matter. The absence of such reply cannot be taken to mean that the pending argument represents the law and the facts of the case. It is the state of the facts on record and the existing relevant law that will determine the validity of such argument and not the absence of an alternative or contrary opinion. It will help the substantial justice of the case if the merit of the pending argument is considered on the basis of the facts before the Court and the existing law relevant to the facts of the case. See ECHERE v. EZIRIKE (2006) All FWLR (Pt. 323) 1597 at 1608, TRACTOR & EQUIPRIENT (NIG) LTD & ORS v. INTEGRITY CONCEPTS LTD & ANOR (2011) LPELR-5034, JOHN HOLT VENTURES v. OPUTA (1996) 9 NWLR (pt.470)10, NNAMANI v. NNAJI (1999)7 NWLR (610) 313, AKANBI v. ALATEDE (2000) FWLR (1) 928. 46. The evidence of DW1 as contained in the record of proceeding of the Court has been reproduced in the earlier part of this judgment. A careful perusal of the said evidence of DW1 given under cross-examination will clearly show that DW1 did not in his evidence said that the evidence he gave before the court was what was told to him. The evidence under cross-examination clearly shows that DW1 all what he deposed to was not what was told to him by staff in Idah Branch of the Defendant. Albeit he was not working at Idah Branch when the incident that led to filing of this suit took place. This piece of evidence debunked the claim of the Claimant that DW1 stated that what he told the Court was what he was told by staff in Idah Branch. 47. However, it is to be noted that in the witness statement on oath of DW1 filed on 7/2/19, in paragraph 1 DW1 stated that he was Area Control Manager of the Defendant in Idah Brance and that he has consent and authority of the defendant his employer to deposed to the witness statement on oath. In paragraph 3 he stated that the facts deposed to in the witness statement on oath are facts within his knowledge gotten in the process of performing his duties as the Branch Manager of the Defendant, Idah Business Office in Idah Local Government. 48. From the foregoing, paragraphs of the witness statement I have no doubt in my mind that DW1 evidence as contained in the witness deposition on oath and the oral testimony are derived from the performance of his duties. And the Defendant being an artificial entity cannot give evidence except through agents and DW1 being agent of the Defendant is well qualified to give evidence for and on behalf of the Defendant. The objection of the Claimant fails and is hereby dismissed. In support of this view see the cases of KATE ENTERPRISES LTD V DAEWOO NIGERIA LTD (1985) 2 NSCC 942, ISHOLA V SOCIETEE GENERALE BANK NIG. LTD (1997) 2 NWLR (PT.483) 405, QUO VADIS HOTELS & RESTAURANTS LTD V COMMISSIONER OF LANDS (1973) 3 ECSLR 416, SALEH V BANK OF THE NORTH LTD (2006) 6 NWLR (PT.976) 316. In COMET SHIPPING AGENCIES NIG. LTD V BABBIT NIG. LTD (2001) 7 NWLR (PT.712) 445, it is held that manager’s testimony founded on what his subordinates told him is admissible and not hearsay. However, it must be understood that the mere fact that the evidence of an agent is held to be admissible does not mean that weight must be attached to it. The weight to be attached is another ball game. 49. The Defendant’s defence was that the Claimant abandoned his duty post in July 2012 without putting the Defendant on notice formerly in breach of paragraphs 5 and 8 of the terms and conditions of the Claimant’s employment as contained in exhibit CWA1-5. The evidence before the court which is not disputed is that a fraud was discovered in the Department where the Claimant is working to the tune of over N6 Million Naira, where customers that deposited money were not credited into their accounts. The claimant’s maintained that this incident was reported to the police by the Defendant consequent upon which the Defendant handed over the Claimant to the police who arrested him and detained him. That immediately after the arrest of the Claimant the Defendant froze his salary account where he had over N200,000.00. 50. For the Defendant the case of fraud was reported to the police by Director of Chisco Books and one Asibi of Polytechnic Ventures. The Defendant maintained that the report to police was never done by the Defendant. And that the police by arresting the claimant and prosecuting him they were performing their constitutional and statutory duties. 51. The evidence before the court is clear as to the role of the Defendant in the arrest and detention of the claimant as well as his prosecution. The Defendant cannot be seriously taken to contend that he had no role played in the travails of the Claimant. The evidence to the effect that the Claimant’s salary account was frozen immediately after his arrest by the police clearly debunked the Defendant claim that it has no role in the report, arrest and detention and prosecution of the Claimant. The Defendant’s claim is further put to lie by exhibit CWE1-19, the judgment of the Chief Magistrate Court that discharged and acquitted the Claimant in this suit. it is evident from exhibit CWE1-19, that two members of staff of the Defendant testified as prosecution witnesses in the Charge filed against the Claimant filed before the Chief Magistrate Court, Lokoja. 52. The Claimant had stated that upon securing administrative bail he came to report to work but he was sent away by the security men on the instruction of the operation Manager. With this damning evidence the Defendant cannot be heard to complain that it did not know or been aware of the predicament of the claimant. The Defendant having been in the picture of the entire scenario that led to the arrest detention and prosecution of the Claimant is estopped from asserting that the Claimant abandoned his duty post and thereby breached paragraphs 3, 4, 5, 6 and 8 of the Exhibit CWA1-5. 53. The Defendant’s claim that the Claimant abandoned his duty post is put to lie by the assertion of the Defendant that following the arrest and detention and charging of the Claimant before the Magistrate Court along with one Abdullahi (now convict), they were asked to resigned their employment this is in order for the Defendant to maintain the confidence of its customers. This is a proof that the claimant is in full glare of the Claimant’s predicament and ordeal he has been undergoing. 54. The assertion that the report to police was lodged by the Director of Chisco Books Ltd and Asibi who are customers of the Defendant remain un-established. The reason being that the duo are customers of the Defendant and the Defendant has not called the Director of Chisco Books as witnesses to testify before the court. It is only one Asibi that testified and she never mentioned that she reported the Claimant to the Police. The law is long settled that he who asserts must prove. The Defendant has failed to prove the assertion that it is her customers that reported the fraud to the Police. 55. DW1, in his testimony claimed that the Claimant was cautioned severally but he failed and neglected to produce the caution or query issued to the Claimant in that respect. This assertion also remain mere assertion without proof. 56. The main claim of the Claimant is that he is still in the service of the Defendant and entitled to all his salaries and allowances from the date of his arrest in July 2012 to the 9/2/18 when he was discharged and acquitted of allegation of fraud levelled against him. In the alterative the Claimant is calling on the Court to order the Defendant to pay him the sum of N10,000,000.00 (Ten Million Naira), as damages for wrongful dismissal and malicious prosecution. 57. The Claimant has established by way of evidence that he was employed by the Defendant in year 2008 and being a confirmed member of staff he is entitled to one month notice or payment of one Month salary in lieu of notice. The Claimant has asserted that the Defendant did not suspend him nor issue him with termination notice. And that upon being released on bail after his arrest by the police and subsequent charge, he returned to the office of the Defendant to resume work but was driven away by the security men on the instruction of the operation Manager. He also stated that upon being discharged and acquitted his counsel wrote to the Defendant requesting that he should be allowed to resume work and all his salaries and allowance paid to him from the date of his arrest in July 2012 to 9/2/18, when he was discharged and acquitted by the Court and subsequently. 58. The Defendant’s defence is that the Claimant breached the contract of employment by abandoning his duty post. I have found earlier that the Claimant never abandoned his duty post but he was denied and refused to resume his duties by the officers of the Defendant after securing administrative bail. 59. It is clear as day light from the evidence adduced before the Court that the Defendant never suspended the claimant from work when he was arrested by the police on allegation of defrauding the Defendant and her customers. He was equally not suspended nor did his employment formerly determine when he was charged before the Chief Magistrate Court Lokoja on allegation of fraud. Rather the Defendant through DW1 stated that because of the incident of arrest and detention of the Claimant he was advised to resign his appointment with the Defendant. The act of the Defendant in advising the Claimant to resign his appointment, freezing of the Claimant’s salary account and refusal to allowed the Claimant resume work after securing administrative bail, all goes to show that the Defendant was no longer interested in retaining the Claimant in its service. The denial of access to his office by the Security guards of the Defendant also supports the view that the Defendant no longer requires to retain the Claimants in its service. However, the Defendant deliberately refused to take advantage of the provisions of exhibit CWA1-5, to determine the contract of the Claimant. 60. The law is as solid as rock of Gibraltar that an employer that employ is equally invested with power to terminate the claimant’s appointment. This power can be exercised at any time with or without reason. The Claimant is equally free to discontinue with his services if he so wishes. This means both the claimant and the Defendant are free to do away with each other provided they follow due process as stipulated in the terms and conditions of the employment. See ACB V EWARAMI (1978) 4 SC 99, OKOMU OIL LTD V ISERHIENRHIEN (2001) 3 SC 140. 61. In the case of master and servant the relationship is generally governed by the terms of the contract. In this case exhibit CWA1-5. By all means the servant is expected always to be of good behavior or conduct by diligently serving the employer and protecting the employer’s property and in good harmony with the customers of the Defendant. see OSAKWE V NIGERIAN PAPER MILL LTD (1998) 7 SC (Pt.ii) 108 62. The Defendant clings to the defence of abandonment of duty post by the Claimant which is a misconduct that can attract summary dismissal. But the Defendant failed or neglected to take action to exercise its disciplinary control over the Claimant which may result in summary dismissal from service. The Defendant’s failure and neglect to activate the power conferred on it to discipline the Claimant for gross misconduct is fatal to the claim that the Claimant abandoned his duty post. I have early in this judgment held that the Claimant did not abandon his duty post. Rather it was the Defendant that does not want continues with the employment relationship with the Claimant. 63. The claimant ought to realize that as willing as he might be to work for the Defendant, the law is settled that the Defendant cannot be compelled to accept him. All that this court can do is to ensure Defendant complies with terms and conditions of employment as contained in exhibit CWA1-5. See OBO V COMMISSIONER OF EDUCATION BENUE STATE (2001) 1 SC (pt.ii) 52. 64. Since the Claimant employment is that of master and servant this Court cannot grant declaration that the Claimant employment subsist and is still in force. 65. On the alternative relief which is for payment of damages for wrongful dismissal and malicious prosecution. 66. The issues raised by the alternative reliefs are two folds; one damages for wrongful dismissal and two malicious prosecutions. 67. On malicious prosecution, the Claimant contended that the arrest, charge and prosecution of the Claimant was instigated by the Defendant thus why the claim for malicious prosecution. For the Defendant the arrest, charge and prosecution of the Claimant was based on the report lodged by some customers of the Defendant that were defrauded. It was also contended that the police by the arrest, charge and prosecution of the Claimant were performing their official function. 68. It is to be noted that malicious prosecution is a cause of action on its own right different from the claim of damages for wrongful dismissal. For the claim of malicious prosecution to be maintained before this court the Claimant has the herculean task of establishing that head of claim or reliefs falls within the ambit of the provisions of section 254C of the Constitution of the Federal Republic of Nigeria and the provision of section 7(1) of the National Industrial court At 2006. 69. I have carefully studied the provision of section 254C of the Constitution as amended and that of section 7(1) of NICA 2006, and it is clear to me that there is no item amongst the items of jurisdiction listed in the provision of the Constitution and statute that deal or confer jurisdiction on this Court to hear and determine claim of malicious prosecution. In the circumstances the part of the claim of the Claimant dealing with malicious prosecution is hereby struck out for lack of jurisdiction. As determining that issue will result in nullity. See MADUKOLU V NKEMDLIM (1962) 1 ALL NLR 584. 70. On the claim for damages for wrongful dismissal, presupposes that the claimant’s employment was determined by the Defendant not in accordance with the terms of the contract of employment. It has been shown in the early part of this judgment that the Defendant did not issue any letter to the Claimant suspending, terminating or dismissing the Claimant from service. All that happened was that upon securing administrative bail from police after his arrest, detention and charge of the Claimant before the Magistrate Court, the Claimant went to resume work at the Defendants office where he was working but he was denied access to the office by the defendant. The Defendant in its pleading and through DW1 stated that the Claimant was advised to resign his appointment so as to enable the Defendant continue to maintain its relationship with its customers and for them to have confidence in the Defendant. 71. The conduct of the Defendant in freezing the Claimant’s salary account, denying the Claimant access to his office and the advising him to resign his employment all goes to establish constructive dismissal of Claimant by the Defendant from service. The issue raised here is on discharge of contract of service by breach or by incapacity or by repudiation. It is well settled that repudiatory breach better known as fundamental breach or breach that goes to the root of the contract. Such a breach as in this case may lead to discharge of contract of service without any need for acceptance. See PAUSARD V SPEERS & POND (1876) 1 QBD 410. 72. It is clear from the conducts of the Defendant enumerated above amount to fundamental breach which goes to the root of the contract, even though the claimant elected to keep the contract going. 73. All I have been saying above is that it is the Defendant that constructively by conduct and action determined the Claimant’s contract of service without following due process. The determination of the Claimant contract of service is therefore wrongful in law, as the Defendant did not go by the terms of the contract as stipulated in exhibit CWA1-5. The constructive dismissal took effect from the day the Claimant was driven away by the Security Men at the office of the Defendant on the instruction of the operation Manager. That is to say four days after his arrest by the Police on 4th July of 2012. This findings means that the Claimant will not be entitle to make claims of his salaries and allowance from the date he was driven away from the Defendant premises to the date of his discharge and acquittal as per exhibit CWE1-19. 74. It is now settled beyond peradventure that in a matter involving master and servant relationship, the dismissal/termination of an employment in a manner that is inconsistent with the terms of the employment agreement connotes only wrongful dismissal/termination of appointment but not to declare such dismissal null and void. The only remedy is a claim for damages for that wrongful dismissal. See the cases of UNION BANK OF NIGERIA PLC V OGBOH (1995) 2 NWLR (Pt.380) p.664 and EZEKWERE V GOLDEN GUINEA BREWERIES LTD. (2000) 8 NWLR (Pt.670) p. 648, WESTERN NIGERIA DEVELOPMENT CORPORATION V JIMOH ABIMBOLA (1966) NMLR 381, NIGERIA PRODUCE MARKETTING BOARD V A. I. ADEWUNMI PART 2, (1972) 1 ALL NLR 433, where the apex Court says as follows:- ‘’in a claim for wrongful dismissal, the measure of damages is prima facie the amount that the plaintiff would have earned had the employment continued according to contract. (see Beckham V Drake (1849) 2 H. L. Cos 579 at pages 607-608. Where, however, the defendant, on giving the prescribed notice, has a right to terminate the contract before the end of the term, the damages awarded, apart from other entitlements, have been earned by the plaintiff over the period of notice, bearing in mind that it is the duty of the plaintiff to minimize the damage which he sustains by the wrongful dismissal’’. 75. Also In BCC Plc v. Ager  9 NWLR (Pt. 1199) 292 SC, the apex court held that where the Court makes a finding of wrongful termination or dismissal, a payment in lieu of notice will apply. 76. Applying the above enunciated principle law to the facts of this case, the Claimant as a confirmed staff would only be entitled to the sum of N102,000.00 (One Hundred and Two Thousand Naira) being one Month salary in lieu of notice. See also INTERNARIONAL DRILLING CO. (NIG.) LTD V AJIJALA (1976) 2 SC (REPRINT) 64 @ 73-74, paras 25-26. The claimant had testified under cross-examination that he is working with a Gas company in Abuja as an accountant; this admission has shown that the claimant has taken the challenge of minimizing damage by securing employment. This has knock off his claim for salaries and damages. To award any other claim either in terms of salaries and allowances or damages apart from one month salary in lieu of notice stipulated in the contract of service agreement exhibit CWA1-5, will amount to double compensation, which the law prawns at. 77. On the claim for an order directing the defendant to unfreeze the claimant’s salary account No. 1011734915, the Defendant argued that the claimant has not frontloaded nor tendered his statement of account, therefore the claimant has proved the claim. The account which was frozen is domiciled with the Defendant so how can the claimant have access to the statement of account when everything about the account is with the Defendant. I am of the view that the Defendant has indirectly admitted freezing of the Claimant’s salary account. I am satisfied that the Claimant is entitled to have his account unfrozen to allow him have access to his funds. In the circumstance I hereby ordered that the Claimant’s account be unfrozen by the Defendant to allow him access his funds. 78. On issue of pension contribution it is regulated by law. Employer’s pension is not pad directly to the employee. It is paid to the employee’s Pension fund administrator of his own choice (PFA). The Claimant has stated that his pension with Pension Alliance Limited (PAL) from 2008 to June 2012 and the said Pension Alliance Limited (PAL) was not made a party to this suit and there is no evidence of the contribution which the claimant is seeking order to be made for him to access. The Claimant has also in his testimony under cross-examination stated that he is now working as an accountant with a Gas Company in Abuja. With this admission of being in employment the Claimant cannot have access to his Pension Fund in accordance with the law until the time when he is no longer in service. therefore the claimant is not entitled to the order directing Defendant to take steps that will enable him access his pension contribution until he is no longer in any employment. This order is premature and same is hereby refused. 79. On the whole, the Claimant’s case succeeds in part and only in terms of the following orders:- The Defendant is hereby ordered to pay the Claimant the sum of N102,000.00 (One Hundred and Two Thousand Naira) only, being one Month salary in lieu of notice for wrongful dismissal. The Defendant is hereby ordered to unfreeze the Claimant’s Salary account No. 1011734915, with immediate effect to enable the Claimant access his funds. The Defendant is hereby ordered to pay cost to the Claimant in the sum of N500,000.00. All judgment sums are to be paid within 21 days from the date of this judgment failing which it will attract 10% interest per annum until finally liquidated. 80. Judgment is entered accordingly. Sanusi Kado, Judge. REPRESENTATION: A. S. Idoko, Esq; for the Claimant No. representation for the Defendant.