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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: FEBRUARY 12, 2015 SUIT NO: NICN/LA/58/2013 BETWEEN MATHIAS ODEH & ANOR. - Claimant AND JMG LIMITED - Defendant REPRESENTATION C. J Okoro for the Claimant. Olusola Salau for the Defendant. JUDGMENT On 12/2/13, the Claimants approached the Court via a General Form of Complaint. By their amended statement of facts dated 14/5/13 and filed 14/6/13 Claimants sought the following reliefs - 1. A Declaration that the dismissal of the Claimants by the Defendant on 14th January 2013 via a letter on ground of gross misconduct without any form of hearing from them was wrongful, illegal and a breach of contract of employment and principle of natural justice. 2. An ORDER of this Court for: a. A letter of apology from the Defendant to the Claimants. b. For the payment of the sum of =N=5,520,000.00 to the 1st Claimant and the sum of =N=7,200,000 to the 2nd Claimant which are the amount the Claimants would earn if they had remained in the service of the Defendant. c. For the payment of life insurance of the sum of =N=828,000.00 and =N=1,440,000.00 to the 1st and 2nd Claimants respectively. Both the Claimants and the Defendant filed all the requisite processes as mandated by the Rules of this Court. The trial of this case commenced on 2/12/13 when 1st Claimant testified as CW1, adopted his written witness deposition dated 14/6/13 as his evidence in chief and tendered four Exhibits. The Exhibits were marked as Exh. MO1-Exh. MO4. Witness also adopted his written statement on oath dated 3/5/13 as his additional evidence and urged the Court to grant his prayers. The case for the Claimants were that they were employed by the Defendant via the letters dated 28th March 2011 and 18th April 2011 ; that the 1st Claimant was employed on the 18th April 2011 as Factory Assistant while the 2nd Claimant was employed as Mechanical Technician on the 28th March, 2011; that they were working with the Defendant until a false allegation of stealing an Automatic Voltage Regulator was leveled against them by one of the staff of the Defendant Company at the Ikotun Police Station; that they were consequently arrested and detained based on the false allegation; that they were tortured and humiliated by the police on the allegation of the Defendant through Mr. Fuad and that the Police refused to release them when reliable surety came to bail them. The Claimants stated further that it took the intervention of their Lawyer who called the DPO of the Ikotun Police Station where they were detained before the 2nd Claimant was released; that after the release of the 2nd Claimant, the Police agreed to release the 1st Claimant on payment of huge sum of money which was paid by the relations of the 2nd Claimant; that after their release, the said Mr. Faud also instigated the Police to come to their house for search of the said Automatic Voltage Regulator (AVR) alleged to have been missing in the Defendant’s office; that the Police did not find AVR in their house or any other incriminating object but the said Mr. Faud rather took some property which rightly belonged to them to the Police station without any justification. The Claimants further averred that the Police had refused to return the said property to them till date; that after searching their homes, the Defendant hired some of the staff at the Company to go and make a false report to the Police that they were thieves and had stolen the said AVR to enable the Police have enough witness to prosecute the Claimants; that the staff hired indeed went to the Police Station but refused to make the false report; that as the Defendant was unable to pin any crime on the Claimants, they suspended them indefinitely without pay; that they were later issued dismissal letters dated 14th January, 2013 by the Defendant and that the said dismissal was unjustifiable as they were not accorded fair hearing. Under cross examination on 2/12/13, CW1 stated that there was no letter given to him for renewal of his appointment after the initial 6 months; that there was no letter confirming his appointment with the Defendant and that he was told at the Police Station that AVR machine of the Defendant was stolen. Witness testified further that he knew Benjamin Ariyo - Chief Security Officer of the Defendant; that he did not know if Benjamin Ariyo reported anything to the Management of the Defendant; that Yes he was invited to Benjamin Ariyo’s office in respect of the missing AVR; that no property of the Defendant was found in his locker; that he was asked about the missing AVR; that his Locker was searched and nothing was found there; that himself and the 2nd Claimant were arrested and handcuffed from the premises of the Defendant and taken to Ikotun Police Station; that he did not know where AVR was kept; that he did not make any statement admitting that some property of the Defendant were found in his Locker; that his residence was searched by the Police and the CSO and nothing incriminating was found there; that by virtue of his profession he use to do work for other people outside; that he was on a full time employment with the Defendant; that Nose Protector is sold in the market for anybody to buy and that none of his personal items taken to Ikotun Police Station was returned to him. Witness added that no item was recovered from his locker; that after he was released from Police Station, the Defendant suspended him in respect of the items they claimed were stolen; that upon conclusion of investigation by the Police he was dismissed by the Defendant for gross misconduct and that the Defendant is not an insurance company. In re-examination, witness stated that after the 1st 6 months of his employment he continued to work and the Defendant also continued to pay his salary and that the missing AVR was not found in his house or his locker. 2nd Claimant testified as CW2. CW2 adopted his statement on oath made on 14/6/13 as his evidence in chief and tendered three documents as exhibits. The documents were admitted and marked Exh. OH1 - Exh. OH3.Witness urged the Court to find in favour of the Claimants. Under cross examination CW2 testified that he was told on 9/11/12 that AVR Machine was stolen; that he was then inside the Defendant’s factory working; that Mr. Benjamin the Chief Security Officer of Defendant invited him to his office that day regarding the missing AVR; that his locker was searched and no items of Defendant were found there; that no item was found in the locker of the 1st Claimant too; that he was arrested in the premises of Defendant and taken to Ikotun Police Station; that he discovered at the Police Station that himself and the 1st Claimant were arrested in connection with the missing AVR; that he made statement at the Police Station but did not admit to stealing anything; that his residence was searched during the investigation; that the items recovered from his residence were his personal property; that Police returned one of the items recovered to him; that he was suspended by the Defendant to conduct investigation into the missing AVR; that he was subsequently dismissed by the Defendant; that the Defendant is not an insurance company and that there is no contract of insurance between him and the Defendant. In re-examination, CW2 stated that the items not returned to him by the Police are his personal property; that he was not dismissed because of fraud and that the missing AVR was not found in his house. On 19/2/14, the Defendant opened its defence and called two witnesses. Ayodeji Ojo Omoniyi was called as DW1. Witness adopted his written statement on oath dated 27/8/13 as his evidence in chief and tendered four documents as exhibits. The documents were admitted and marked as Exh. D1 - Exh. D4. The case for the Defendant as deducible from its pleadings are that the 1st Claimant was employed as Factory Assistant under an employment contract dated 18th April, 2011 for a period of six months only with effect from that date; that the employment contract under which the 1st Claimant was employed expired on October 17, 2011; that upon the expiration of the contract of the 1st Claimant on the 17th October, 2011, it neither renewed, confirmed or entered into any formal or written contract of employment with the 1st Claimant even though the 1st Claimant remained on the payroll of the Defendant as a Factory Assistant and paid N23,000 monthly. The Defendant also averred that the 2nd Claimant was employed as a Mechanical Technician via a letter dated 28th March, 2011 and the terms and conditions of the said employment were stated in the letter of employment; that under Clause 5 of the terms and conditions of the letter of employment of the 2nd Claimant on the separation policy, the Defendant has the right to terminate without prior notice and to dismiss the 2nd Claimant without any liability for compensation or damages on the occurrence of any material breach of contract, fraud, bankruptcy or disability. It was the case for the Defendant that on the 9th November, 2012, the Chief Security Officer of the Defendant received a report from one Mr. Jephter, a Supervisor and staff of the Defendant about missing Voltage Regulator in his office; that on informing the Management of the incident, the Management of the Defendant ordered the search of the staff, during which some alternator box hinges and Generator relays were found in the lockers of the 1st and 2nd Claimants without authorization and knowledge of the Defendant or its Management; that the 1st Claimant was found at the scene of the crime on the said 9th November, 2012 when the said AVR was stolen. The Defendant further averred that the case of stealing being of criminal nature, the Management ordered the Chief Security Officer of the Defendant to make a formal report at the Ikotun Police Station and the Chief Security Officer did report the case of stealing on behalf of the Defendant at the Ikotun Police Station; that the 1st and 2nd Claimants were invited to the Ikotun Police Station for further investigation where the 1st and 2nd Claimants were charged and cautioned in English language; that it placed the 1st and 2nd Claimants on suspension on the 12/11/2012 to enable the security operatives carry out their investigation of theft/stealing in Ikotun Office; that the house of the 1st Claimant was searched at No 5, Unity Street, off Liasu, Ikotun and the properties of the Defendant such as Nose Protector, Yellow Rain Cape with Racket and Socket were recovered by the Police upon investigation; that at the house of the 2nd Claimant at 13, Lawoya Street Bakare B/stop, Ikotun the properties of the Defendant such as 19 pieces of Alternator Box hinges, 12 Volt Relay, a Triangle-Mouth panel key and a 266 Volt Meter were found and recovered. The Defendant further stated that the 266 Volts Meter was however returned to the 2nd Claimant on bond because it was identified as not being part of the Defendant’s property; that all its properties recovered from the residence of the 1st and 2nd Claimants respectively were registered as exhibits by the Police during the investigation; that the 1st and 2nd Claimants took its properties out of its premises without any form of authorization or pass from the Management; that the Automatic Voltage Regulator value N140,000 was stolen from the premises of the Defendant and the Claimants were seen at the scene of the crime; that on conclusion of the investigation, the Defendant dismissed both Claimants with effect from 17th January 2013 for gross misconduct; that it applied for the Police investigation report in respect of the case of stealing and the Police issued same on the 6th March,2013; that the Defendant denies ever frustrating and suffering the Claimants for no just cause nor instigating the Police to come to the house of the Claimants for search of the missing Automatic Voltage Regulator. The Defendant averred that none of its staff or members of its Management made any false allegation against the Claimants; and that the Claimants were not tortured by the Police in the course of investigating the allegation of theft against them; that it did not take any property belonging to the Claimants to the Police Station but averred that one Nose Protector, Yellow Rain Cape with Racket and Socket, 19 pieces of Alternator box hinges, 12 Volts Relay, a Triangle-Mouth Panel Key found in the houses and office lockers of the Claimant respectively are part of Generating set stolen during their employment with the Defendant. The Defendant averred that it dismissed the Claimants on the ground of dishonesty and misconduct after a thorough investigation had been conducted by the Police and the culpability to the crime of stealing/theft was established by the Police against the Claimants; that it dismissed the Claimants in accordance with the tenets of the law and after they have been given fair hearing in accordance with the terms and conditions of the employment of the Claimants; that the Claimants were given fair hearing by the Defendant as the case of theft and stealing against them was thoroughly investigated by the Police at the Ikotun Police Station where the Claimants defended themselves by writing their respective confessional statements and confessed to the crime of theft and stealing.; that it left the issue of investigation with the Police since it did not have the power to investigate allegation of theft and stealing which borders on crime against the Claimants, and that upon conclusion of their investigation, the Police found that the Claimants had a case to answer; that upon the conclusion of the investigation, the Police wanted to arraign the Claimants in court for offence of stealing and theft, but they jumped bail and ran to this court to file an action for unlawful dismissal; that it did not enter into any contract of insurance with the Claimants and since it is not an insurance Company it is not entitled to pay any insurance claim whatsoever to the Claimants and that it is not indebted to the Claimants at all. Under cross examination, DW1 testified that as Human Resources Manager he understands the workings of the Defendant; that 1st Claimant’s employment was a contract one for 6 months; that 1st Claimant had a Supervisor; that 1st Claimant had resumption and closing time; that he was paid about N23,000 or N26,000 and that after the initial 6 months he was working as a casual worker and still paid the same salary. According to the witness, there are different conditions of service for contract staff and casual workers; that he could remember how much 1st Claimant was paid after the expiration of the 6 months of contract service; that 1st Claimant was still paid salary and had a supervisor; that once a contract service is not renewed the staff becomes a casual worker; that the Supervisor and the Management determine whether to renew or not; that in most cases Defendant gives a letter of renewal and that once this is not given a staff becomes casual worker. Witness stated that Defendant has a Legal Department; that he had not asked Defendant's Lawyer what is meant by implied contract; that the contract of service states the conditions between the Defendant and its employees; that 1st Claimant was not given any notice of dismissal of employment; that he was dismissed for gross misconduct; that the Dismissal was not based on Police report; that the Defendant went through 3 stages before taking the decision; that the Claimants were queried by the Chief Security Officer bordering on stolen property; that Police were invited and Claimants placed on suspension so as not to interfere with investigation; that the Police sent the Report of Investigation to the Defendant; then Management of Defendant met and took decision to dismiss the claimants; that there are structures and people who carry out responsibilities with the Defendant; that four members attended the Management meeting where decision was taken to dismiss the Claimants; that this was after sitting on the Police Report; that the Claimants were dismissed for gross misconduct; that one of the accusations was that Defendant’s items were found in the custody of Claimants without authorisation; that Police went to the Claimants' homes for a search and recovered Defendant items; that the items were branded JMG; that the items were specially branded JMG; that the CSO checks who comes in or goes out of Defendant premises; that parts of the components of AVR were found with the Claimants; that the Supervisor of Defendant balanced the stocks of Defendant; that the Claimants were disengaged for gross misconduct and not necessarily because of the missing AVR; that 2nd Claimant was not disabled before dismissal and that he did not know if the 2nd Claimant was declared bankrupt. According to the witness, 2nd Claimant’s locker was within the premises of the Defendant; that Supervisor issues tools for work and also keeps the tools; that the tools are balanced every day; that there have been cases of stealing of tools by staff in the past and that the tools found in the Claimants' lockers were not the ones allocated to them to do their work. The Defendant also called one Ariyo Oluwole Benjamin as its DW2. DW2 adopted his written deposition on oath dated 27/8/13 as his evidence in chief and tendered one document. The document was admitted as exhibit and marked as Exh. D5.Witness then urged the Court to find in favour of the Defendant. Under cross examination on 19/2/14, DW2 stated that his duties as Chief Security Officer of Defendant include securing lives and property of Staff of the Defendant and ensuring that sabotage did not exist; that he did not invite Police to arrest Claimants; that he did not arrest the Claimant; that he only reported a case of stolen AVR and other items to the Police; that Management directed him to search the premises and on doing so he found some property of the Defendant in the lockers of the 2nd Claimant and then reported to the Police; that before that he gave the Claimants verbal query; that in response 2nd Claimant was hostile when he discovered the items in his locker; that he said he had been keeping the items in his locker for a long time; that the locker was in the Defendant premises and that he did not know if the items were working instrument. DW2 stated that he believed the Claimants were employed to couple the Generators; that he did not say that he recovered some items from Claimants houses but rather that the Police while searching the homes of the Claimants recovered some items belonging to the Defendant there; that the Production Manager identified the items recovered as belonging to the Defendant; that Claimants did not tell him anything about those items recovered but rather they made statements to the Police; that he did not know if those items recovered are sold in the market though the items did not have Defendant’s logo on them; that if the issue of dismissal had not arisen, Claimants would have still continued to work with Defendant but that he did not know if they would have worked for the next 20 years. At the close of trial, the Court directed learned Counsel on either side to file their final written addresses. The final written address of the Defendant was dated and filed on 2/4/14. Three issues were set down for determination by the Defendant as follows - 1. Whether from the preponderance of evidence adduced before this honourable court, the 1st and 2nd Claimants were wrongfully dismissed by the Defendant. 2. Whether parties are bound by the terms of their contract. 3. Whether 1st and 2nd Claimants are entitled to the reliefs sought. Learned Counsel argued issues 1 & 2 together and submitted that where the contract of employment is a mere master and servant relationship, the Master has unfettered right to terminate or even dismiss the servant; that the motive for doing so is immaterial and that an employer is at liberty to terminate a servant's employment with or without any reason, citing Dudusola v. N.G. Co. Limited (2013)10 NWLR (Pt. 1363) 423. Counsel referred to the evidence of DW1 to the effect, among others, that the Claimants were dismissed for acts of gross misconduct, one of the accusations being that the Defendant's property were found in the custody of the Claimants without authorisation. Counsel submitted that by the conduct of the Claimants, the Defendant was entitled to discipline them; that some of the property recovered from the lockers and houses of the Claimants belonged to the Defendant; that the Defendant considered the conduct of the Claimants to be injurious to its business and that in the circumstance the Defendant is entitled to dismiss the Claimants, citing Eze v. Spring Bank Plc (2011)18 NWLR (Pt.1278) 113 (SC). On issue of fair hearing, Counsel noted that DW2 testified that the Claimants were queried before their arrest by the Police in the premises of the Defendant; that same was corroborated by the testimony of DW1 and that both Claimants also admitted under cross examination that the Chief Security Officer of the Defendant invited them to his office and asked them questions about the missing AVR. Learned Counsel therefore submitted that where an employer accuses an employee of misconduct by way of a query and allows the employee to answer same before taking a decision on the employee's employment that satisfies the requirement of fair hearing, citing Imonikhe v. Unity Bank Plc (2011)12 NWLR (Pt. 1262) 625. In any event, Counsel submitted, Exh. MO1 & Exh. OH1 that is the contract of service between the parties did not provide for fair hearing and hence the application of fair hearing in this case is a mere privilege and not a right of the Claimants and that if it were to be otherwise, the Defendant will cease to have both the initiative and control over its employees. Counsel cited David Osiagwu v. A.G. Anambra State (1993)4 NWLR (Pt. 285) 13 at 43. Counsel pointed out that 1st Claimant failed to state the terms and conditions governing his employment; that 1st Claimant was employed by Exh. MO1 which had expired after 6 months and which was never renewed; that he held his employment at the pleasure of the Defendant and that he had no right to be heard before being dismissed, citing LCRI v. Mohammed (2005)11 NWLR (Pt. 935) 1. Counsel urged the Court to resolve these two issues in favour of the Defendant. Issue 3 is whether the Claimants are entitled to their reliefs. Counsel pointed out that Claimants' claim is for the amount they would have earned if they had remained in the service of the Defendant. Learned Counsel submitted that the law is trite that in an action for wrongful dismissal, the aggrieved party cannot treat the contract as still subsisting but must proceed as if he has been wrongfully dismissed. Counsel cited Ilodiba v. Nigeria Cement Company Limited (1997)7 NWLR (Pt. 512) 174. According to Counsel, where an employee is rightly dismissed, no damages will be awarded and that in cases of wrongful dismissal, an aggrieved employee's remedy is in award of one month's salary, citing UBN Plc v. Soares (2012)11 NWLR (Pt. 1312) 550. As regards the claim for life insurance, learned Counsel submitted that under cross examination, both Claimants testified that there was no contract of insurance with the Defendant and that the Defendant is not an insurance Company that pays claims. Counsel therefore submitted that Claimants had failed to discharge the burden of proof in respect of their claims, citing Sections 131 & 132, Evidence Act, 2011, Swiss-Nigeria Wood Industries Limited v. Bogoco (1971)1 UILR (Pt. 11) 337 and Adejumo v. UCH Board of Management (1972)2 UILR (Pt. 11) 145. Learned Counsel urged the Court to dismiss the claims of the Claimants with substantial cost same being speculative and unfounded in law. The Claimants' final written address was dated 20/4/14 and filed on 25/4/14. Learned Counsel to the Claimant set down the following three issues for determination - 1. Whether the first Claimant is an employee of the Defendant 2. Whether the Claimants were given fair hearing, and whether the Claimants were wrongfully dismissed 3. Whether the Claimants are entitled to their claim. On issue 1, learned Counsel referred to Exh. MO1 and stated that the Defendant admitted that 1st Claimant continued to work after the first 6 months. Counsel submitted, relying on OAU v. Onabayo (1991)5 NWLR (Pt. 193) 549, that a servant is deemed to have been re-appointed and continued, if after his probationary period, although not specifically confirmed in writing, is encouraged to continue to work by his Master and duly paid for his continued services by the Master. According to learned Counsel, the Defendant retained the services of the 1st Claimant in the same condition he was employed, received the same salary, did the same work, resumed and closed from work the same time he was employed. Counsel urged the Court to find in favour of the Claimants. On issue 2, learned Counsel submitted that the Claimants were not issued any query before they were dismissed or called by any officer of the Defendant or its administrative body to explain their side of the case of the missing property before they were dismissed. Learned Counsel cited Sani v. FCDA (2007)46 WLN 82 and Bishi v. JSC (1999)6 NWLR (Pt. 1971) 331 and submitted that fair hearing is a precondition to dismissal. According to Counsel, the argument by the Defendant that Claimants were given verbal query was not contained in the Defendant's pleadings and that in any event verbal query does not meet the requirement of fair hearing citing UBA v. Ogboli (1991)1 NWLR (Pt. 167) 369. Counsel thus urged the Court to resolve this issue in favour of the Claimants. Issue 3 is whether the Claimants are entitled to their claim. On this, learned Counsel referred the Court to paragraphs 22, 23 and 24 of the Claimants' amended statement of facts and submitted that Claimants would have worked for 20 and 15 years respectively had they not been dismissed by the Defendant. According to Counsel, these averments not having been countered by the Defendant must be deemed admitted. Counsel submitted, referring to NRMAC v. Johnson (2007)49 WRN 123 that in a claim for wrongful dismissal, the measure of damages is the amount that the Plaintiff would have earned had the employment continued according to the contract. Learned Counsel finally submitted that the Claimants were wrongfully dismissed by the Defendant; that other employers have refused to employ them by virtue of their current status as dismissed employees and that their remedy is in damages as prayed in their claim. Counsel urged the Court to grant the claims of the Claimants. On 8/5/14, learned Counsel for the Defendant filed a 3-page document titled Defendant's Written Address on Point of Law. In it learned, Counsel set down yet four Issues for Determination. I perused the Rules of this Court. I found no provision permitting the learned Counsel to file the document as filed and raise another set of issues for determination. It is, l dare say, imperative for learned Counsel to be very familiar with the Rules of Court where they practice; and comply with same as directed. The procedure sought to be adopted by learned Counsel to the Defendant via his Defendant's Written Address on Point of Law is strange to the practice and procedure and indeed the Rules of this Court. It is thus more in the interest of justice that I do not dissipate useful energy on reflecting the content of the said document in this Judgment. I discountenance same accordingly. This judgment was initially slated to be delivered on 15/1/15. Unfortunately, the Judiciary Staff Union of Nigeria (JUSUN) embarked on an industrial action from 5/1/15 to 25/1/15. Although this Judgment was ready as at that date for delivery it could not be delivered due to the reason stated. Hence Hearing Notices were issued and served on Counsel to attend Court today for this Judgment. I listened to the testimonies of all the witnesses called by both sides in this case as well as watched their demeanor. In addition, I read with understanding all the processes filed by either side in this case. These include all the pleadings and the final written addresses of Counsel. I also reviewed and evaluated all the exhibits tendered. Having done all these, I have come to the conclusion that a lone issue arises for the just determination of this case. The issue is - Whether the Claimants in this case have proved their claims to be entitled to a grant of same. When a Claimant approaches the Court for a grant of a relief or reliefs, he is merely asserting his entitlement to same against his adversary. The assertions are contained in the pleadings and they are not proof thereof. It is thus incumbent upon him to prove same. This is because the Court is neither a Father Christmas nor a place where you ask and receive. The asking before the Court must be backed by proof and the proof must be by credible and admissible evidence. This is an hybrid of the old but ever valid principle of law that he who asserts must prove his assertion, see Onovo & Ors. v. Mba & Ors. (2014) LPELR-23035 (SC). In an action for wrongful termination of employment or wrongful dismissal, it is mandatory for the Claimant, in order to succeed, to place before the Court his contract of employment or letter of employment which contains the terms and conditions of same. It is the position of the Law that the Claimant must thereafter prove to the Court from the terms and conditions of his employment how and in what manner the termination of his employment was wrongful. It is certainly those terms and conditions that the Court will examine and construe without consideration of any extraneous matters. See Angel Spinning and Dyeing Limited v. Ajah (2000)13 NWLR (Pt. 686) 532. I need to state from the onset that the success or failure of the Claimants' claims rests on the contract of service or terms of employment they had with the Defendant. Exh. MO1 is the 'Employment Contract' between the 1st Claimant and the Defendant. It was dated 18/4/11. The employment of the 1st Claimant was brought to an end via a letter of Dismissal dated 14/1/13. Exh. MO1 contained various terms including Contract Fee, Work Hours, Contract Medical, Lunch, Contract Period, Termination Notice and First Day at Work. The provision under Contract Period is to the effect that the employment would be for a period of 6 months. Exh. MO1 did not contain any provision relating to Probation. Although the 1st Claimant worked with the Defendant till 14/1/13 in an employment contract with six month duration, as rightly pointed out by DW1 & DW2 there was no formal contract of service between the 1st Claimant and the Defendant. I hold that the contract of employment between the 1st Claimant and the Defendant came to an end by effluxion of time on 17/10/11. In the circumstances therefore, the 1st Claimant was merely in the Defendant's service at the pleasure of the Defendant and in which case he cannot complain as regards the mode of bringing his service to an end. I so find and so hold. Having earlier stated the position of the law that the terms and conditions of employment form the basis upon which this claim of the 1st Claimant rests, I hold that the claims of the 1st Claimant fail in their entirety and are accordingly dismissed. With respect to the 2nd Claimant, the terms and conditions of his employment are contained in Exh. OH1 titled Offer of Employment. It was dated 28/3/11. This exhibit contains diverse Clauses. Clause 5 deals with Separation Policy. The clause states thus - 'Termination of Employment During the period of your probation, either you or the Company may terminate this contract by giving to the other 2 weeks notice or One Month notice on confirmation in writing or by payment to the other in lieu of notice. The computation of this payment shall be based on basic salary. The Company shall also have the right to terminate this Contract without prior notice and to dismiss you without any liability for compensation or damages on the occurrence of any material breach of contract, fraud, bankruptcy or disability that makes it impossible to discharge your duties'. There is no gainsaying that provisions in relation to termination of employment is an essential and fundamental part of contract of employment. Such provisions as in the instant case provides the parties the right to and in what circumstances the right to bring the relationship to an end may be exercised. The last portion of Exh. OH1 conferred on the Defendant the right to dismiss the 2nd Claimant without notice in certain stated circumstances. One of such circumstances is fraud. Now, the facts of this case as deducible from pleadings, the testimonies of DW1 & DW2 coupled with Exh. D5 which was the report of Police investigation, I hold, point to fraud within the context of Clause 5 of Exh. OH1. Exh. MO3 and Exh. OH3 are the letters of dismissal of the 1st and the 2nd Claimant respectively. They were both dated 14/1/13 and the contents were the same. By the first paragraph of the two exhibits, the Claimants were individually notified of the decision of the Management of the Defendant to relieve them of their duties ''with effect from 17th January 2013, as a result of gross misconduct''. In a master/servant relationship, the right of the master to discipline the servant will continue to remain unfettered. Discipline in this regard may take mere warning, suspension, termination or dismissal. Where the employer hinged dismissal of his employee on ground of gross misconduct, judicial intervention will not come to the rescue of the employee since what constitutes gross misconduct is determined by the employer. The position of the law is also that where there is allegation of commission of crime, an employer need not await the outcome of the criminal prosecution before taking steps to discipline his employee. See Eze v. Spring Bank Plc (2011) LPELR-2892 (SC) & Ekunola v. CBN & Anor. (2013) LPELR-20391 (SC). From the foregoing therefore and the state of the law, I find and hold that the dismissal of the Claimants by the Defendant on ground of gross misconduct is not wrongful, illegal or a breach of contract. The declaration sought to the same effect is thus refused and dismissed accordingly. Relief 2 is for An ORDER of this Court for: a. A letter of apology from the Defendant to the Claimants; b. For the payment of the sum of =N=5,520,000.00 to the 1st Claimant and the sum of =N=7,200,000 to the 2nd Claimant which are the amount the Claimants would earn if they had remained in the service of the Defendant. c. For the payment of life insurance of the sum of =N=828,000.00 and =N=1,440,000.00 to the 1st and 2nd Claimants respectively. Having refused and dismissed the first relief which is for declaration on the wrongfulness of the dismissal of the Claimant, the second relief cannot stand. For, you cannot put something on nothing and expect it to stay. It must certainly collapse. Having so found and held, I further hold that all the reliefs sought by the Claimants are necessarily predicated on the construction of the terms and conditions of their contract of service. Claimants claim for a letter of apology from the Defendant is predicated on the first relief. Thus, the first relief having failed and dismissed, there is no foundation upon which a claim for letter of apology will stand. It is therefore refused and dismissed accordingly. The claim for the payment of the sum of =N=5,520,000.00 to the 1st Claimant and the sum of =N=7,200,000 to the 2nd Claimant which are the amount the Claimants would earn if they had remained in the service of the Defendant finds no support in both law, commonsense and logic. The employment of the 1st Claimant I found and held to be at the pleasure of the Defendant with the right of the Defendant to bring same to end at will and the right of the 1st Claimant to also leave at will. On the other hand the 2nd Claimant had a contract of employment, Exh. OH1, with terms and conditions well stated. One of such is Clause 5 of Exh.OH1 under which the Defendant dismissed the 2nd Claimant. I hold that this relief fails there being no proof of same. In any event, Co-Operative Bank Limited v. Nwankwo (1993)4 NWLR (Pt. 286) 170 is a good authority for the proposition that a dismissed staff cannot claim wages for services he never rendered. See also Olatunbosun v. NISER Council (1988)3 NWLR (Pt. 80) 25. The last claim is for the payment of life insurance of the sum of =N=828,000.00 and =N=1,440,000.00 to the 1st and 2nd Claimants respectively. 1st Claimant being in service of the Defendant at the pleasure of the latter has no basis to make this claim. Indeed,1st Claimant testified under cross examination on 2/12/13 that the Defendant was not an insurance Company and was neither charged with payment of insurance claims. As regards the 2nd Claimant, I perused Exh. OH1 which is the basis of contractual relationship between him and the Defendant. I found a clause in it titled Group Personal Accident Policy the provision under this is that -''All employees are insured under the provisions and conditions of this policy, which gives a 24-hour cover in the event of accidental injury and/or death''. There is also provision relating to Workmen's Compensation Policy. Also on 2/12/13 while under cross examination, 2nd Claimant testified that the Defendant was not an insurance Company and that there was no contract of insurance between him and the Defendant. It is trite that averments in pleadings are not proof. Averments in pleadings must be proved by concrete and credible evidence to attract positive disposition of the Court. I find and hold that there is no proof of the entitlement of the Claimants to a claim for payment of any sum for life insurance by the Defendant to the Claimants. This claim is therefore refused and dismissed. For the avoidance of doubt and for all the reasons as contained in this Judgment, all the reliefs sought by the Claimants are refused and dismissed in their entirety. Judgment is entered accordingly Hon. Justice J. D. Peters Presiding Judge