Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: February 02, 2015 SUIT NO. NIC/EN/20/2013 Between Mr. Azorom Christian Reginald Onyewuchi - Claimant And 1. Imo State Civil Service Commission 2. Governor of Imo State Defendants 3. Attorney General of Imo State Representation: U. S. Chukwu for the Claimant B. N. Amagheronu, Chief State Counsel, Imo State Ministry of Justice, for the Defendants JUDGMENT By a Complaint dated and filed on the 29th January, 2013, the Claimant sought for the following reliefs against the defendants jointly and severally: (a) A DECLARATION of the honourable court that the period of 30th December 1979 to 13th September 1985 being the period the claimant was absent from duty on account of study leave without pay while in the service or employment of the 1st defendant does not count and should not be included in the computation of years of pensionable service of the claimant in the service of the 1st defendant. Provided that the period during which the claimant served in the National Youth Service (NYSC) is not covered by the declaration or subsequent orders. (b) An Order of the honourable court compelling the defendants to deduct the said period of 30th December, 1979 to 13th September, 1985 from the period of service of the claimant in the employment of the 1st defendant (excluding the period of NYSC Service). (c) An Order of court restraining the defendants by themselves, or their agents, servants, workmen or privies from making use of the said period of 30th December, 1979 to 13th September, 1985 in the computation of the duration of claimant's employment with the 1st defendant. (d) A DECLARATION that the circular or notice issued by the agent of the 1st defendant, dated the day of November, 2012 to the effect that the claimant will retire from the services of 1st defendant on the 2/2/2013 on grounds of length of services is wrongful, null and void and of no effect whatsoever and ought to be set aside. (e) An order of the honourable court restraining the defendants by themselves, their servants, workmen, agents and privies from retiring or dispensing with the services of the claimant before the 2/2/2017; the claimant not having completed 35 years of service in the public Service of Imo State or attained the age of 60 years before then. (f) An order of court restraining the defendants from withholding the claimant's monthly salary and other benefits accruing to his employment and from ejecting the claimant from where he is resident at the Senior Service Quarters of the Ministry of Agriculture Owerri Imo State which the claimant occupies by virtue of his employment anytime before 2/2/2017. The Complaint was accompanied with an Affidavit in verification of the endorsement on the complaint, Statement of Facts establishing the cause of action, the Claimant’s written deposition on oath, list of witnesses, list of documents and copies of documents to be relied upon at the trial. The Defendant entered appearance vide a motion for extension of time on the 2nd day of April 2013, and on the 17th day of October 2013, filed a Statement of Defence, list of witnesses, witness’ statement on oath, list of documents and copies of documents to be relied upon. Intervening preliminary applications were taken and resolved, and the case proceeded to hearing on the 9th day of April 2014. The parties fielded a witness each. The Claimant testified for himself as CW1, while Sam Ezeji, the Chief Administrative Officer in the office of the 1st Defendant testified as DW1. Hearing was concluded by the 9th day of July 2014, and at the close of the case for each of the parties, final written addresses were filed in accordance with the rules of this court, starting with the defendant. The defendant filed its written address on the 9th day of October 2014 and the Claimant’s written address was filed on the 31st day of October 2014. They adopted their respective written addresses on the 13th day of November 2014. The brief facts of the case as distilled from the pleadings, is that the Claimant was employed by the 1st Defendant from 2nd Feb, 1978 to 22nd Feb, 2013 when he retired from service after 35 years. The claimant applied for and was granted study leave without pay from 1979 to 1985 in the course of his employment. The claimant resumed his duties after his study leave without pay, earning all his notional increments during the period of his study leave and retained his position in the nominal roll. In a letter dated 9/11/2012, the 1st Defendant conveyed to the claimant approval for him to retire from the 1st Defendant with effect from 2nd Feb, 2013 having completed 35 years of service. Upon receiving that letter dated 9/11/2012 “Exhibit CRO 10 in the proceedings, the claimant filed this action alleging that the period of study leave without pay should not be included in the computation of his years of service. The claimant further alleges that the date for his retirement ought to be on 2/2/2017 when he claims he would have attained 35 years in service minus his years of study leave without pay. The defendants in their written address filed on 9th October 2014, formulated a sole issue for the determination of this Court, which is: “Whether the period of approved study leave without pay is included in the computation of years of service for the purpose of retirement of a civil servant”. In arguing the sole issue, Counsel for the defendants examined the legal meaning and import of the operating phrase “STUDY LEAVE WITHOUT PAY”. He submitted that study leave without pay has the same legal meaning with “LEAVE OF ABSENCE” He cited the black’s law Dictionary definition of “Leave of Absence” which was defined in the 6th Edition at page 891 as follows: - “Temporary absence from employment or duty with intention to return during which time remuneration and seniority are not normally affected. In the case of LAZARUS IGWE vs. ALVAN IKOKU COLLEGE OF EDUCATION OWERRI (1994) 8NWLR Pt. 363 Pg. 465 at 478 PARAGRAPH B, RATIO 1, the Court of Appeal, Port Harcourt Division defined “Leave” to mean “temporary absence from employment of duty with intention to return during which time remuneration and seniority may or may not be suspended”. What is common in both definitions as pointed out by Counsel is that the employee is temporarily absent from employment or duty with intention to return to work. What is deductible from the two definitions is that generally remuneration and seniority are not normally affected during the period of leave or leave of absence. However, remuneration and/or seniority may or may not be affected or suspended during the period of leave or leave of absence. For example remuneration is suspended where the leave of absence is an approved “Study leave without Pay”. It is Counsel’s submission that in all the situations whereby the affected employee temporarily stays away from duty or employment with intention to return to work whether his remuneration and seniority is suspended during the period of leave or not, the officer/staff remains on the nominal roll of employees of the employer during the period of leave or absence. His position is not declared vacant or filled up. There is no break in his employment. From the above definitions, it is clear that an employee who is on leave of absence is still in the employment of the employer for the period of the leave or absence. See the case of MBUKURTA vs. ABBO & ORS (1998) 6NWLR Pt. 554 PAGE at 464 PARAGRAPH E, RATION 3 where the Court of Appeal, Jos Division per OGUNTADE J.C.A. gave judicial authority to the above submission, namely, that an employee on leave of absence is still in the employment of the employer for the period of the leave of absence. It is further submitted that an employee on approved study leave without pay is said to be on leave of absence. This is because, such an employee is temporarily absent from employment or duty for the period of the approved study leave, and during this period his remuneration is suspended but his employment remains intact. His employment is not suspended, broken, or terminated during the said period of study leave without pay. In the case of LAZARUS IGWE vs. ALVAN IKOKU COLLEGE OF EDUCATION, OWERRI (SUPRA) MUNTAKA COOMASIE, JCA stated the position of the law in the following words at page 482 paragraphs E.F.S: “Where an employee is on approved study leave without pay, granted by his employer, he still remains a staff of the employer in the absence of any evidence that he was dismissed, relieved or had his appointment terminated.” EDOZIE JCA delivering the leading judgment in the same case at pages 478-479 paragraphs E-A of the report put the position of the law thus: “As indicated earlier, since it is common ground that the appellant was an employee of the respondent it goes without saying unless there is evidence to the contrary, that he is still the staff of the respondent.” It is Counsel’s submission that the position of the law is that an employee on approved study leave without pay is still in the employment of the employer during the period of study leave, the inevitable conclusion is that in computing the employee’s period of service for purposes of his retirement date, the period of leave of absence or study leave without pay will be included or added. To submit otherwise this state of the law cannot be amended or altered by an administrative directive, regulation or command. Section 31 of Imo State Civil Servant Commission Regulation; Section 31 of the Imo State Judicial Service Regulation and Rule 02809 of Imo State Public Service Rules, each of the Regulation and Rules referred to above are to the effect that a civil servant shall retire compulsorily on attainment of sixty (60) years of age or thirty five (35) years of service whichever is earlier. The Claimant was employed by the 1st Defendant as a Statistical Assistant on 2/2/1978. The 1st Defendant in a letter dated 9/11/2012 notified the claimant of his retirement on 2/2/2013. On 2/2/2013 the 1st Defendant retired the Claimant until which was 35 years of service on the Claimant. Despite the fact that the claimant falsified his date of Birth from 1956 to 1958, the 1st Defendant still retired him after 35 years of his service. So going by the provisions of the Regulations and the Rules of the Civil Service quoted above, the Claimant’s retirement on 2/2/2013 being the date he attained 35 years in service, and which is earlier than the date which he will be 60 years of age was properly done. The crux of the Claimant’s contention is that the period of his study leave without pay was a break in his period of service and therefore should be excluded in the computation of his years of service. He further relied on a letter or notice that the 1st Defendant issued to him that following his study leave without pay, his new date of Retirement is 2/2/2017. To the defendants, the said notice, if it is anything to go by, may have been issued in error. The Claimant would have put in 39 years on 2/2/2017. It has never been done in any civil service whether Federal or State that an Officer will remain in service after 35 years or 60 years of age, whichever comes first. A close examination of the Establishment letter granting the Claimant study leave without pay will finally dispose the argument whether or not the period of study leave without pay is break in service. Paragraph 2 of that letter which the claimant frontload reads as follows: “This approval is given on the clear understanding that you will not be entitled to automatic promotion on return to duty. On the other hand, you will have to return to your substantive post and your further advancement will depend on vacancies when you will be considered along with others.” Also, the Claimant’s re-instatement after completion of study leave without pay was granted with four (4) years notional increment with effect from his last incremental date. It is clear from the above that there was no break in the claimant’s year of service as a result of the study leave without pay. The Claimant automatically returned to duty after his study leave without pay. His increments during the period of study leave without pay were assured and granted. The Claimant was not required to re-apply or submit fresh application for employment, neither did he do so. The Claimant placed heavy emphasis on the letter by which the 2nd Defendant purported to grant approval for the waiver sought by Nigerian Labour Congress, Imo State branch in respect of the restoration of the period of study without pay for a select (favoured) 51 officers of which the Claimant was included. By the aforesaid waiver, the 2nd Defendant purported to exclude the period of study leave without pay in the computation of period of service of the named 51 select officers (inclusive of the Claimants) paragraph two of the aforesaid letter dated 19th April, 2011 with Ref. No. GH/PL/S.35/XIX/118A States:- “His Excellency has granted this waiver at his own discretion and without prejudice to the existing circular on the issue (Circular No. 12 of 2008).” According to Counsel, the Claimant frontloaded the list of names of the affected officers without frontloading the copy of the full letter that accompanies the list. The list he frontloaded makes no meaning because nobody knows what that list is all about. It was Counsel’s further submission that the existing circular on the issue forbids the action of the 2nd Defendant. It is not a matter in respect of which the 2nd Defendant can exercise discretion. It is a matter within the exclusive legislative list of the 1999 constitution of the Federal Republic of Nigeria as amended. The 2nd Defendant cannot by an administrative action or directive or command waive the Regulation/Rules of Civil Service predicated on law. It was not surprising therefore that the 2nd Defendant rescinded the waiver when his attention was drawn to the legal implications. Accordingly, the defendants cancelled the aforestated waiver and directed the 1st defendant to continue with the statutory retirement of the 51 officers affected by the waiver along with all other officers with similar case of study leave without pay. To Counsel, it is clear that the foundation of the Claimant’s reliefs is hollow and cannot sustain the claim/action. Counsel urged the Court to uphold the Claimant’s retirement. Still on the issue of waiver, Counsel for the Defence submitted that the approval granted by the 2nd defendant for the waiver sought by the organized labour for the restoration of the period of study leave without pay is in the nature of a collective agreement between an employer and union of employees. It is now settled that such agreement is not intended to create any legal relations giving rise to any contractual obligations, and are therefore not justiciable except where the terms of the agreement have been incorporated expressly or by necessary implication into the contracts of employment of the employees. In this case, there is no evidence before the Court that the understanding to grant the aforesaid waiver by the 2nd Defendant in favour of the 51 select (favour) officers of the organized labour was incorporated into the Claimant’s contract of employment. See the case of OSOH vs. UNITY BANK PLC. (2013) 9NWLR Pt. 1358 Pg. 1 at 26 – 27 RATIO 5. In the instant case, the terms of the said waiver were not incorporated into the conditions of employment of the claimant. There is therefore no privity of contract between the Claimant and his employer the 1st Defendant, which is fundamental to the enforcement of contractual obligations between the parties to the contract of employment. See OSOH vs. UNITY BANK PLC. (supra) at page 31 paragraph 31 paragraph E). In view of the foregoing, Counsel urged the Court to hold that the aforesaid waiver is of no consequence. Counsel went further to point out that the Claimant frontloaded some documents he felt were relevant to his case. During the cross examination of the Claimant by Defence Counsel, the Claimant denied and evaded the questions that were contained in the documents he frontloaded. He contradicted himself thereby making mockery of his case. For example he denied his conversion/promotion over and above his mates who did not go on study leave with pay as an advantage over his mate. He denied that his conversion/promotion or advancement after his study leave without pay was not a benefit. He also stated that there was a severance in his employment as a result of his study leave. He also stated that he did not know whether he re-applied for fresh employment after his study leave. Throughout his answers to his cross examination he denied the obvious in virtually all the questions put to him. Counsel submitted that “leave”, “leave of absence” and “study leave without pay” all connote a period of temporary absence from employment with intention to return during which time remuneration and seniority are not normally affected or may or may not be affected/suspended. Remuneration and/or seniority is affected or suspended when the employee by his own voluntary application (on his own volition) requests that his leave be without pay to enable him go for further study since he does not want to wait to take his turn to go for in service training which is a period of leave with pay. In all situations the service period is not broken. The Claimant’s period of study leave without pay was properly included in the computation of his year of service in determining his retirement date. Concluding, Counsel for the defendants submitted that having regard to the facts of this case and the applicable Laws, Rules and Regulations, the Claimant has failed to prove an entitlement to any of the heads of claim/reliefs in his Statement of Facts. He urged the Court to dismiss the action with costs, same being without merit. The Claimant in his Final written address filed on the 31st day of October 2014, gave a brief overview of the Claimant’s case thus: The Claimant applied for and was granted study leave without pay for a period of (4) four years excluding the one year compulsory national service. The Claimant was employed by the Imo State Government on 2/2/1978 and at the end of his study leave without pay, he was reinstated. The Claimant’s contention is that he will be due for retirement on 2/2/2017 just as the 1st Defendant acknowledged initially, but all of a sudden, the Defendants turned and threatened the Claimant with a letter dated 9/11/2012, wherein they stated the retirement date of the Claimant to be 2/2/2013 instead of 2/2/2017. Aggrieved by this, the Claimant came to this court seeking redress as stated above. Counsel for the Claimant proceeded to formulate the following issues for the determination of the Court: (a) Whether a circular issued by a Ministry or parastatal of government on the issue of pensionability or non-pensionability of period of study leave without pay, can supersede the provisions of the Pensions Act LFN 2004 on the same subject matter. (b) Whether a circular issued by the ministry or parastatal of a state can supersede the Imo State Public Service Rules. (c) Whether the period of approved study leave without pay granted to the Claimant should be included in the computation of years of service for the purpose of his retirement as a civil servant. According to Counsel for the Claimant, the evidences which are not in dispute show that the Claimant: a. Voluntarily applied for study leave. b. The 1st Defendant granted to the Claimant study leave without pay. c. That the Claimant accepted the grant, utilized it, and after the time of study leave without pay, applied to be re-instated into the service of the 1st Defendant and was accordingly reinstated. Counsel for the Claimant proceeded to raise objections to the admissibility of certain documents pleaded by the defendants during the trial. Counsel opposed any weight to be attached to the said documents. The grounds of their opposition are as follows: a. Document pleaded at paragraph 4 of the Defendant’s amended Statement of Defence is opposed on the ground that the Claimant has his correct birth date to be 25th November, 1958. The document produced by the 1st Defendant and having the claimant’s date of birth as 25/11/1956 is unknown to the Claimant. Again, the said document is in contradiction with the document of similar nature served on the claimant, which stated the Ministry of Agriculture and National Resources Owerri, 2013 retirement calendar. The said retirement calendar served on the Claimant with a letter dated 9th December, 2012, have the Claimant’s date of birth to be 25/11/1958. The Claimant also opposed the said document on the ground that, nobody asked him any question as regards to his age and he did not tender any document warranting any audit committee to come to the conclusion of reducing his real date of birth from 1958 to 1956. b. The Claimant also raised an objection to the document pleaded at paragraph 10 of the Defendants’ amended statement of defence as it relates to paragraph “c” of the document. Again, that document dated 16/10/2008 with establishment circular No. 11/2008, the Claimant had already been granted that period of four years of study leave without pay and reinstated long ago before that document was made. The law does not act in retrospective. Again, according to Counsel, the letter is not relevant in this proceeding following the earlier circular given to the Claimant that his retirement will be on 2/2/2017, this particular circular the effective date is June 2008, whereas the Claimant had already been granted study leave without pay since 1979 and had also be re-instated by a letter dated 6/9/1985 and 24/9/1985 respectively. c. The Claimant also raised an objection in respect to the document pleaded at paragraph 6 of the Defendant’s amended statement of defence, in that the document was not made available to the Claimant but was seen for the first time in Court. The Claimant is not aware of the existence of such circular, as the Defendant will not be allowed to approbate and reprobate at the same time. The said document was made in anticipation of these proceedings, having been made a week before the downsizing and rightsizing of the audit committee which allegedly brought down the age of the claimant without the Claimant’s forwarding any document to that effect. Arguments and Submissions on Issues raised: According to Counsel for the Claimant, the issues 1 and 2 raised can be effectively understood by stating the definition and the legal status of a public officer/servant in law. a. Who is a public officer/servant? b. What is the legal status of a public officer/servant? In the case of ABUBAKAR vs. GOVERNOR OF GOMBE STATE (2002) 17 NWLR [Pt. 797] 533 CA and Section 18 (1) of the Interpretation Act, 2004, “a public officer is said to be a member of the public service of the Federation or of a State within the meaning of the Constitution of the Federal Republic of Nigeria, 1999. The legal status of a public officer/servant had been held by the court in the case of OWOLARI vs. LOCAL GOVERNEMNT SERVICE COMISSION, EKITI STATE (2013) 34 N.L.L.R. [Pt. 100]. The National Industrial Court of Nigeria Lagos Division held that the Civil Service Rules invest in Public Servant a legal status and they cannot be properly or legally removed until the said Rules are strictly complied with. They went further to say that when an employment in the State/Local government is said to be statutory and/or an employment is regulated by the State Civil Service Rules or the Local Government Staff Rules, such employment is said to be constitutional. Counsel submitted for the Claimant in issues 1 and 2 together that where the provisions of the Constitution, and the Pension Act and the Public Rules of a state are clear in their language and intendment, it is the duty of the Court to apply the ordinary meaning of the words used. This is the decision of the Court in the case of OGUNDARI vs. FADAYIRO (1972) 8-9 SC cited in the case of OMEYENI vs. GOVERNOR OF EDO STATE (2004) All F.W.L.R and Section 14 of the Pensions Act, which states thus: “In the computation of qualifying service, no period during which an officer was less than or absent from duty on leave without pay shall be taken into account unless such absence was for the purpose of utilizing…” Again, Sec 13 sub (1) (b) “in calculating a pension and gratuity granted in accordance with the provision of this section, no account shall be taken of any period during which the officer was not in service”. To the Claimant, Exhibits CRO 7 and CRO 10 respectively are valid documents as they were issued in compliance with the provisions of pensions Act. The document pleaded in paragraph 5 of the Claimant’s statement of claim is also very relevant. By the public Rules 02107 (2001) which states “The employment of unpaid staff is prohibited” So counting the period of study leave without pay, as period of service of Imo State Government, runs contrary to the Civil Service Rules 02105 (1979) and also Public Service Rules 02107 (2001). It then means that if one is on study leave without pay, he is not on duty and cannot be said to be under employment because he is not paid. The Defendant alleges that the committee during the rightsizing and downsizing exercise, reduced the age of the Claimant from 1958 to 1956. The Claimant vehemently opposed such as no question was asked by the committee during the said exercise about his age. The committee as claimed by Defendants reduced the age of the Claimant without even communicating to him about the said reduction. In the case of PHCN vs. OFFOELO {2014} 41 N.L.L.R. (pt. 126), the Supreme Court held that “Proper communication of message in law has its importance. Where there is a failure to communicate (a break in communication or lack of communication) the whole purpose of the message is completely defeated. If any step or action is taken by the issuing authority inspite of the fact of non-communication (the step or action taken goes to naught and amount to a nullity in law” In that case, the learned Lords also made it clear in PHCN vs. OFFOELO (supra) that to force a public servant into retirement that is before he gets to his retirement age, is an unusual action against him in his career. The retirement of the respondent by the Appellant (in this case the Claimant by the Defendant) was a premature retirement which was capable of crippling the Respondent (in this case the Claimant). The said retirement is null and void and of no legal effect whatsoever. Hon. Justice Mary Peter Odili (JSC) in that case of PHCN vs. OFFOELO (supra) without mincing words frowned at the attitude of the Appellant, “the lack of respect for the statutes governing the employment of the respondent as shown by the Appellant (i.e.) PHCN cannot be tolerated and this court must in the strongest terms show its abhorrence to such action by an agency of the State application which ought to be a beacon of light in service albeit a senior civil servant as the Respondent, statutorily protested and covered cannot be hustled out of the office on the imagined powers of a superior officer who should know better. In the case of PSYCHIATRIC HOSPITALS MANAGEMENT BOARD vs. EJITAGHA (2000) 11 NWLR [Pt. 677] 154, the Supreme Court dismissing the appeal held that “A public body or authority invested with statutory powers must act within the law and take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it”. The Supreme Court also decided that “to force a public servant into retirement that is before he gets to his retirement age is an unusual action against him in his career unless it is on reason of ill-health, redundancy or unproductivity etc. Counsel added that in this case the Claimant was not sick; he was not redundant or unproductive. So there was no reason to retire him before 2/2/2017. To connect the above assertion to the case at hand, the Defendants relied heavily on the report of the committee during the downsizing and rightsizing exercise of public servant in Imo State and the Establishment circular No. 11/2008 and No. 12/2008 pleaded at paragraph 10 and paragraph 11 of the Defendant’s Amended Statement of Defence. Those documents, counsel said, are at variance with Section 14 of the Pension Act and Public Service Rules 02107 (2007) which prohibits the employment of unpaid staff. The Defendants saying that the Claimant was still in service after granting him study leave without pay goes further to state that the Claimant will not be entitled to automatic promotion on return to duty, “you will have to return to your substantive post and your further advancement will depend on vacancies when you will be considered along with others”. The Claimant in his pleadings and evidence in the court stated that he was converted to Agricultural Officer in the department of Agriculture which is his area of specialization and his advancement was based on his acquiring a higher degree which placed him higher than his counterpart. This Court has condemned in its entirety the action of the Imo State Government when it delivered judgment in the case of Dike vs. Imo State Civil Service Rules, where the Court condemned the action of the State Government removing the permanent secretary. The Court stated that for the country to move forward and in a democratic and civilized era not military era, days are gone where a civil servant will be removed without due process of the law. In arguing issue 3 formulated, Counsel submitted that the Claimant has successfully proved his case against the Defendants. The Defendants did not fault any Exhibit tendered by the Claimant rather the two letters written by the 1st Defendant were only faulted on ground of certification not that they did not issue the said letters. The Defendants had already joined issues with the Claimant in respect of those letters in their amended statement of defence in paragraph 3 which were facts pleaded in paragraph 5 of the Claimant’s statement of claim. The Defendants added up by saying the claimant was made to enjoy certain benefit without backing it up with any document(s) or anything that shows that the Claimant enjoyed some benefits when he was away for study leave without pay. The Defendants should not be allowed to speak from both sides of the mouth after joining issues with the Claimant that he was actually granted study leave without pay and was reinstated. In the case of AMADI vs. NWOSU (1992) 5 NWLR (Pt. 241) 273, any evidence which was not challenged was deemed as having been proved. It is trite law that where parties have joined issues as to a fact pleaded, it is deemed to be undisputed. The answer to issue No. 3 formulated above is in the negative in the sense that a period of study leave without pay is never included in the computation of years of pensionable service of a civil servant like the Claimant. “Study leave without pay” is not the same thing as “leave of absence” and is not also the same thing with “leave” simpliciter. According to the Claimant’s Counsel, the Defendants tried in vain to deceive the court by their misrepresentation of above stated terms. There is a world of difference amongst the three terms. In the case of study leave without pay, there is no remuneration, no promotion and no seniority but there is the chance of being reinstated after the study leave. According to the Claimant, the cases cited by the learned defence counsel on this issue are neither here nor there and are not helpful in this case as they relate to different scenario. It is Counsel’s submission that as at 2/2/2013, when the claimant was allegedly or purportedly retired from service by the 1st Defendant, he had neither attained the age of 60 years nor put in 35 years of service in his employment. The claimant is due to retire on 2/2/2017 by then he would have put in 35 years of service in his job, the period of his study leave without pay not included. Concluding, Counsel submitted that the Claimant who is a public servant and employee with statutory flavour has proved his case and the remedy available to him is as per his complaint. He is entitled to reinstatement. In the case of AKINLUSI vs. C.B.N. (2014) 44 N.L.L.R. [Pt. 141] 500 CA, the court held that “where an employee’s service is protected by statute and his employment is wrongfully terminated (as in the instant case of the claimant’s retirement without attaining the mandatory 60 years or 35 years of service) he would be entitled to re-instatement to his office and in addition, damages representing his salaries during the period of his purported removal. The Court went further to state that the rule or statutory provisions governing termination of contract have “constitutional force”… that he cannot be removed except as provided by those statutory provisions. The Defendant’s reliance on the circular issued by the state government in the Claimant’s contention is contrary to the civil service rules and pension Act. The court in PHCN vs. OFFOELO (supra) held that “any lawful action taken by the body with the… must be related to the Act or statute. And any unlawful or illegal action taken by the Authority which goes contrary to the provisions of the Act must be declared null and void to the extent of its inconsistency and in contrariness” Having regards to the exhibits tendered without objection by the Claimant and re-course to the Public Service Rules, Civil Service Rules and Pension Act, Counsel submitted that the Claimant had successfully proved his case, that the four years of study leave without pay granted to him will not be added in computation of his service years. And that the order of re-instatement and payment of his salaries and entitlement by the court is the proper order to make in the circumstance. He urged the Court to so order. Before proceeding to the judgment, it is pertinent to resolve the objections raised in the Claimant’s written address wherein Counsel opposed any weight to be attached to the documents pleaded in Paragraphs 4, 10 and 6 of the defendant’s amended statement of defence. Although Counsel did not indicate the Exhibit numbers of the said documents for ease of reference, yet I have painstakingly gone through the documents in question and I have identified them to be Exhibits DD3, DD4 and DD7 respectively. Leave was granted to counsel during the trial, to raise the said objections in her final address. According to Counsel for the Claimant, Exhibit DD3 is in contradiction with a similar document which had put the Claimant’s date of birth at 25/11/1958 as opposed to 25/11/1956 as indicated as the adjusted age in Exhibit DD3. Another ground of objection to this document is that nobody asked the Claimant any question relating to his age neither did he tender any document warranting the adjustment of his date of birth to 1956. As regards Exhibit DD4, Counsel’s contention is that it was issued long after the Claimant had been reinstated (in 1985), and therefore cannot act retrospectively. The document counsel said is therefore not relevant to these proceedings. As regards Exhibit DD7, Counsel argued that the defence did not make the document available to the Claimant earlier, but was seen for the first time in court, and that the Claimant is not aware of the existence of such circular. According to counsel, the document was made in anticipation of these proceedings, having been made only a week before the downsizing and rightsizing of the audit committee that adjusted the Claimant’s age without consulting him. The defence did not file a reply to the Claimant’s final address, therefore did not respond to the above objections. It is noted that the Claimant’s prayer in the said objections, is that the court should not attach any weight to the said documents. Counsel has not asked the court to expunge the documents or declare them inadmissible. Therefore, only the issue of weight will be addressed. The court has a duty to consider the weight, if any, to be attached to any documentary evidence. See the case of J.E. Elukpo & Sons Ltd. vs. F.R.A (1991) 3 NWLR (Pt. 179) at Pg. 333. Per Adio JCA. The law is that, the fact that a document has been admitted in evidence does not necessarily mean that significant weight or any weight at all, should automatically be attached to it without further proof. This was the Court of Appeal decision in ADEWALE & ANOR. vs. OLAIFA & ORS (2012) LPELR-7861(CA). See also Agballah vs. Chime (2009) 1 NWLR (pt. 1122) 373; Adefarasin v. Dayekh (2007) 11 NWLR (Pt. 1044) Pg. 89... It is clear therefore, that it is at the discretion of the court to determine the weight to be attached to any document before it. Exhibit DD3 is said to be the page of the audit report that has the Claimant’s name and data. It is said to be part of a report, which report is not included or tendered in evidence. Obviously the only reason why the Claimant objects to the court attaching any weight to the document is because of the age discrepancy created in the document. Be that as it may, there is nothing to show the origin of the document and its link to the cause of action in this suit. I seem to agree with counsel that no weight ought to be attached to Exhibit DD3, and I so hold. Exhibit DD4 is an Establishment Circular in the nature of a public document. The admissibility is not in issue but weight to be attached. I do not agree with counsel that the circular is not relevant to these proceedings, as it was issued while the Claimant’s was still in service. The document which speaks for itself is relevant especially for the purpose of determining its effect on the present cause of action. It therefore deserves some weight, albeit little, if necessary. I so hold. The same goes for Exhibit DD7. However, it is interesting to note that inspite of the holding that Exhibits DD4 and DD7 deserve some weight to be attached to them, yet, I have found no need to place any reliance on them in this judgment. I have carefully considered the evidence, the pleadings of the parties, the facts presented by the parties, arguments proffered, authorities and submission of Counsel on both sides. I have identified two issues for determination: 1. Whether the period of study leave without pay should be computed into the service years of the Claimant for the purpose of retirement of the Claimant. 2. Whether the Claimant is entitled to the reliefs sought. By his Complaint, the Claimant seeks the following reliefs: a. A DECLARATION of the honourable court that the period of 30th December 1979 to 13th September 1985 being the period the claimant was absent from duty on account of study leave without pay while in the service or employment of the 1st defendant does not count and should not be included in the computation of years of pensionable service of the claimant in the service of the 1st defendant. Provided that the period during which the claimant served in the National Youth Service (NYSC) is not covered by the declaration or subsequent orders. b. An Order of the honourable court compelling the defendants to deduct the said period of 30th December, 1979 to 13th September, 1985 from the period of service of the claimant in the employment of the 1st defendant (excluding the period of NYSC Service). c. An Order of court restraining the defendants by themselves, or their agents, servants, workmen or privies from making use of the said period of 30th December, 1979 to 13th September, 1985 in the computation of the duration of claimant's employment with the 1st defendant. d. A DECLARATION that the circular or notice issued by the agent of the 1st defendant, dated the day of November, 2012 to the effect that the claimant will retire from the services of 1st defendant on the 2/2/2013 on grounds of length of services is wrongful, null and void and of no effect whatsoever and ought to be set aside. e. An order of the honourable court restraining the defendants by themselves, their servants, workmen, agents and privies from retiring or dispensing with the services of the claimant before the 2/2/2017; the claimant not having completed 35 years of service in the public Service of Imo State or attained the age of 60 years before then. f. An order of court restraining the defendants from withholding the claimant's monthly salary and other benefits accruing to his employment and from ejecting the claimant from where he is resident at the Senior Service Quarters of the Ministry of Agriculture Owerri Imo State which the claimant occupies by virtue of his employment anytime before 2/2/2017. It is the claimant’s case that he was employed into the Imo State Civil Service on 2/2/78. In 1979, he applied for and was granted study leave without pay which ended in 1985. He was re-instated into the service in 1985. He continued serving diligently. By a letter dated 9/11/12, the defendants retired him from service, which period was the claimant’s 35th year in service from the date of his employment. It is the claimant’s contention however that the period of study leave without pay is not and should not be computed into his 35years of service. To the claimant, removing his study leave period, he is due for retirement on 2/2/2017 and not the time he was retired. The defendants do not appear to dispute the facts of the claimant’s employment, the grant of study leave without pay, his return to service and his retirement. From the facts as presented by the parties the only point of disagreement is “when is the claimant ought to properly retire from service, taking into view the period he was on study leave without pay?”. This is what needs to be resolved in this case. Section 31 of Imo State Civil Service Commission Regulation provides that an employee in the Imo State Civil Service retires from service either upon reaching 60 years of age or when he attains 35 years of service whichever is earlier. By this provision, the claimant is to retire from service either when he clocks 60 years of age or when he has served for 35 years. By his pleadings, the Claimant was appointed into the Civil Service on 2/2/78 and was informed of his retirement on 9/11/2012, which retirement was to take effect on 2/2/2013. The period between 2/2/78 and 2/2/2013 is 35 years. By Exhibit CRO8, the claimant was born on 25th November 1958. 25th Nov 1958 to 2/2/2013 is about 55 years. The claimant will attain 60 years on 25th Nov 2018. Therefore, by the provisions of the Imo State Civil Service regulation, the claimant’s earliest retirement period from the date of his employment was to be in February 2013, being when he attained 35 years in service. The above facts in view, the main dispute between the parties is, in calculating the 35years of service, whether the period of study leave should or should not be left out. The claimant’s contention is that the period of study leave should be excluded because he was neither working nor paid salary in the period while the defendants maintain that the period is part of the service years because the claimant remained in service and was not disengaged and his name remained in the nominal roll of the service. When used in relation to condition of employment, “leave” means a period an employee is permitted by the employer to be temporarily out of work, whether with or without pay. The term was defined by the Court of Appeal in LAZARUS IGWE vs. ALVAN IKOKU COLLEGE OF EDUCATION, OWERRI (1994) 8 NWLR (Pt. 363) 465 at 478 to mean- “Temporary absence from employment or duty with intention to return during which remuneration and seniority may or may not be suspended”. The term has the same meaning as “Leave of absence” which term is defined in the Black’s Law Dictionary, 6th Edition as: “Temporary absence from employment or duty with intention to return during which time remuneration and seniority are not normally affected” Clear from this definition is that an employee on leave is nonetheless an employee and his status as an employee is not affected. The same is the position of an employee on “leave without pay” as was held by the Court of Appeal in LAZARUS IGWE vs. ALVAN IKOKU COLLEGE OF EDUCATION, OWERRI (SUPRA) at 482 as follows- “Where an employee is on an approved study leave without pay, granted by his employer, he still remains a staff of the employer in the absence of any evidence that he was dismissed, relieved or had his appointment terminated”. At pages 478 – 479 of the report, the Court of Appeal further explained the status of an employee on study leave without pay thus: “As indicated earlier, since it is common ground that the appellant was an employee of the respondent and was on an approved study leave without pay, it goes without saying unless there is evidence to the contrary, that he is still the staff of the respondent”. The facts before this court has shown that it was the claimant who applied for study leave without pay. His application, certainly, was not for his resignation from service and when the 4th defendant granted the application vide Exhibit CRO3 and CRO4, the claimant’s employment was not at all terminated. In fact, Exhibit CRO3 reads in its paragraph 2 thus- “This approval is given on the clear understanding that you will not be entitled to automatic promotion on return to duty. On the other hand, you will have to return to your substantive post and your further advancement will depend on vacancies when you will be considered along with others”. The significance of the above statement in Exhibit CRO3 is that the claimant’s employment was preserved when he proceeded on study leave. In my view, he never ceased to be an employee in the service of the defendants during the period he was on study leave. The issue for resolution in this case is whether or not the four year period granted for study leave without pay to the claimant should be computed in arriving at the total period of service by him. If it is added then he would have to retire pursuant to the extant regulations of the Imo State Civil Service Commission Regulation of 1994 which provides that a civil servant shall retire compulsorily on attainment of sixty years of age or thirty five years of service whichever is earlier. If it is not however, he would have to retire at a later date. Having carefully considered the provisions of the laws and the facts of the case, it is my humble view that the primary point is the upholding of the provisions of the law. In the circumstances of the case of the Claimant, when he was embarking on the study leave without pay, he certainly was not resigning from, or in any way being terminated from his employment with the defendants. The decision in Lazarus Igwe’s case, supra, clearly establishes that an employee on study leave without pay does not cease to be an employee as such. He would have lost remuneration and other perquisites of office, but it was what he bargained for by accepting to proceed on such a leave. Since the employment has not been broken, it is difficult to see how the years spent in that period should not be counted. Furthermore, I do not see the argument that the non-service by the claimant during the period of absence for study leave without pay and the fact of re-instatement thereafter as having any significant impact on the continuity of the employment. The claimant’s letter of approval, Exhibit CRO3, is quite clear on his status upon returning from the study leave without pay. It states in part that: 2. This approval is given on the clear understanding that you will not be entitled to automatic promotion on return to duty. On the other hand, you will have to return to your substantive post and your further advancement will depend on vacancies when you will be considered along with others. Therefore, there is nothing to suggest that the employment was being terminated to necessitate re-instatement. The Black’s Law Dictionary, Eighth Edition, at page 910 defines “leave of absence” as “a worker’s temporary absence from employment or duty with the intention to return. Salary and seniority are typically unaffected by leave of absence.” The absence therefore is one which the claimant took on a temporary basis for which he was going to come back. Having now been made clear that the claimant was at all times, while on study leave without pay, in the service of the 1st defendant, can it reasonably be said that the period of study leave be excluded in calculating his 35years in service? I think not. In computing the claimant’s period of service for purposes of his retirement date, the period of leave of absence or study leave without pay is inclusive. My view is further strengthened by the dictum of Edozie JCA in the case of LAZARUS IGWE vs. ALVAN IKOKU COLLEGE OF EDUCATION (1995) 1 NWLR (Pt. 88) @ 478, where it was aptly captured thus: “Since the law is settled that employee on approved study leave without pay is still in the employment of the employer during the period of leave, the inevitable conclusion is that in computing the employee’s period of service for purposes of his retirement date, the period of leave of absence or study leave without pay will be included or added. To submit otherwise will be preposterous. It is further submitted that this State of the Law cannot be amended or altered by an administrative directive, regulation or command.” In the circumstance and for all the reasons given, I hereby find and hold that the approved period of study leave without pay of the claimant should be included in the computation of his retirement date, as his employment was continuous throughout that period. In that case, his retirement date should properly be in February 2013 when he attained 35 years in service. On the second issue, which is whether the claimant is entitled to his relief, with the finding and holding that the claimant’s period of study leave without pay is to be included in the calculation of his period of years of service with the 1st Defendant, the claims of the claimant fail and he is not entitled to any of the reliefs. The suit is accordingly hereby dismissed. I make no order as to costs. Judgment is entered accordingly. Hon. Justice O. Y. Anuwe Judge