IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR, bpa PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: 12 MARCH 2026                                                        

SUIT NO. NICN/ABJ/365/2025

BETWEEN

Hakeem Olayiwola Sarki                             -                                                              Claimant

AND

1.  Nigerian Air Force

2.  The Chief of Air Staff                                 -                                                           Defendants

REPRESENTATION

Mrs Hanatu Bahago, with Ibrahim Dahiru, for the claimant. No legal representation for the defendants.

JUDGMENT

INTRODUCTION

1. To the claimant, given sections 217(1), 218(4)(b) and 306(1) and (2) of the 1999 Constitution, and paragraph 03.10(a) of the Harmonised Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised), he has the right to voluntarily retire from the Nigerian Air Force. And so, the defendants’ refusal to approve his voluntary retirement vide his resignation letter submitted on 13 November 2025 is null and void.

2.    The claimant accordingly filed this suit on 2 December 2025 vide an originating summons praying this Court to answer the three questions he posed in his favour. The questions are:

(1)  Following the construction of the provision of paragraph 03.10(a) of the Harmonised Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised), is the Claimant due and ought to be allowed to voluntarily retire from the service of the 1st Defendant?

(2)  Following the construction of the provision of paragraph 03.10(a) of the Harmonised Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised) and Sections 217(1), 218(4)(b) and 306(1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended), can the Defendants validly refuse the Claimant’s application to voluntarily retire from the service of the 1st Defendant?

(3)    Whether the provision of Paragraph 03.12 of the new Harmonised Terms and Conditions of Service (HTACOS) 2024 which purports to prohibit, restrict, suspend or defer an officer’s right to voluntarily resign or retire is constitutional in view of Section 306 of the 1999 Constitution (as amended), which provides that a resignation takes effect immediately upon receipt of the letter of resignation by the appropriate authority?

3.   If question (1) is answered in the affirmative and question (2) in the negative — the claimant said nothing of question (3) — then he wants the Court to grant him the following declarations and orders:

(1)   A DECLARATION that following the construction of the provision of paragraph 03.10(a) of the Harmonised Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised), the Claimant is due and ought to be allowed to voluntarily retire from the service of the 1st Defendant.

(2)   A DECLARATION that following the construction of the provisions of paragraph 03.10(a) of the Harmonised Terms and conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised) and Sections 217(1), 218(4)(b) and 306(1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended), the Defendants cannot validly refuse the Claimant’s voluntarily resignation from the service of the 1st Defendant.

(3)  A DECLARATION that paragraph 03.12 of the Harmonised Terms and Conditions of Service (HTACOS) 2024, in so far as it seeks to prohibit, restrict, suspend, or defer the resignation of voluntary retirement of a public officer in the service of the Defendants, is unconstitutional, null, void, and of no effect whatsoever, being in direct conflict with the mandatory and explicit provision of Section 306(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

(4)  A DECLARATION that the Claimant’s resignation letter from the service of the 1st Defendant, submitted to the 1st Defendant on the November 13, 2025 and effective on the same the day is valid and subsisting.

(5)  A DECLARATION that the Claimant’s voluntary resignation from the service of the 1st Defendant was complete and became operational from the moment the resignation letter was submitted to the 1st Defendant, and the Claimant ceased to be an employee of the 1st Defendant on November 13, 2025.

(6)   AN ORDER declaring the Defendants’ refusal to approve the Claimant’s voluntary resignation from the service of the 1st Defendant as null, void and of no effect.

(7)  AN ORDER deeming the Claimant’s voluntary resignation from the service of the 1st Defendant as approved and the Claimant as voluntarily retired from the service of the 1st Defendant, from the 13th day of November, 2025, with full entitlements in accordance to the extant pension legislation.

(8)   AN ORDER compelling and or mandating the Defendants to process and pay the Claimant, all his voluntary retirement benefits, including allowances, gratuity, pension, retaining his substantive rank, retaining his ceremonial dress and mess kit, certificate of military service, retired officers identification card and any other benefits due to the Claimant at the time of his resignation or due to him by virtue of his resignation.

(9)  AN ORDER of perpetual injunction restraining the Defendants, their agents, proxies, assigns or anybody acting under or through them, howsoever described and in whatever capacity, from arresting, harassing, detaining or otherwise infringing on the Claimant’s rights, over his voluntary resignation from the service of the 1st Defendant.

4.   In support of the originating summons is an affidavit with Exhibits HS 1A, HS 1B, HS 2A, HS 2B, HS 3, HS 4A, HS 4B, HS 4C, HS 5, HS 6, HS 7, HS 8, HS 9 and HS 10, and a written

address.

4.  There was no legal representation for the defendants. This means that the case is undefended; and is accordingly treated as such, and this judgment is so based.

THE SUBMISSIONS OF THE CLAIMANT

5.   The claimant adopted the three questions he posed as the issues for determination. The only difference is that section 218(4)(b) of the 1999 Constitution, which is one of the sections cited in question (2), is omitted in issue (2) submitted for determination. But when the claimant actually addressed issue (2), the said section 218(4)(b) resurfaced.

6.    On issue (1), the claimant submitted that the clamant is due and ought to be allowed to voluntarily retire from the service of the 1st defendant having met all the requirements in line with the HTACOS as well as under the 1999 Constitution That he must commence his submissions from the point whether it is proper to have resorted to the originating summons procedure in commencing the present proceedings.

7.     To the claimant, the National Industrial Court Civil Procedure Rules made sufficient provisions for the commencement of suits by the originating summons procedure. But there are circumstances under which that procedure may be resorted to, citing Government of Imo State v. EFCC [2018] 9 NWLR (Pt. 1625) 443 at 460 - 461. That if there are serious disputes as to facts, then a normal writ must be taken out, not originating summons, citing Doherty v. Doherty [1968] NWLR 241; [1967] SCNLR 408, Asogwa v. PDP [2013 7 NWLR (Pt. 1353) 207 at 288.

8.  To answer the questions submitted for adjudication, that a simple poser would suffice thus: in the circumstance of this case, did the defendants rightly apply the provisions of paragraphs 03.10(a) of the HTACOS, 2017 revised? The claimant then submitted that this poser must be answered in the negative, urging the Court to so hold. Paragraph 03.10(a) of the HTACOS provides thus: “Officers with a Regular combatant commission shall be eligible to apply to retire if they have served for at least 15 years of commissioned service”. That in this instant case, the claimant has served for well over Eighteen (18) years with no encumbrances whatsoever.

9.  That the law is settled that documents are the hangers of evidence, citing Kusha v. Modu & ors [2022] LPELR-57320(CA). Thus, oral evidence that is supported by documentary evidence will be deemed more credible, citing Zakirai v. Muhammad [2017] LPELR-42349(SC) 73 and Aiki v. Idowu [2006] 9 NWLR (Pt. 984) 47.

10.   The claimant then submitted that it is not in issue that he is eligible to apply for voluntary retirement based on the length of service, referring to Exhibits HS 1A and 1B, the letters dated 29 September 2001 and 23 September 2006 respectively. That the contents of the documents also speak for themselves, referring to Kusha v. Modu & ors (supra). To the claimant, by way of

deductive reasoning, it is equally for this reason that the defendants did not cite the length of service as one of the reasons for refusing the application of the claimant. That from the affidavit evidence, the position of the defendants and the clear provisions of the HTACOS, it is clear that the claimant is eligible to retire voluntarily and have no impediments or encumbrances which would impede his application for voluntary retirement, urging the Court to so hold.

11.  Furthermore, that the HTACOS is in the mold of a contract which binds the parties to this suit and the parties cannot extricate themselves from the terms and conditions stated therein when they are called into question. In the same vein, the Court before whom issues emanating from such terms and conditions have been submitted for adjudication, cannot conveniently derogate from the terms and conditions stated therein. That in deciding the issues raised, parties and the Court are bound by the provisions of the HTACOS, 2017 (revised), referring to Ovivie & ors v. Delta Steel Co. Ltd [2023] LPELR-60460(CA) and Udoh v. Civil Service Commission, Akwa Ibom State & ors [2013] LEPR-21849(CA).

12.     The claimant then referred to Mohammed v. Nigerian Army Council & anor [2021] LEPR-53390(CA), where the Court of Appeal held that the trial Court admirably set out and considered section 35 of the Armed Forces Act, which provides for the disengagement of enlisted persons, as it provides: “Any enlisted person may be discharged at any time by a competent service authority during his engagement.” That this provision clearly shows that the appellant’s employment was not fixed in nature in the service of the 1st respondent, in contrast to the position of a public servant, citing Controller General of Customs v. Gusau [2017] 18 NWLR (Pt. 1598) 385 and Bauchi State Judicial Service Commission v. Danjuma [2017] NWLR (Pt. 1565) 432.

13.   To the claimant, section 35 of the Armed Forces Act makes the nature and character of the appellant’s employment abundantly clear: an enlisted person may be discharged at any time by a competent service authority. That in an employer/employee dispute, it is the applicable conditions of service or any other terms stipulated in the contract that must be referred to, construed and applied in the resolution of the dispute between the parties. Accordingly, the conditions of service is the bedrock of the contract of employment. It, therefore, means that where there are documents or series of documents which stipulate the terms and conditions of any employment contract, no court should look outside those terms and conditions as stipulated in the document in deciding the rights and obligations of the parties to the agreement, citing Jowan & 77 ors v. Delta Steel Co. Ltd [2013] 1 ACELR 18 and Mr S. Anaja v. UBA Plc [2014] ACELR 78.

14.     The claimant went on that paragraph 03.10(a) of the HTACOS is plain, clear and unambiguous. That the law is trite that when the provision of a statute is clear and unambiguous, it has to be given its plain and ordinary meaning, referring to APC v. Karfi [2018] 6 NWLR (Pt. 1616) 479 at 508.

15.   On the whole, that in view of the relevant provisions of the HTACOS and the Constitution, the claimant is due and ought to be allowed to retire from the defendant’s service, urging the Court to resolve the question raised in favour of the claimant and grant the reliefs sought.

16.   Regarding issue (2), the claimant submitted that from the peculiar facts of this case and the clear provisions of paragraph 03.10(a) of the Harmonised Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised) and sections 217(1), 306 (1) of the 1999 Constitution, the claimant’s employment with the 1st defendant came to an end upon the submission of his resignation letter to the defendants.

17.   That the thin issue in this case devolves on an interpretation of sections 217(1) and 306(1) and (2) of the 1999 Constitution and the claimant’s resignation letter submitted to the defendants on November 13, 2025. That from time immemorial, a relationship between an employer and an employee has been one founded on contract and the courts have frequently held that you cannot force a willing employee on an unwilling employer, same way you cannot force a willing employer on an unwillingly employee, citing Okoh v. Fed Poly Bauchi & anor [2024] LPELR-62580(CA); and Skye Bank Place v. Adegun [2024] LPELR–62219(SC), which held that like every contractual relationship, any of the parties can decide to bring an employment relationship to an end at anytime.

18.   Furthermore, that it is settled law that resignation is one of the means by which a contract of employment may be brought to an end; citing Zubairu & anor v. Mohammed & ors [2009] LPELR-5124(CA), which held that resignation dates back from the date the notice is received, and there is absolute power to resign and no discretion to refuse to accept the notice of resignation.

19.   The claimant then asked what the undisputed facts of this case are. His answer was the he was employed by the 1st defendant on 29 September 2001, as a Pilot Officer. He was subsequently promoted to Flying Officer, Flight Lieutenant, Squadron Leader, Wing Commander and later Group Captain, his rank at the time of his resignation. However, that after well over eighteen (18) years of service to the 1st defendant and at the expense of his young family, particularly his special need child, he submitted his resignation letter. But rather than accept his resignation letter, the defendants rejected same. That this position is not only contrary to the established principle of the right of any party to a contract to terminate the contract at any time, but is also at variance with section 306(1) and (2) of the 1999 Constitution. It is on this premise that the claimant is urging this Court to hold that he ceased to be an employee of the 1st defendant from 13 November 2025 when he submitted his resignation letter to the 1st defendant.

20.   In the instant case, that the operating provisions of the Constitution are section 217(1) and section 306(1) and (2) thereof. Section 217(1) of the Constitution establishes the 1st defendant, and states thus:

(1)   There shall be an armed forces for the Federation which shall consist of an Army, a Navy, an Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly (emphasis is the claimant’s).

21.  That while section 217(1) of the Constitution establishes the 1st defendant, section 218(4)(a) and (b) donates to the National Assembly the powers to make laws in relation to the members of the armed forces thus:

(4) The National Assembly shall have power to make laws for the regulations of –

(a)   The powers exercisable by the President as Commander–in-chief of the Armed forces of the Federation; and

(b)    The appointment, promotion and disciplinary control of members of the armed forces of the Federation.

22.  To the claimant, any law made by the National Assembly in furtherance of section 218(4)(b) above must be consistent with the Constitution. From the foregoing, that there is no denying the fact that the 1st defendant is a creation of the Constitution and all laws, delegated legislation, rules or regulations, howsoever, described, purporting to be relied upon by the defendants in the control, appointment or discipline of members of the Nigeria Air Force, including the claimant, shall be subject to the Constitution and where such laws conflict with the Constitution, such laws, to the extent of its inconsistency shall be void.

23.   On the validity of the claimant’s resignation, the claimant submitted that section 306(1) and

(2) of the Constitution is the source of the prevailing principles on resignation, urging the Court to so hold. That it is settled law that every person employed or appointed into an employment of contract of service, whether common law or statutory employment, has a right to resign from such an employment, urging the Court to so hold. Section 306(1) and (2) of the Constitution states thus:

(1)   Save as otherwise provided in this section, any person who is appointed, elected or otherwise selected to any office established by this Constitution, may resign from that office by writing under his hand addressed to the authority or person by whom he was appointed, elected or selected.

(2)   The resignation of any person from any office established by this Constitution shall take effect when the writing signifying the resignation is received by the authority or person whom it is addressed or by any person authorised by that authority or person to receive it.

24.    That a holistic understanding of sections 217(1), 218(4)(b) and 306(1) and (2) of the Constitution will demonstrate that the claimant falls within those persons whose resignation takes immediate effect under section 306(1) and (2) of the Constitution. In particular, that even where the defendants claim to have passed any regulations purporting to regulate the claimant’s employment as a member of the armed forced created under section 217 of the Constitution, such regulations shall nonetheless, be in compliance with the provisions of the Constitution, otherwise, it shall be null and void.

25.   Flowing from the foregoing, that the question that should agitate the mind of this Court is: can the defendants validly purport to reject the claimant's resignation letter? The claimant answered in the negative. Indeed, that it is trite law that the tendering of a letter of resignation by an employee automatically ends the employment on the effective date as indicated on the resignation letter. In fact, that whether or not the employer accepts the resignation, once the letter is received, the resignation becomes valid and effective, citing WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 248 at 272, Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1 at 28; and Abekhe v. Alpha Merchant Plc [2017] All FWLR (Pt. 914) 917 at 1002, which held that in law, resignation takes effect even when the employer did not expressly accept it since there is no need for the employer to reply the letter of resignation before it becomes effective.

26.   To the claimant, the above shows clearly that he has unconstraint right to resign from the employment of the 1st defendant and no special notice or approval is needed for the exercise of a person’s constitutional right, urging the Court to so hold. That he tendered before this Court his resignation notifying the defendants of his decision to leave the service after well over eighteen

(18) years of meritorious service on November 13, 2025. That his letter of resignation took effect on same day, urging the Court to so hold.

27.   Furthermore, that section 306(1) and (2) of the Constitution is clear and unambiguous. That the law is trite that when the provision of a statute is clear and unambiguous, it has to be given its plain and ordinary meaning, referring to APC v. Karfi [2018] 6 NWLR (Pt. 1616) 479 at 508. That in Elkanah John Garang v. The Chief of Air Staff & anor (unreported Suit No: NICN/ABJ/ 117/2023 delivered on February 29, 2024), the National Industrial Court was faced with a similar situation where the claimant’s resignation from the services of the 1st defendant was rejected on account of inadequate notice. That in rejecting the defendant’s argument and upholding the claimant’s argument that his resignation took effect from the date it was submitted, the learned trial Court held that the claimant had the right to resign at any time and deemed his application for voluntarily retirement as valid and subsisting.

28.  The claimant commended Elkanah John Garang to the Court and urged the Court to reply on same as the case is on all fours with the instant case, although the decision is of a court of coordinate jurisdiction, which is a percussive authority. On the need for a court to follow decisions of courts of coordinate jurisdiction, the claimant referred to Umahi & anor v. PDP & ors [2022] LPELR-58994(CA). Also, that in Akerele Adedoyin Jeremiah v. The Chief of Air Staff & anor (unreported Suit No. NICN/ABJ/25/2025 delivered on September 2, 2025), the National Industrial Court was faced with a similar situation as this instant case and the court held that the employer’s rejection of a resignation by an employee is unconstitutional and a breach of the employee’s fundamental rights under the 1999 Constitution; and that once a letter of resignation is properly communicated, same cannot be nullified by an employer’s refusal to accept it. The claimant then urged the Court to so hold and apply same in this instant case.

29.   The claimant continued that in arguing for the validity of his resignation letter, he is not unmindful that the defendants form a branch of the Nigerian Armed Forces with certain peculiarities due to the nature of their job in keeping the country safe. However, that we are in a democracy and in every democracy, particularly the one being practiced in Nigeria, every entity, including the military is subject to the Constitution. Accordingly, the military cannot purport to make laws that will conflict with the Constitution or keep people in servitude simply because they opted to be members of the Armed Forces, citing Kawuwa & anor v. PDP & ors [2016] LPELR–40344(CA).

30.  That the law is trite that an employee’s resignation letter becomes effective from the date the letter is received by the employer, citing FBN Merchant Bank Ltd v. Owotemu [2023] LPELR-60451(CA). In fact, that the resignation need not be formally accepted before it takes effect, urging the Court to hold that the letter of resignation of the claimant is valid and subsisting and any further action by the defendants against the claimant is null and void.

31.   To the claimant, the 1999 Constitution has given powers to this Court to adopt international best practice in labour law related issues. He then urged the Court to adopt and apply the provisions of the ILO Convention concerning Forced or Compulsory Labour, 1930 (No. 29), a Convention ratified by Nigeria on October 17, 1960. That the rule is that an employee has an absolute/unfettered right to disengage from work and there is no discretion on the part of the employer to refuse to accept the notice to resign.

32.   On the whole, it is the claimant’s submission that he has the right to resign from the service of the defendant and any attempt to stop an employee like him from disengaging by an employer like the defendant would be interpreted as forced and compulsory labour which this Court ought to frown at.

33.    For issue (3), the claimant submitted that paragraph 03.12 of the Harmonised Terms and Conditions of Service (HTACOS) 2024, in so far as it seeks to prohibit, restrict, suspend, or defer the resignation or voluntary retirement of a public officer in the service of the defendants, is unconstitutional, null, void, and of no effect whatsoever, being in direct conflict with and subordinate to the mandatory and explicit provision of section 306(2) of the 1999 Constitution, which provides that a resignation or retirement shall take effect from the date of the receipt of the letter of resignation or retirement by the appropriate authority.

34.     That the principle of constitutional supremacy is not merely trite but constitutes the foundational bedrock of Nigeria’s legal and democratic order. That this cardinal doctrine is emphatically entrenched in section 1(1) and (3) of the 1999 Constitution, an unequivocal provision that establishes a clear and immutable hierarchy of norms of which the Constitution occupies the apex position, and all other laws, whether Acts of the National Assembly, Laws of State Houses of Assembly, or subsidiary legislation like the Harmonised Terms and Conditions of Service (HTACOS) 2024, derive their validity and force solely from their conformity with the Constitution.

35.   It is the claimant’s submission that the HTACOS 2024 is incontrovertibly a subsidiary or delegated legislation and its legal force is, therefore, derivative, conditional, and subordinate to the provisions of the Constitution. That it cannot arrogate to itself a power or create a condition that the Constitution itself does not sanction or that directly contravenes an express constitutional command, urging the Court to so hold; and citing Ahmed v. Regd. Trustees AKRCC [2019] 5 NWLR (Pt. 1665) 316.

36.   That section 306 of the 1999 Constitution is a clear and has a self-executing mechanism for the resignation of public officers. That the provision is mandatory and specific. It creates an immediate, unilateral right in the officer, the exercise of which is complete upon receipt by the employer. There is no constitutional room for a procedural veto, a cooling-off period, or an administrative override, urging the Court to so hold.

37.    The claimant went on that paragraph 03-12 of the HTACOS 2024, which purports to “prohibit, restrict, suspend or defer” this right, seeks to interpose a layer of administrative discretion where the Constitution permits none. It creates a condition precedent (administrative approval) to a right that the Constitution declares effective ipso facto upon receipt. This is not a minor regulatory detail but a fundamental alteration of a constitutional right, rendering the paragraph prima facie inconsistent with the supreme law.

38.    That it is important to state at this junction that at the time, the claimant proceeded on secondment, the extant HTACOS 2017 did not contain any provision imposing a restriction or debarment on voluntary retirement for returning officers, and the claimant did not sign any bond, undertaking or agreement to be bound by such a condition. Therefore, the claimant cannot lawfully be subjected to, or adversely affected by, a new restriction introduced after his secondment, particularly one he was never informed of nor consented to.

39.    That the provisions of the HTACOS, 2017 (Revised), was the law that governed the claimant’s career at the time he proceeded on secondment and he had a legitimate expectation that his right to voluntary retirement after fifteen (15) years of commissioned service would remain intact and would not be altered to his detriment without due notice, or lawful justification. Also, the provisions of the HTACOS 2024 cannot be applied retrospectively to impose new burdens, penalties, or disadvantages on an officer in respect of acts or circumstances that occurred long before such regulations came into force.

40.  Additionally, that the right to resign is a fundamental aspect of personal liberty and freedom of contract. As such, a provision that purports to ‘prohibit’ or “defer” this right is a severe restraint that finds no basis in the supreme law. That the Apex Court of Nigeria has reinforced this principle in cases like NDIC v. Okem Enterprises Ltd & anor [2004] LPELR-1999(SC), emphasizing that where the Constitution has specified a manner for doing an act, that procedure must be strictly followed to the exclusion of all others.

41.    Given sections 1(3) and 306(2) of the Constitution, and the settled jurisprudence of the Supreme Court, the claimant submitted that paragraph 03.12 of the HTACOS 2024 is invalid, null, void, and of no legal effect to the extent of its inconsistency with section 306(2) of the 1999 Constitution. That an administrative guideline cannot suspend the operation of the supreme law of the land. To hold otherwise would be to sanction a flagrant subversion of the constitutional order.

42.  That in the final analysis, and upon a proper construction of section 1(3) of the Constitution, the clear and mandatory terms of section 306, and the plethora of decisions of the Supreme Court on the supremacy of the Constitution and the nature of resignation as a unilateral act, paragraph

03.12 of the HTACOS 2024 is unconstitutional, invalid, null and void to the extent of its inconsistency with section 306(2) of the 1999 Constitution. That an administrative or subsidiary instrument cannot override, suspend, amend, or derogate from the express provisions of the Constitution. Any attempt to do so constitutes a direct affront to constitutional supremacy and cannot be allowed to stand.

43.  In view of the foregoing, the claimant concluded by submitting thus:

(a)   In the circumstance of this case, the defendants did not rightly apply the provisions paragraph 03.10(a) of paragraph of the HTACOS, 2017 (revised) in refusing to accept the claimant’s resignation letter.

(b)   Following the construction of the provision of paragraph 03.10(a) of the Harmonised Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised), the claimant is due and ought to be allowed to voluntarily retire from the service of the 1st defendant.

(c)   Following the construction of the paragraph 03.10(a) of the Harmonised Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised) and sections 217(1), 218(4)(b) and 306 (1) and (2) of the 1999 Constitution, the defendants cannot validly refuse the claimant’s application to voluntarily retire from the service of the 1st defendant.

(d)   Paragraph 03.12 of the HTACOS 2024 is unconstitutional, invalid, null and void to the extent of its inconsistency with section 306(2) of the 1999 Constitution.

44.   On the whole, the claimant urged the Court to resolve the issues raised in his favour and grant all the reliefs sought.

45.   I indicated earlier that the defendants did not have any legal representation, nor did they file any defence process.

COURT’S DECISION

46.    I took time to consider the processes and submissions of the claimant. That this suit is undefended does not imply that thereby the claimant is entitled to a favorable verdict. The onus is still on the claimant to prove his case to the satisfaction of this Court, given the minimal evidence rule, which is that a claimant cannot assume that he is entitled to automatic judgment

just because the other party did not adduce evidence before the trial court. See Attorney General Osun State v. NLC & ors [2013] 34 NLLR (Pt. 99) 278 NIC, Mr Lawrence Azenabor v. Bayero University, Kano [2011] 25 NLLR (Pt. 70) 45 CA at 69, Ogunyade v. Oshunkeye [2007] 4 NWLR (Pt. 1057) 218 SC at 247, The Shell Petroleum Development Company of Nigeria Limited v. The Minister of Petroleum Resources & 2 ors unreported Suit No. NICN/LA/ 178/2022, the judgment of which was delivered on 28 July 2022 and Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/364/2024, the judgment of which was delivered on 4 March 2025.

47.   By the affidavit evidence of the claimant, the claimant joined the service of the defendants effective from 29 September 2001 and rose to the Rank of Group Captain. He served the defendants in various stations and capacities including a secondment as Military Logistics Officer (Aviation) with the United Nations. For family and medical reasons, after putting in over 18 years of service, the claimant vide a letter of 10 October 2024 (Exhibit HS 4A) applied for voluntary retirement. By a letter of 30 November 2024 (Exhibit HS 5), the defendants declined on the ground that the claimant is yet to complete his tour of duty with the United Nations. He was told in this letter that he can only apply for voluntary retirement at the completion of his tour of duty.

48.   The claimant completed his tour of duty and returned to Nigeria on 3 August 2025; after which he again applied for voluntary retirement vide a letter of 13 November 2025 (Exhibit HS 6). To the claimant, the defendants failed and refused to approve his application. It is for this refusal that the claimant filed this action arguing that he has the right to voluntarily retire from the service of the defendants, relying on constitutional and case law authorities.

49.     The issues presented by the claimant for the determination of this Court bear close relationship with similar cases that have been decided by this Court. See, for instance, Elkanah John Garang v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/117/2023, the judgment of which was delivered on 29 February 2024, Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/364/2024, the judgment of which was delivered on 4 March 2025, Dr Michael Ikuesan v. The Chief of Naval Staff & anor unreported Suit No. NICN/ABJ/18/2025, the judgment of which was delivered on 8 May 2025, Smart A. Amough v. The Nigerian Air Force & anor unreported Suit No. NICN/ABJ/453/2024, the judgment of which was delivered on 30 September 2025 and Dr Abubakar Gidado Halilu v. The Chief of Naval Staff & anor unreported Suit No. NICN/ABJ/112/2025, the judgment of which was delivered on 13 November 2025.

50.   Questions (1) and (2) posed by the claimant referred to paragraph 03.10(a) of the Armed Forces of Nigeria Harmonised Terms and Conditions of Service (HTACOS) Officers 2017 (Revised). The copy attached to the claimant’s affidavit in support is marked as Exhibit HS 7. It is one where at page 11, which has the said paragraph 03.10, the words at the edge of the page are cut off. As such, it is not exactly the provision of paragraph 03.10(a) that the claimant relies

on. All I could pick from the provision is that an officer shall be eligible to apply to retire if he served for at least 15 years of commissioned service.

51.   In question (3) posed by the claimant, the claimant referred to paragraph 03.12 of the new Armed Forces of Nigeria Harmonised Terms and Conditions of Service (HTACOS) Soldiers/ Ratings/Airmen 2024. The copy attached to the claimant’s affidavit in support is marked as Exhibit HS 8. This copy has no paragraph 03.12. Chapter 3, dealing with “Discipline”, will be seen at page 13 and has only paragraphs 03.01 and “03.02 - 03.04”. Paragraph “03.02 - 03.04” is indicated as “Reserved”. No explanation was made to the Court what this means. There is nothing else indicated for Chapter 3 where paragraph 03.12 relied on by the claimant should be found. Page 14 deals with Chapter 14, a chapter providing for “Promotions/Advancements”. The long and short of it is that I did not find paragraph 03.12 in Exhibit HS 8. So I do not know how the claimant expects this Court to determine question (3), which is hinged on paragraph 03.12 of Exhibit HS 8.

52.   In Barrister Bala James Nggilari v. Adamawa State Government & ors unreported Suit No. NICN/ABJ/356/2015, the judgment of which was delivered on 4 March 2020, the claimant cited and relied on sections 3 and 6 of the Adamawa State Governor's Pension (Amendment) Law 2010 but did not make a copy available to the Court in order to see how the said sections 3 and 6 were actually worded. Meanwhile, the claimant’s case was that the 1st defendant was in breach of the provisions of sections 3 and 6 of the Adamawa State Governor’s Pension (Amendment) Law 2010 by its failure to pay him pension and gratuity for life as provided for by the Law. Though this Court acknowledged that the Evidence Act 2011 enjoins the Court to take judicial notice of laws, it pointed out that where access to the said law is made impossible or difficult, the reality is that there would just be no law to take judicial notice of. And because the Court could not thus ascertain the basis of the claims of the claimant, the said claims could not be granted by the Court.

53.    What this implies then is that question (3) cannot be considered. And if it cannot be considered, it means that relief (3), which seeks a declaration that paragraph 03.12 of HTACOS 2024, in so far as it seeks to prohibit, restrict, suspend, or defer the resignation or voluntary retirement of a public officer in the service of the Defendants, is unconstitutional, null, void, and of no effect whatsoever, cannot be granted. I so hold.

54.   This leaves out only questions (1) and (2). Given these two questions, this Court is asked to decide if “the Claimant due and ought to be allowed to voluntarily retire from the service of the 1st Defendant” and whether the defendants can “validly refuse the Claimant’s application to voluntarily retire from the service of the 1st Defendant”. The claimant answered question (1) in the affirmative, and question (2) in the negative. Both issues are related; and so I will take them together as they are both hinged on paragraph 03.10(a) of the HTACOS 2017 (Revised) and sections 217(1), 218(4)(b) and 306(1) and (2) of the 1999 Constitution.

55.    I already indicated what paragraph 03.10(a) of the HTACOS 2017 (Revised) is about. Sections 217(1), 218(4)(b) and 306(1) and (2) of the 1999 Constitution provides thus:

Section 217(1):

There shall be an armed forces for the Federation which shall consist of an Army, a Navy, and Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.

Section 218(4)(b):

The National Assembly shall have power to make laws for the regulation of —

(b) the appointment, promotion and disciplinary control of members of the armed forces of the Federation.

Section 306(1) and (2):

(1)   Save as otherwise provided in this section, any person who is appointed, elected or otherwise selected to any office established by this Constitution may resign from that office by writing under his hand addressed to the authority or person by whom he was appointed, elected or selected.

(2)   The resignation of any person from any office established by this Constitution shall take effect when the writing signifying the resignation is received by the authority or person to whom it is addressed or by any person authorised by that authority or person to receive it.

56.   In cases like Elkanah John Garang v. The Chief of Air Staff & anor, Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor, Dr Michael Ikuesan v. The Chief of Naval Staff & anor, Smart A. Amough v. The Nigerian Air Force & anor and Dr Abubakar Gidado Halilu v. The Chief of Naval Staff & anor, which had issues similar to the instant case, this Court held the claimants to have occupied offices established by the 1999 Constitution and so section 306 of the Constitution was applicable to them. The same is accordingly true of the claimant in the instant case.

57.   So, given section 306(1) of the 1999 Constitution, the claimant has the right to resign (a fortiori retire) from the service of the 1st defendant. The defendants cannot stop him from so resigning or retiring. This means that question (1) can be answered in the affirmative and so in favour of the claimant. And I so do.

58.  The issue, however, which all through his submissions the claimant missed and did not allude to, is the exact application of section 306(2) of the 1999 Constitution to his case. To the claimant, his employment with the 1st defendant came to an end upon the submission of his resignation letter to the defendants. That he ceased to be an employee of the 1st defendant from 13 November 2025 when he submitted his resignation letter to the 1st defendant. But is submission alone of his letter of resignation sufficient to bring to the fore the application of section 306(2) of the 1999 Constitution? This remains the key question, which the claimant did not allude his mind to.

59.  At the risk of repetition, section 306(2) of the 1999 Constitution is specific in stating that: The resignation of any person from any office established by this Constitution shall take effect when the writing signifying the resignation is received by the authority or person to whom it is addressed or by any person authorised by that authority or person to receive it (emphasis is this Court’s).

60.   Receipt of the letter of resignation is the key requirement here for the letter of resignation to take effect. Accordingly, there has to be proof before the Court as to the date the letter of voluntarily resignation was received by the defendants in order to bring into application section 306(2) of the 1999 Constitution.

61.   The claimant had cited and relied on this Court’s decision in Elkanah John Garang v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/117/2023, the judgment of which was delivered by Anuwe J on 29 February 2024. In relying on this case, the claimant submitted that the NICN held that in rejecting the defendant’s argument and upholding the claimant’s argument that his resignation took effect from the date it was submitted, the learned trial Court held that the claimant had the right to resign at any time and deemed his application for voluntarily retirement as valid and subsisting. In his argument, the claimant made it out that mere submission of the application for voluntary retirement was sufficient for the voluntary retirement to take effect.

62.   But that was not even the case in Garang. In Garang, the claimant decided to resign from service and he accordingly wrote and forwarded a letter of resignation to the defendants on 22 July 2019. The letter was received by the defendants through the Commander of his unit. The defendants acknowledged his resignation letter in the letters dated 24 July 2019 and 29 August 2019. On this basis, Anuwe J held that the claimant tendered his letter of resignation on 22 July 2019 notifying the defendants of his intention to voluntarily resign from service with effect from 20 September 2019; as such, the claimant’s resignation took effect from the date he indicated to exit the service. Accordingly, from 20 September 2019, the claimant was no longer in the service of the defendants. It should be noted that in this case (Garang), the claimant submitted his letter of voluntary resignation, which was received as evidenced by the acknowledgment letters of 24 July 2019 and 29 August 2019. There was proof of receipt of the voluntary resignation letter.

63.   In the instant case, is there such proof before this Court? I saw none. Exhibit HS 6 dated 13 November 2025 is the claimant’s application for voluntary retirement from the 1st defendant. Nothing on the face of this exhibit shows that it was received by the defendants. There is no evidence of acknowledgement of its receipt by the defendants or anybody authorised by the defendants before the Court. The argument of the claimant that he submitted Exhibit HS 6 to the defendants on 13 November 2025 is not evidence of its receipt. There is no averment in the claimant’s affidavit in support as to the receipt of Exhibit HS 6 by the defendants. I must stress though that even if there was an averment to that effect, if specific proof of its receipt is not

brought before the Court, then section 306(2) of the 1999 Constitution would still not be satisfied.

64.   It is also the argument of the claimant that his voluntary resignation takes immediate effect under section 306(1) and (2) of the Constitution. And that even where the defendants claim to have passed regulations purporting to regulate his employment as a member of the armed forced created under section 217 of the Constitution, such regulations, if not in compliance with the provisions of the Constitution, shall be null and void. To the claimant, the military cannot purport to make laws that will conflict with the Constitution or keep people in servitude simply because they opted to be members of the Armed Forces. The claimant then urged the Court to apply ILO Convention concerning Forced or Compulsory Labour, 1930 (No. 29), a Convention ratified by Nigeria on 17 October 1960 to his case. That the rule is that an employee has an absolute/ unfettered right to disengage from work and there is no discretion on the part of the employer to refuse to accept the notice to resign.

65.  This Court in Dr Abubakar Gidado Halilu v. The Chief of Naval Staff & anor, applying Smart

A. Amough v. The Nigerian Air Force & anor, held that section 306 of the 1999 Constitution cannot be qualified by paragraph 03.12 of HTACOS 2017, and that the claimant has an unfettered right to voluntarily retire. What this implies is that in the instant case, the Harmonised Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised) or any such regulation cannot qualify section 306 of the 1999 Constitution.

66.    Additionally, in earlier cases, I indicated that the 1999 Constitution does not have any limiting provision to section 306 of same Constitution. See Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/364/2024, the judgment of which was delivered on 4 March 2025 and Dr Abubakar Gidado Halilu v. The Chief of Naval Staff & anor unreported Suit No. NICN/ABJ/112/2025, the judgment of which was delivered on 13 November 2025. This I did without reference to, or any consideration of, section 34 of the 1999 Constitution dealing with forced or compulsory labour as it relates to military service.

67.  Section 34 of the 1999 Constitution provides that:

(1)  Every individual is entitled to respect for the dignity of his person, and accordingly —

(a)  no person shall be subjected to torture or to inhuman or degrading treatment;

(b)   no person shall he held in slavery or servitude; and

(c)  no person shall be required to perform forced or compulsory labour.

(2)   For the purposes of subsection (1)(c) of this section, “forced or compulsory labour” does not include —

(a)  any labour required in consequence of the sentence or order of a court;

(b)    any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such;

(c)   in the case of persons who have conscientious objections to service in the armed forces of the Federation, any labour required instead of such service;

(d)   any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or

(e)  any labour or service that forms part of —

(i)      normal communal or other civic obligations of the well-being of the community;

(ii)  such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly; or

(iii)    such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly.

68.   Section 34(1)(b) and (c), as can be seen, prohibits the holding of any person in slavery and servitude, or requiring the person to perform forced or compulsory labour. Section 34 of the 1999 Constitution did not define “forced or compulsory labour”. What section 34(2), however, did is to exclude a number of “labours” from being considered as forced or compulsory labour. For present purposes, what is relevant to the instant case is section 34(2)(b) and (e)(ii), which excludes from forced or compulsory labour “any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such” and “any labour or service that forms part of…such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly”. So, by section 34 of the 1999 Constitution, on face value, military service is not forced or compulsory labour.

69.   I use the phrase “on face value” advisedly because section 245C(1)(f) and (h), and (2) of the 1999 Constitution gives this Court jurisdiction/power on matters relating to or connected with international best practices in labour, employment and industrial relations, or pertaining to the application or interpretation of international labour standards, and the application of any international convention, treaty or protocol, which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith. Cases such as Ferdinand Dapaah & anor v. Stella Ayam Odey [2018] LPELR-46151(CA); [2019] 16 ACELR

154 at page 181 and Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola [2020] LPELR-51806(CA) have acknowledged the obligation of this Court to apply Conventions ratified by Nigeria in terms of section 254C(1)(f) and (h), and (2) of the 1999 Constitution.

70.  The two relevant Conventions, for present purposes, are the Forced Labour Convention, 1930 (No. 29) (C.29) and the Abolition of Forced Labour Convention, 1957 (No. 105) (C.105), both of which Nigeria ratified on 17 October 1960. See https://www.ilo.org/dyn/normlex/en/f? p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:103259 as accessed on 14 February 2026.

These two Conventions are accordingly part of the corpus of labour laws in Nigeria.

71.  Article 2(1) of C.29 defines forced or compulsory labour in these words:

For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.

72.  Article 2(2)(a) of C.29 goes on to exclude from the term Forced or compulsory labour “any work or service exacted in virtue of compulsory military service laws for work of a purely military character”.

73.   Up to this point, Article 2(1) and (2)(a) bears close resemblance to section 34 of the 1999 Constitution.

74.   By ILO jurisprudence, the exclusion of compulsory military service from the term forced or compulsory labour, is not absolute. The Committee of Experts on the Application of Conventions and Recommendations (CEACR)’s General Survey concerning the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 103) of 2007 is quite explicit in addressing the scope of this military service exemption. See International Labour Office - Eradication of forced labour (2007), General Survey concerning the Forced Labour Convention, 1930 (No. 29) and the Abolition of Forced Labour Convention, 1957 (No. 103) available   at   https://www.ilo.org/sites/default/files/wcmsp5/groups/public/%40ed_norm/

%40relconf/documents/meetingdocument/wcms_089199.pdf as accessed on 13 February 2026. Paragraphs 43, 46 and footnote 249 are instructive. They read thus:

Paragraph 43: “…compulsory military service should be excluded from the scope of the Convention only if used “for work of a purely military character””.

Paragraph 46: “It should be kept in mind that the provisions of the Convention relating to compulsory military service do not apply to career military personnel. The Convention therefore does not deal with the use of persons serving in the armed forces on a voluntary basis and consequently is not opposed to the performance of non-military work by these persons. At the same time, for the above reason, the provisions of the Convention relating to compulsory military service cannot be invoked to deprive career military personnel of the right to leave the service in peacetime within a reasonable period, e.g. by means of notice of reasonable length”.

Footnote 249: “…the provisions of the Convention relating to compulsory military service cannot be invoked to deprive career military servicemen of the right to leave the service in peacetime within a reasonable period, e.g. by means of notice of reasonable length…” (emphasis is this Court’s).

75.  What all this implies is that despite that section 34 of the 1999 Constitution exempts military service from being classified as forced or compulsory labour, it is now qualified by the ILO jurisprudence regarding C.29 (the Forced Labour Convention) in virtue of section 245C(1)(f) and (h), and (2) of the 1999 Constitution, and cases like Ferdinand Dapaah & anor v. Stella Ayam Odey (supra) and Sahara Energy Resources Ltd v. Mrs Olawunmi Oyebola (supra). As such, for present purposes, the defendants in the instant case cannot deprive the claimant of the right to leave the service in peacetime within a reasonable period.

76.   Accordingly, cases like Elkanah John Garang v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/117/2023, the judgment of which was delivered on 29 February 2024, Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/ 364/2024, the judgment of which was delivered on 4 March 2025, Dr Michael Ikuesan v. The Chief of Naval Staff & anor unreported Suit No. NICN/ABJ/18/2025, the judgment of which was delivered on 8 May 2025, Smart A. Amough v. The Nigerian Air Force & anor unreported Suit No. NICN/ABJ/453/2024, the judgment of which was delivered on 30 September 2025 and Dr Abubakar Gidado Halilu v. The Chief of Naval Staff & anor unreported Suit No. NICN/ABJ/ 112/2025, the judgment of which was delivered on 13 November 2025, which were decided by this Court without, or with little, reference to section 34 of the 1999 Constitution, and the ILO jurisprudence on C.29 just highlighted, remain good law as far the issue of voluntary resignation/ retirement of those in military service is concerned.

77.   It is in this sense that question (1) posed by the claimant was earlier answered in his favour, to wit: the claimant is due and ought to be allowed to voluntarily retire from the service of the 1st defendant. Relief (1), and only relief (1), is accordingly grantable.

78.  Reliefs (2), (4), (5), (6), (7), (8) and (9) are all hinged on question (2) posed by the claimant. I already held that the claimant did not show to this Court when Exhibit HS 6 was received by the defendants. It is the receipt of the application for voluntary resignation/retirement that brings into effect section 306(2) of the 1999 Constitution. The claimant submitted Exhibit HS 6 on 13 November 2025, and argues that his resignation takes effect from same 13 November 2025. Even the reliefs he claims bear this submission, as can be seen in Reliefs (4), (5) and (7). This cannot be as there is no proof of the receipt of Exhibit HS 6 by the defendants before the Court, a condition imposed by section 306(2) of the 1999 Constitution itself.

79.   Since there is no proof of the receipt of Exhibit HS 6 by the defendants, question (2) posed by the claimant cannot be answered in his favour. This is because, it cannot be said that the defendants “validly [refused] the Claimant’s application to voluntarily retire from the service of the 1st Defendant” when it is not shown that the defendants received the application in the first place. In terms of question (2) posed by the claimant, his case must fail in terms of that question. And I so hold.

80.   This being so, reliefs (2), (4), (5), (6), (7), (8) and (9) must equally fail since there was no proof that the claimant’s letter of resignation/retirement was received by the defendants. I so hold.

81.  In concluding this judgment, I need to say a word or two on Exhibits HS 4A, HS 4B, HS 4C and HS 5. The claimant had in 2024 applied for voluntary retirement vide Exhibit HS 4A of 10 October 2024 addressed to the 2nd defendant. The claimant’s application was forwarded to “HQ DIA” vide Exhibit HS 4B of same 10 October 2024; and to “DHQ” and “HQ NAF” vide Exhibit HS 4C of 15 October 2024. Exhibits HS 4B and HS 4C are thus proof of the receipt of Exhibit HS 4A. However, by Exhibit HS 5 of 30 November 2024, the claimant, as a Wing Commander,