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NICN - JUDGMENT

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSHIP: HON. JUSTICE E. D. SUBILIM

 

Date: 22ND JULY, 2025                                                     

SUIT NO: NICN/AB/71/2025

 

 

BETWEEN

URAMA L. IFUNANYA            - CLAIMANT

                                    

AND

 

1. NIGERIAN AIR FORCE                                                 

2. CHIEF OF AIR STAFF                         -                          DEFENDANTS

 

REPRESENTATIONS:

Marven Omoregbe Esq.; with Chantan Amako Esq. for the Claimant

Madu Joe-Kyari Gadzama Esq.; with Sarah Jeta Atumgba Esq.; for the Defendants

 

JUDGMENT

  1. The Claimant commenced this suit on the 13th day of March 2025 vide an Originating Summons seeking this Court to determine the following questions:

 

  1. Whether following the construction of section 217 (1), 218 (4) (b) and 306 (1) and (2) of the constitution of the FRN, 1999 (as amended), the Claimant ceased to be an employee of the 1st Defendant upon the submission of her resignation letter to the 1st Defendant?

 

  1. Following the construction of sections 217 (1), 218 (4) (b) and 306 (1) and (2) of the constitution of the FRN, 1999 (as amended), can the defendant validly refuse the claimant’s voluntary resignation from the service of the 1st Defendant?

 

 

  1. In answering these two questions the Claimant seek to claim the following reliefs:
  2. A declaration that following the construction of the provisions of section 217 (1), 218 (4) (b) and 306 (1) and (2) of the constitution of the FRN, 1999 (as amended), the claimant ceased to be an employee of the 1st defendant upon the submission of her resignation letter to the 1st defendant.

 

  1. A declaration that following the construction of the provisions of sections 217 (1), 218 (4) (b) and 306 (1) and (2) of the constitution of the FRN, 1999 (as amended), the defendants cannot validly refuse the claimant’s voluntary resignation from the service of the 1st defendant.

 

  1. A declaration that the claimant’s resignation letter from the service of the 1st defendant, submitted to the 1st defendant on the 10/12/2025 (sic) and effective on 3/02/2025 is valid and subsisting.

 

  1. 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 the 3/02/2025.

 

  1. A declaration that the defendants’ signal declaring the Claimant as absent without leave (AWOL) after she had formally submitted her resignation letter to the Defendants, is unlawful, invalid, null and void and of no effect whatsoever.

 

  1. An order declaring the Defendant’s refusal to approve the Claimant’s voluntary resignation from the service of the 1st Defendant as null, void and of no effect.

 

  1. 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 3/02/2025 with full entitlements in accordance to the extant pension legislation

 

  1. An order compelling and or mandating the defendant to process and pay the Claimant, all her retirement benefits, including allowances, pension, and any other benefits due to the Claimant at the time of her resignation or due to her by virtue of her resignation.

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  1. An order setting aside the Defendant’s signal declaring the Claimant as absent without leave (AWOL) after she had submitted her resignation letter to the Defendants.

 

  1. An order of perpetual injunction restraining the Defendants, their agents, proxies, assigns or anybody acting under or through them, however described and in whatever capacity, from arresting, harassing, detaining or otherwise infringing on the Claimant’s rights, over her voluntary resignation from the service of the 1st Defendant.

 

  1. In support of the Originating Summons is a 26 paragraphs affidavit deposed to by the Claimant herself and averred that she joined the service effective 28th January 2017 upon being enlisted as an Airwoman through it regular recruitment exercise with entry rank of Aircraftwoman and service No. NAF17/31803F. That while in service with the 1st Defendant she was promoted to Corporal and thereafter sergeant which was her current rank before resignation.

CLAIMANT’S WRITTEN SUBMISSION IN SUPPORT OF THE ORIGINATING SUMMONS

  1. The claimant filed a written address in support of the Originating Summons wherein Counsel on her behalf formulated two issues for determination in this suit to wit:

 

  1. Whether from the peculiar facts of this case and a careful examination of the provisions of sections 217(1), 218(4) b, 306(1) and (2) of the constitution of the Federal Republic of Nigeria, 1999 (as amended), and all other enabling laws, the Claimant’s employment with the 1st Defendant did not come to an end upon the submission of her resignation letter to the Defendants?

 

  1. Whether the Defendants can exercise any control or disciplinary measures over the Claimant, after the submission of her resignation letter to the Defendants?

 

  1. Arguing on issue one, Learned Counsel submitted that from the peculiar facts of this case and the clear provisions of section 217(1), 218(4) b, 306(1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) the Claimant’s employment with the 1st Defendant came to an end upon the submission of her resignation letter to the Defendants.

 

  1. He noted that this case devolves on an interpretation of section 217(1), 218(4) b, 306(1) and (2) of the Constitution of the Federal Republic of Nigeria and the Claimant’s resignation letter submitted to the Defendants on December 10, 2024, with effective date being February 3, 2025. He stated that form time immemorial, a relationship between an employer and an employee is founded on contract and the courts have frequently held that it is trite that the Court cannot force a willing employee on an unwilling employer, same way you cannot force a willing employer on an unwillingly employee. He cited the case of Okoh v. Fedpoly Bauchi & Anor [2024] LPELR-62219 (SC), pg. 38-39, E-A.

 

  1. Learned Counsel stated further 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 the case of Zubairu & Anor v. Mohamed & Ors [2009] (CA), pg. 6-7, A-A. It is the learned counsel’s submission that it is trite that every law is subject to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and if any law is inconsistent with the provisions of this Constitution, the constitution shall prevail, and other law shall to the extent of the inconsistency, be void. See Section 1 (1) & (3) of the 1999 Constitution of the Federal Republic of Nigeria (As amended) and the case of Saraki v. Federal Republic of Nigeria [2016] LPELR-400013 (SC); the Apex court reiterated that the supremacy of the constitution when it held thus “whatever and whenever the constitution speaks any provision of an Act/Statutes on the same subject matter must remain silent” 

 

  1. While section 217(1) of the Constitution establishes the 1st Defendant, section 218(4) (b) donates to the National Assembly the powers to make laws in relation to the members of the armed forces,

 

  1. Counsel submitted that any law made by the National Assembly in furtherance of section 218 (4) (b) above must be consistent with the Constitution. In this instant case, it is not in doubt that that 1st Defendant is a creation of the Constitution and all laws, delegated legislations, 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.

 

  1. Counsel submitted that the provisions of section 306(1) & (2) of the Constitution is the source of the prevailing principle as is settled law that every person employed or appointed into an employment or contract of service, whether common law or statutory employment, has a right to resign from such and employment and he urge the Court to so hold. For clarity, section 306 (1) and (2) of the Constitution. He stated 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, it is submitted 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.

 

  1. Learned Counsel stated that the question that to be considered by this Court is, can the Defendants validly purport to reject the Claimant’s resignation letter on the ground that she did not give the Defendants two years notice? He hasten to answer in the negative as it is trite that the tendering of letter of resignation by an employee automatically ends the employment on the effective date as indicated on the resignation letter, citing the case of WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 248 @ 272; Adefemi v. Abegunde [2004] 15 NWLR ([pt. 895) 1@ 28

 

  1. Counsel submitted that it is also not in issue that the Claimant is eligible to apply for voluntary retirement based the provisions of Section 306 (1) & (2) of the 1999 constitution of the Federal Republic of Nigeria (As Amended). He stated that Exhibit UA3 evinced that the Claimant’s resignation letter dated 10th December, 2024 as content of that document speaks for itself. He submitted that the provisions of Section 306 (1) & (2) of the Constitution are clear and unambiguous. 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, relying on the case of APC V. Karfi [2018] 6 NWLR (Pt. 1616) 479 @ 508; Elkana John Garang v. The Chief of Air Staff & 1 Ord (Unreported Suit No: NICN/ABJ/117/2023 delivered on February 29, 2024). He contended that assuming but not conceding that there is even a semblance of legality backing the Defendant’s request for two years notices before the Claimant can exit the services of the 1st Defendant, he submitted that the only remedy available to the Defendants is to sue for damages as the Defendants cannot compel the Claimant to continue to work for the next two years against her will as such will be modern day slavery which has been outlawed all over the world. He relied on the case of Odesanmi v. FHA [2006] LPELR-11599 (CA), 21-25, E-D.  He equally submitted that the Defendants’ request for two years notice of resignation is not in line with international best labour practice and must be rejected all over the world, employers are tilting towards the bet labour practice, hence, the Nigerian Military cannot be different. He submitted that there is no justification whatsoever for a military officer to give a two years resignation notice before he or she resigns. He cited in support of his assertion the case of NUHPSW v. Outsourcing Service Ltd [2023] LPELR-60683 (CA)Pg. 23-32, E-C

 

  1. Arguing on issue two, learned counsel submitted that the Defendants cannot exercise any control or disciplinary measures over the Claimant, after her resignation letter took effect. As the law is trite that once a person tenders his resignation letter to his or her employers, the employment is deemed effective on that date or on the effective date a stated on the letter of resignation, in this instant case, the Claimant tendered her letter of resignation 10th December, 2024 but to take effect on February 3, 2025. After the effective date on her resignation letter above, the Claimant ought to be allowed to resign from the employment of the Defendant without any issues. We submit that the Defendant lack the powers to take disciplinary actions against the Claimant after the Claimant had formally resigned from the 1st Defendant’s employment, as the law is trite than an employee’s resignation letter becomes effective from the date the letter is received by the employer, he cited the case of FBN Merchant Bank Ltd v. Owotemu [2023] LPELR-60451 (CA) He stated that the resignation need not be formally accepted before it takes effect, he therefore urged the Court to hold that any steps taken by the Defendants, purporting to be a disciplinary measure, including declaring the Claimant as absent without leave, after the effective date on her resignation letter, is null and void and of no effect whatsoever as it is a natural consequence of the letter of resignation that the Defendant lacks the powers to take any disciplinary action whatsoever against the Claimant after she had formally resigned from the Defendant’s employment. Counsel submitted that the Defendant’s signal declaring the Claimant as absent without leave, after she had formally submitted her resignation letter to the Defendants and same had become effective, is null and void and ought to be set aside. He cited the case of United Bank of Africa & Anor v. Eromosele Omiyi [2010] 1 NWLR (pt. 1176) 640 @ pg. 640 @ pg. 661 H. the Court of Appeal address this issue. In conclusion counsel urged the Court, to resolve the issues raised in favour of the Claimant and grant all the reliefs sought 

 

  1. The defendant in their response filed a 15 paragraphs counter affidavit accompanied by a written address on the 16th day of June 2025 deposed to by one flight lieutenant Precious Sampson Austin a staff officer 2 Complaints, Directorate of Legal Service of the 1st Defendant and averred that the letter of enlistment issued to and accepted by the Claimant contains the terms and conditions of service including reference to the Harmonised Terms and Conditions of service (HTACOS) for soldiers/Ratings/Airmen. Extant government circulars and or regulations as the guiding provisions regarding reserve service, resignation/retirement, sundry provisions governing the Claimants career and gratuity/pension rights amongst others. She equally averred that the Claimant served at the Air Force Secondary School Shasha under the Headquarters Logistics Command Lagos and that she never voluntarily withdrew from the services of the 1st Defendant noting that the Claimant is not yet due for the exercise of the right of voluntary resignation. It is equally her averment that there is in force a HTACOS 2024 which replaced HTACOS 2017 which the Claimant as an Airwoman is bound by the provisions and that both of them stipulate the conditions for eligibility ffor voluntary resignation at chapter 02.05.  That the Claimant has not satisfy this minimum condition of 10 years which was brought to the knowledge of the Claimant before enlistment into the service of the 1st Defendant and she willingly accepted to serve on the said terms. She further avers that the Claimant submitted letter of voluntary resignation and stopped reporting at the 1st Defendant’s Command in Lagos and that the voluntary resignation had not yet been approved in view of the eligibility considerations, the Claimant nonetheless proceeded on absence without official leave  AWOL which was declared by the 1st Defendant and brought to the notice of the Claimant which action gives rise to triable offence in accordance with the provisions of the Armed Forces Act. That it not be in the interest of justice to grant the reliefs sought by the Claimant.

DEFENDANTS’ WRITTEN SUBMISSIONS IN SUPPORT OF THE COUNTER AFFIDAVIT IN OPPOSITION TO THE CLAIMANT’S ORIGINATING SUMMONS

  1. The Defendants in their own part, adopted albeit with slight modifications the two issues raised by the Claimant and Counsel on their behalf distilled two issues for determination of this Court as follows:

 

  1. Whether, from the peculiar facts of this case and a careful examination of the provisions of section 217(1), 218(4) (b), 306(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, and all other enabling laws and applicable regulations, the Claimant's employment with the 1st Defendant came to an end simply by the submission of her resignation letter to the Defendants

 

  1. Whether the Defendants can exercise any control or disciplinary measures over the Claimant, after the submission of her resignation letter to the Defendants.

 

  1. Arguing on issue one, learned Counsel submit that the Claimant's employment with the 1st Defendant never came to an end by merely submitting her resignation letter to the Defendants as the reasons d'être for this submission are comprehensively analyzed hereunder. He went on to state that the employment of the Claimant with the 1st Defendant is Completely outside the Contemplation of Section 306 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Counsel equally posited that the essential element as relates to the issue under consideration is the Requirement that the office in question is one established by the Constitution, because only then can the provision of Section 306(1) and (2) of the Constitution be rightly invoked. He submitted that the referenced constitutional provision does not contemplate the office occupied by the Claimant throughout her Service, as it stands, within the employment of the 1st Defendant as the basis for this is not far-fetched, he noted that from evidence before the Court, the Claimant joined the 1st Defendant as an Aircraftwoman, was promoted to the rank of Corporal, and is currently a Sergeant within the employment of the 1st Defendant. Neither of these positions nor ranks are a creation of the Constitution.

 

  1. Counsel further submitted that the 1999 Constitution, at Section 217(1), establishes the Armed Forces of the Federation as an agency of the government cannot be stretched to imply that any office within the agency is also a creation of the Constitution. If the Constitution had intended that the provisions of Section 306(1) and (2) apply to every employee of the 1st    Defendant, it would have clearly stated so. The use of the words “…any office established by this Constitution.” not only lays to rest every ambiguity but further negates any contrary interpretation that the case of the Claimant herein seeks to adduce. He posited that the application of the literal rule of statutory interpretation is well entrenched in our system of adjudication to the effect, he cited the case of Nwobike v. FRN [2002] LPELR-56670 (SC) (Pp. 66-67, paras. D-A.

 

  1. It is also the contention of Counsel that it can be deducible that section 306(1) and (2) of the Constitution, in its deployment of the words "..any office established by this Constitution", intends the applicability of the provision to strictu sensu within such categories outlined in Sections 141,215, & 230(2) 1999. It does not extend to positions (under whatever appellation) within any institutions and agencies, where such position, as the case may be, cannot be said to be offices created by the Constitution. It is the contention of Counsel that the Constitution does not create any offices known as the office of an 'Aircraftwoman', a 'Corporal' or a "Sergeant' of the Nigerian Air Force. Thus, section 306(1) and (2) of the 1999 Constitution, which the Claimant seeks to be interpreted and applied, does not contemplate the employment of the Claimant, whether in the circumstances of the peculiar facts of the instant case or otherwise. He urged the Court to so hold

 

  1. On the issue of the Regulation to which the Claimant is subject prescribes the Qualifications and Procedure for Voluntary Resignation. Counsel mentioned that it is no contention that in view of the sensitivity surrounding military Operations, military personnel such as the instant Claimant have their Conducts and modus operandi regulated by a set of rules usually different from those of regular civilians. He cited the case of Chief of Naval Staff & Anor v. Okpanachi [2022] LPEIR-(CA) Pp. 45-47, paras. F-B. Learned counsel submitted that is an established fact that the Claimant herein was employment by the 1st Defendant as personnel   by virtue of Exhibits NAF A1 & A2 attached to the Defendants' Counter Affidavit are Harmonized Terms and Forces Armed (HTACOs) Conditions of for Service Nigerian Soldiers/Ratings/Airmen, 2024, which was signed by the President and Commander-in-Chief pursuant to his constitutional powers & the HT?COS Soldiers/Ratings/Airmen, 2017, which was replaced by the HTACOS Soldiers/Ratings/Airmen, 2024. He posited that the clear import of the provision is that any officer of the Nigerian Army has the opportunity and right to retire voluntarily from us service after serving for at least an initial period of 10 years. He cited the case of Shalks v Chief of Air Staff & Anor. (2018) PEN 45277(CA) (Pp. l1-19, Paras. F-F). he urged the Court to so hold.

 

  1. Arguing in respect of whether the Claimant has not met the Minimum Qualifications for Voluntary Withdrawal Prescribed in the Applicable Regulation, learned Counsel stated that the facts and evidence herein has establish that the Claimant joined the service of the 1st Defendant in 2017, submitted a purported voluntary resignation letter in 2024, and stopped reporting at the 1st Defendant from February 2025 under the pretext that her voluntary resignation became operative therefrom. He stated that the Claimant has only completed an initial period of 7 years of service, 3 years short of the requisite duration of service which would have qualified the Claimant to voluntary withdrawal. Consequently, the Claimant's mere submission of a letter of voluntary resignation cannot be deemed effective on the terms expressed therein, afortiori as this Court is enjoined to take judicial notice of the unique nature of service within the armed forces as a paramount security institution with inherent sensitivities, which distinguish it from service in other establishments or agencies. Glaringly, the Claimant relies significantly on the decision of this Court in Elkanah John Garang v. Nigerian Air Force (NICN/?BJ/117/2023), Counsel therefore urged this Court to resolve this issue in favour of the Claimant. Continuing, he submitted that the above submission is that the referenced decision was arrived at without advertence to the consideration that “offices created in the Constitution" is not the same as offices within agencies/institutions created by the Constitution, as an Agency/Institution may be created by the Constitution, but it does not follow that any office within such  agency/institution may be created by the it  does not follow that any office within such agency/institution is also an office created by the Constitution. Section 306(1) and (2) of the Constitution applies strictly to offices created by the Constitution, and nothing more. Hence, the decision of this Court in Elkanan John Garang v Nigerian Air Force, by reason of the foregoing argument, reached per incuriam.

 

  1. In concluding on this issue, it is the submission of Counsel that, from the peculiar facts of this case and a careful examination of the provisions of sections 217(1), 218(4) (b), 306(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, and all other enabling laws and applicable regulations (including the HTACOS Soldiers/Ratings/Airmen 2024), as the Claimant's employment with the 1st  Defendant did not come to an end simply by the submission of her resignation letter to the Defendants, as, significantly, the provisions of section 306(1) and (2) of the 1999 Constitution do not apply in the instant situation. Thus, the question of inconsistency with the provisions of the Constitution is non sequitur, no matter the attempt to portray it as such. He urged the Court to so hold, and to resolve this issue in favour of the Defendants.

 

  1. Respecting issue two Learned Counsel submitted that the disciplinary powers of the Defendants over the Claimant inure despite the submission of the purported resignation letter by the Claimant to the Defendants. He posited that Section 32 of the Armed Forces Act provides unequivocally to the effect that, until discharged, any person enlisted into the armed forces remains subject to service law, including the provisions relative to their control and discipline under the Armed Forces Act. Similarly, having established that the employment of the Claimant within the 1st Defendant subsists since her enlistment, Counsel submitted that Claimant remains subject to the control and discipline of the Defendants, in line with the extant laws. Learned Counsel therefore urged the Court to so hold and resolve this issue in favour of the Defendants. In conclusion, Counsel submitted that Section 306(1) and (2) of the 1999 Constitution does not apply to the Claimant's situation because her position as an Aircraftwoman, a Corporal or Sergeant in the 1st Defendant is not an office established by the Constitution, and no rule of statutory interpretation supports any contrary interpretation or finding. Furthermore, Counsel posited that the HTACOS Soldiers/Ratings/Airmen, 2024 prescribe a minimum service period of 10 years before voluntary withdrawal, which the Claimant has not met. Therefore, the Claimant's resignation letter is to effective, and she remains subject to service laws, a fortiori the control and discipline of the Defendants, until she is discharged from service. Learned Counsel urged Court to resolve both issues raised herein in favour of the Defendants, and to dismiss the instant suit with exemplary costs.

 

COURT’S DECISION

 

  1. I have carefully considered the Originating Summons filed by the Claimant together with the accompanying processes. I have equally read all the processes filed by the Defendants in response to same. It is my humble view that the issue for consideration which will meet the justice of this case is:

 

Whether or not the Claimant has proven his case to be entitled to the grant of the reliefs sought before this Court

 

  1. This is a suit commenced under Order 3 Rule 3 of the Rules of this Court and the Claimant raised two questions for the determination of this Court which are considered above. The general position of the law regarding the standard of proof in civil proceedings is that the Claimant must succeed on the preponderance of evidence or on the balance of probabilities. By Sections 131, 133 and 134 of the Evidence Act 2011, the burden of proof in civil proceedings, such as the instant one, lies on the party who would fail if no evidence were adduced on either side. Therefore, a party on whom the burden of proof lies must plead relevant facts, and these pleaded facts must also be supported by credible evidence for his case to succeed. See the cases of Akinremi v. Binuyo & Ors [2010] LPELR-9150(CA); N.N.P.C v. Lutin Investments [2006] 1SC (Pt. III) 49, [2006] 2 NWLR (Pt. 965) 506; Omisore v. Aregbesola [2015] NWLR (Pt. 1482) 1@ 273; Section 131, 132 and 133 of the Evidence Act, 2011.  I am mindful that in Originating Summons, the affidavit filed in support usually serve as the statement of facts while the counter affidavits serve as statement of defence. These processes are of the same evidential value as a witness statement on oath. See Owuru v. Adigwu [2018] 1 NWLR (Pt. 1599) and NNPC v. Famfa Oil Ltd [2012] 17 NWLR (Pt 1328).

 

  1. Let me also highlight the fact that, in a suit where the Claimant is seeking for a declaratory order, the burden of proof rests on the party seeking the order to demonstrate, on a balance of probabilities, that they are entitled to the declaration. In other words, in a claim for declaratory reliefs, the onus is on the Claimant to establish his case on a preponderance of evidence. He will not be entitled to such reliefs, even on the admission in the pleadings of the defense because the Court must be satisfied that he is entitled to the relief claimed. In the case of Sanusi v. Ameyogun [1992] 4 NWLR (Pt. 237) 527, the Supreme Court noted that the first stage of enquiry in a claim for declaratory relief is to consider whether the Claimant has made out a prima facie case. It follows therefore that the burden of proof in a claim for declaratory reliefs as in the instant case is on the Claimant and the Claimant must succeed on the strength of his own case and not on the weakness of the Defendant’s case. The Claimant would not be entitled to judgment even on admission of the Defendants to the claimant’s claims. This is more so as it is the duty of the Claimant to first prove the existence or non-existence of what he asserted by relevant, admissible and credible evidence. Once this burden so placed on the Claimant is discharged, the onus then shifts to the Defendant. See the case of Uzodinma v. Ihedioha [2020] 5NWLR (Pt 1718) 529 @ 578, Paras D-G. However, the exception to this general rule is that a Claimant is allowed to rely on aspects of Defendant’s case that support his own. See the case of Hanatu v. Amadi [2020] 9 NWLR (Pt 1728) 128, Paras A-C and; Salisu v. Mobolaji [2016] NWLR (Pt 1535) 280-281, Paras H-A and; C.D.C. (Nig) Ltd v. SCOA [2007] 6 NWLR (Pt 587)410.

 

  1. In the instant case the claimant was a member of the 1st defendant service having joined the service effective 28/01/2017 when she enlisted as an Airwoman with service No. NAF17/31803F and rose to the rank of a Sergent. The letter of enlistment and promotion signal to sergeant is marked as Exhibit UA1 and UA2 respectively. Claimant stated that having put in a service of 8 years she decided to voluntarily resign to give her time to focus on her young family. In line with this Claimant wrote a resignation letter to the 2nd Defendant dated 10/12/2024 and a covering letter dated 15/01/2025 which are marked as Exhibit UA3 and UA4 respectively. However, to the Claimant’s surprise, the 2nd Defendant refused her resignation on the ground that she has to serve for two more years. From the evidence before this Court, in discharging this burden the Claimant tendered Exhibit UA3 and UA4 which are letters written by the defendants wherein they acknowledged the receipt of the Claimant’s letter of resignation. While Exhibit UA4 is a letter forwarding the Claimant’s resignation letter to the 2nd Defendant for further directives on the said resignation. 

 

  1. The Defendants on the other hand, contended in paragraphs 12 of their counter affidavits that Claimant under the Harmonized Terms and Conditions of Service for the Nigerian Armed Forces (HATCOS) which is the law regulating the appointment, promotion and discipline of the Defendants that a letter to resign does not automatically translate to a resignation from the 1st Defendant as Claimant has to put in a mandatory service with the 1st Defendant for not less than 10 years. Defendants’ Counsel further argued that Claimant employment with 1st defendant is outside the contemplation of Section 306 (1) and (2) CFRN 1999 (as amended).

 

  1. In putting the arguments into perspective, there is need to understand the substance of what section 306 of the constitution connotes. The provisions of Section 306 (1) and (2) is to the effect that any person who is either appointed or elected or selected to any office established by the Constitution has the right to resign from the office and the resignation of that person shall take effect when the letter of resignation is received by the employer or the authority or person authorized to receive it. In effect Section 306 implies that it has to be only such authority established under the Constitution; and not only that, such authority also has no input to make concerning the said resignation. Simply put, the Constitutional provision clearly shows that whether the authority accepts the resignation or not, the appointment stands terminated the moment the letter of resignation is received by the authority or on the date indicated in the resignation letter.

 

  1. I have taking judicial notice of the fact that the Defendants are created under Section 217 (1) of the 1999 Constitution, and so are bound by Section 306 of the same Constitution. The contention of the Defendants that Claimant is not part of “any person who is appointed” referred to in section 306 (1) is not the true interpretation of the law notwithstanding the provision of HATCOS.

 

  1. The next question that easily comes to mind is whether the Defendants have the right to refuse to accept Claimant’s resignation. The law is that resignation need not be formally accepted before it takes effect. See Yesufu v. Governor of Edo State [2001] 13 NWLR (Pt. 731) 517. It presupposes 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 the case of Ibrahim v. Abdallah [2019)] 17 NWLR (Pt. 1701) 293 @ 315 the Supreme Court did not mince words in restating this position of the law in the following words:

A notice of resignation is effective, not from the date of the letter or from the date of the acceptance, but from the date the letter is received by the employer or his agent. Thus, resignation dates from the date notice is received… There is absolute power to resign and no discretion to refuse to accept notice of resignation.

 

  1. Let me pause to state that the ILO Conventions can even be seen in the law’s treatment of disengagement from work, where the rule is that an employee has an absolute right to disengage from work, and there is no discretion on the part of the employer to refuse to accept the notice to resign. See Yusuf v. Gov. Edo State [2001] 13 NWLR (Pt 73) 517. Thus any attempt to stop an employee from disengaging by an employer would be interpreted as forced or compulsory labour. See Ineh Monday Mgbeti v. Unity bank Plc Unreported Suit No. NICN/LA/98/2014. 

 

  1. On this ground I find that the provisions of Section 306 (1) and (2) of the Constitution is clear and devoid of any ambiguity. And it is trite that in situations such as this a statute has to be giving its ordinary and literal meaning. I find that the Claimant indeed duly resigns her appointment with the Defendants in line with the provision of section 306 (1) and (2) of the Constitution. This I so hold.

 

  1. The other issue raised by Defendant is the act of the Defendants to still exercise disciplinary action on the Claimant. It is the submission of learned Counsel to the Defendants that despite the submission of the letter of resignation, Defendants can still exercise disciplinary powers on the Claimant. In the case of U.B.A. Plc v. Omiyi [2010] 1 NWLR (Pt. 1176) 640 the Court of Appeal use strong words in describing the attitude of employers to employees resigning their employment in the following words:

 

“Exhibit A5 is an exhibition of corporate delinquency, intolerance and professional envy. No employer is allowed to destroy the name and ruin the career of an employee because he elects to resign his appointment. If there exist issues to be settled, legal avenues must be utilized not unorthodox methods as in this appeal. The appellants must bear the brunt of their malice.”

 

  1. I find no legal basis for the insistence of the Defendants to still exercise disciplinary control on the Claimant despite the clear wordings of the Constitution and the plethora of judicial authorities outlining the effect of a voluntary resignation. It goes without saying that the Claimant having voluntarily resign from the employment of the 1st Defendant as provided under the Constitution, the Defendants cease to have any right to treat Claimant as its employee notwithstanding the provisions of HATCOS. This I so hold.

 

  1. In view of the reasoning above, answers to the twin questions posed by the Claimant on the face of the Originating Summons is in favour of the claimant and therefore answered in the affirmative.

 

  1. Having arrived at this conclusion, it follows therefore that reliefs 1, 2, 3, 4, 5 and 6 contained on the Originating Summons hereby succeeds. Having granted the foundational reliefs, it goes without saying that the consequential reliefs have to follow suit. Accordingly, reliefs 7, 8, 9 and 10 are hereby granted.

 

  1. Judgment is hereby entered. There is no order as to cost.

 

 

                                                                                          ……………………………

                                                                                         Hon. Justice E. D. Subilim

                                                                                                       JUDGE