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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: 2ND SEPTEMBER , 2025                              

SUIT NO: NICN/ABJ/25/2025

 

BETWEEN:

 

AKERELE ADEDOYIN JEREMIAH                     -                    CLAIMANT

 

AND

 

  1. THE CHIEF OF AIR STAFF                                          DEFENDANTS                    
  2. THE NIGERIAN AIR FORCE                               

 

 

 

REPRESENTATION:

Inibehe Effiong, Esq; with O. L. Ofusia, Esq; for the Claimant

Victor O. Atang, Esq; with J. A. Olugbade, Esq; and C.N Okasa Esq; for the Defendants.

 

RULING/JUDGMENT

 

INTRODUCTION

  1. This action was commenced by an Originating Summons filed on the 30th day of January, 2025 praying this Court to determine the following question against the Defendants:
  2. Whether the Claimant being a public servant having voluntarily resigned from the Nigerian Air Force can be compelled by the Defendants to remain in the service, having regards to the provisions of Section 306 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
  3. Whether or not the Claimant’s letter of voluntary disengagement/resignation from the Nigerian Air Force is valid and effective from the day of receipt.
  4. It is upon the determination of the issues raised above that the Claimant urged the Court to grant the following reliefs;
  5. A DECLARATION that by virtue of the provisions of Section 306 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Claimant is entitled to voluntarily disengage and resign from the service of the Nigerian Air Force.
  6. A DECLARATION that the letter(s) of disengagement from service of the Nigerian Air Force submitted by the Claimant to the Defendants is valid and effective.
  7. AN ORDER deeming the Claimant’s letter(s) of disengagement from the service of the Nigerian Air Force duly acknowledged by the Defendants as valid and effective.
  8. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants, officers, departments, agents, privies, and/or any other person acting on their behalf from subjecting the Claimant to continuous or compulsory service in the Nigerian Air Force.
  9. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their servants, officers, departments, agents, privies, and/or any other person acting on their behalf from arresting, detaining or taking any punitive action against the Claimant on account of his voluntary disengagement from the service of the Nigerian Air Force.
  10. AND FOR SUCH FURTHER ORDER OR ORDER(S) as this Honourable Court may deem fit to make in the circumstances of this case.

THE CLAIMANT’S CASE

 

  1. This is a suit brought by the Claimant who was commissioned into the Nigerian Air Force on the 14th of September, 2013. The Claimant decided to resign from the service of the Nigerian Air Force due to want of job satisfaction and other personal issues some of which include: emotional distress, demotivation and unpleasant experiences he underwent while under the service of the Nigerian Air Force. The Claimant decided to resign and accordingly, he wrote and forwarded a letter of resignation to the Defendants on 28/11/2022 and a further letter on 17/5/2023. The said letters were received and acknowledged by the Defendants. The Claimant contends that by the resignation notice,             the Defendants cannot complain about his resignation nor declare that he is still in the service of the Nigerian Air Force.

 

CLAIMANT’S WRITTEN SUBMISSION

 

  1. Also filed along with the Originating Summons is a Written Address, wherein Learned Counsel for the Claimant raised a sole issue for determination thus; 
    1. Whether the Claimant who was a public servant having voluntarily resigned from the Nigerian Air Force can be compelled by the Defendants to continue to serve in the Public Service of the Federation against his wish, having regards to the unambiguous provisions of Section 306 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
    2. Whether the Claimant’s letter(s) of voluntary disengagement and resignation from the Nigerian Air Force is valid and effective from the day of receipt.

 

  1. On issue one Counsel to claimant submitted that the provisions of Section 306 of the Constitution of the Federal           Republic of Nigeria, 1999 (as amended) expressly and unambiguously permits resignation of any person from any office established by the Constitution once a letter signifying        such resignation is received by the authority or person to whom it is addressed or by a person authorized by that authority or person to receive it. He equally argued that this constitutional provision applies to all public officers or offices established by the Constitution and has been accorded judicial approval by the Court of Appeal in the case of Onukwubiri v. Ibeakanma [2014] LPELR-23804 (CA). In the case of Yusuf V. Governor of Edo State [2020] 13 NWLR (Pt. 731), the Court at pages 525-533 paras. H-E, in line with the provision of the Constitution above held that:

  “A notice of resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. It is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation has been accepted.”

 

  1. Counsel continued and argued that Exhibit “C” which is the Claimant’s letter of resignation, having been received and acknowledged by the Defendants validates the resignation in law as provided under section 306 (1) and (2) the Constitution of the Federal Republic of Nigeria,             1999 (as amended). Counsel submitted that the office of the 2nd Defendant is a creation of the Constitution of the Federal Republic of Nigeria. It is created under Section 217 of the 1999 Constitution. And further argued that the Claimant was a public officer serving in the 2nd Defendant. Being a public officer, the             Claimant has the constitutional right to resign from any employment whatsoever in so far as due process is followed. Counsel placed reliance on the following cases Ibrahim V. Abdullahi           [2019] LPELR-48984 (SC) and Yesufu V. Government of   Edo State [2021] LPELR-3520(SC).

 

  1. Counsel also posited that the law is well settled that a letter of resignation of an employee takes effect from the date it is delivered to and received by an employer or its agent. Okolie v. Elumelu & Ors [2023] LPELR-61110(CA). According to Counsel Exhibit “H” which has been attached to the Affidavit in support of the Claimant’s Originating Summons before this Court, that is a letter written by one ET AGBEBI (Gp Capt) for the 1st Defendant and that by the said letter it is clear that the Defendants had received express communication about the Claimant’s resignation letter from the service of the 2nd Defendant, but however citing the provisions of HTACOS Officers 2017 (Revised) Paragraph 03.10(a), the Defendants claimed that he (Claimant) is not yet eligible for     voluntary retirement since he has not attained a minimum of 15 years of commissioned service. It is the submission of Counsel that any law prohibiting or refusing any person their right to resign from the public service is unconstitutional. Continuing, Counsel contended that Claimant vide his affidavit           particularly paragraphs 6-16 has cited examples of injustices that informed his need to resign from the services of the 2nd Defendant. That the Claimant duly observed the Constitutional requirement as it relates to resignation hence the letter written by him signifying his resignation and the same letter having been received by the Defendants, the Claimant’s resignation has taken effect upon receipt by the Defendants and the Claimant is entitled to seek new opportunities in his best interest. Counsel referred the Court to Section 306(2) of the Constitution.

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  1. Counsel contended that the Defendants have erroneously failed to acknowledge the Claimant’s resignation from the 2nd Defendant as valid and effective on account of the HTACOS Officers 2017 (Revised) Paragraph 03.10(a). He argued that the Defendants cannot either on their own discretion under the guise of any legislation refuse the Claimant his right to resignation. To do this will undermine the principle of Constitutional supremacy, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) being the grundnorm and ranking supreme in respect to other laws           of Nigeria. He placed reliance on the case of Sunday v. Olugbenga [2008] LPELR-4995 (CA) and W.A.E.C v. Oshionebo [2006] 12 NWLR (Pt.994) 258. It is the position of Counsel that the law is that where the language of the provisions of a statute are clear and unambiguous, the provisions have to be given their ordinary grammatical meaning. He relied on the case of Onukwubiri V. Ibeakanma (Supra). He reiterated that the provisions of the 1999 Constitution of the Federal Republic of Nigeria, 1999 (as amended) cannot be construed subject to subordinate statutes or subsidiary legislation. Constitutional provisions stand above all enactments, statutes or laws and its provisions cannot be made subject to any other Act or  enactments. Thus, where any inconsistency or conflict exists between the provisions of the Constitution and any other Act or law, that conflict is to be resolved in favour of the 1999 Constitution, and to the extent of such conflict or inconsistency that provision of the Act or law becomes null and void by effect of Section 1(3) of the 1999 Constitution.  He cited in support of his assertion the case of INEC v. Musa [2003] LPELR-4927 (SC) and A.G Bendel State V. A.G Federation & Ors (1981) LPELR 605 (SC). That Section 306 of the Constitution is a clear statutory provision which leaves no room for ambiguity or conflicting views as to what it means. It 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. Similarly, when the Constitution provides that the resignation takes effect when the letter of resignation is received by the relevant authority, it implies that the authority has no input to make to the resignation. That is to say whether the authority accepts the resignation or not the appointment stands terminated the moment the letter of resignation is received         by the authority. 

 

  1. Counsel submitted that since the right and procedure for resignation are constitutional, they cannot be altered or taken away by any law inferior to the Constitution. Counsel urged this court to hold, that the Claimant’s resignation from the service of the 2nd Defendant is in accordance with Section 306 of the Constitution of the Federal           Republic of Nigeria, 1999 (as amended). Section 306 of the Constitution applies to offices established by the Constitution. The Claimant was commissioned into the 2nd Defendant on the 14th of September, 2013. Being commissioned, the Claimant was under the service of the 2nd Defendant. Section 217(1) of the 1999 Constitution provides that there shall be 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. The 2nd Defendant is an office or body established by the Constitution. Thus, the Claimant being employed into the 2nd Defendant derived a right from Section 306(1) and (2) of the Constitution to resign from the employment of the 2nd Defendant in a manner stipulated by the Constitution. Counsel referred this court to the case of Abekhe v. Alpha Merchant Bank Plc [2017] ALL FWLR [Pt. 914] 971 @ 1002. According to Counsel it is clear that the Claimant has an unrestrainable right to resign from his appointment with the 2nd Defendant noting that no special approval is needed for the exercise of a person’s constitutional right to resign. Consequently, when the Claimant tendered his resignation letter dated 28th November, 2022, he has properly exercised his right under Section 306 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. The legal implication of the Claimant’s mode of resignation is that after tendering his resignation letter and upon receipt of same by the Defendants, the Defendants do not have any right thereafter to still consider the Claimant to be in the service of the 2nd Defendant reiterating that the Claimant voluntarily joined the service of the 2nd Defendant and he has the right to voluntarily resign from the service. Counsel quoted the words of my Learned Brother, O.Y ANUWE J. in the recent and similar case of Elkanah John Garang v. The Chief of Air Staff & Anor NICN/ABJ/117/2023:

 

 “Military service is not slavery and as such the Defendants cannot force the Claimant to remain in the service of the 2nd Defendant when it is his desire to exit the service and he had accordingly given notice of his resignation. “

 

  1. In conclusion Counsel posited that having regards to the totality of facts and evidence adduced in the Affidavit in support of this Originating Summons, claimant’s legal arguments canvassed before this Court, Counsel urge this Court to determine the Claimant’s            issues for determination in his favour and grant all the reliefs sought.

 

DEFENDANT’S CASE

 

  1. The Defendants in opposition filed a thirty-three (33) paragraphs affidavit dated 15th day of April 2025 deposed to by one Squadron leader Goodnews Arefateyah Mepirima staff of the Defendants and averred that the Claimant was selected to complete flight training in the United States of America by the Defendants with full sponsorship and the study expenses inclusive of allowances were paid to the Claimant and every other officers of the 2nd Defendant during the pendency of their study. He equally averred that the deployment of personnel under 2nd Defendant is based on service exigencies and that promotion is done in compliance with the Harmonized Terms and Conditions of Service. That the request of the Claimant for permission to seek medical attention was granted consequent upon compliance with due process of granting such permission noting that the Defendants are committed to the welfare of their personnel and that there is appropriate department were personnel of the 2nd Defendant can address issues of concerns. It is also his averment that Claimant letter was received by the Defendants however subject to the approval by the relevant authorities and in strict compliance with the Harmonized Terms and Conditions of Service (HTACOS) officer. That the letter cited in paragraph 20 is a mere recommendation subject to confirmation in line with the relevant provisions of extant Armed Forces Act and Regulations reiterated that voluntary retirement of personnel in the 2nd Defendant is regulated by the Harmonized Terms and Condition of Service and that the extant Armed Forces Act and the HTACOS are superior and supersede the said directive of the Chief of Defence Staff. He stated that the AWOL signal was sent in line with the extant provision of the Armed Forces Act and the HTACOS and that there is no tolerance of victimization under the service of the 2nd Defendant. He averred that the Claimant is in violation of the extant Armed Forces Act and HTACOS wherein all officers of the 2nd Defendant including the Claimant is bound by it more so it is a standard practice all over the world for Army to regulate and make prescriptions in relation to voluntary retirement and that the rationale for precluding early voluntary retirement is to ensure operational readiness, effectiveness and stability as allowing early voluntary retirements or resignations could lead to manpower shortage and affect the readiness for missions and their deployment which the case of the Claimant. That the Claimant’s suit is frivolous and amount to a waste of the scarce time of this Court.

 

DEFENDANT’S WRITTEN SUBMISSION 

 

  1. The defendants filed this Written Address in support of its Counter Affidavit where Counsel on their behalf formulated the following issues for determination before this Court, to wit; 

 

Whether having regards to the relevant provisions of the armed forces act, Harmonised Terms and Conditions of Service (HTACOS) officers and the Constitution of the federal republic of Nigeria viz a viz the facts of this case, the Claimant is entitled to the reliefs sought before this Honourable Court?

 

  1.  
  2.  
  3.  
  4. Counsel answered the above issue in the negative to the effect that the Claimant is not entitled to the reliefs sought in light of relevant statutory provision and Terms and Conditions of Service. Counsel sought to establish from the onset that by virtue of Section 26 of the Armed Forces Act, the President of the Federal Republic of Nigeria, whom by virtue of Section 218 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and Section 23 (3) of the Armed Forces Act is the Commander-in-Chief of the Armed Forces, is statutorily empowered to make regulations governing the commissioning of officers, their terms of service, promotion, retirement, resignation, dismissal and such other matters concerning officers of the Armed Forces as may seem to him necessary. He went on to state that pursuant to the above constitutional and statutory power of the President of the Federal Republic of Nigeria, the Harmonised Terms and Condition of Service (HTACOS) Officers, 2017, was signed into law by the President and became binding on all personnel of the Armed Forces in Nigeria being the Nigeria Army, Nigerian Navy and the Nigeria Air Force sued as the 2nd Defendant in the instant suit. It is worthy to note that by virtue of Item 01.01 of the Harmonised Terms and Conditions of Service (HTACOS) Officers, 2017, this document contains Regulations governing conditions of service in the Armed Forces of Nigeria. Of particular interest, as it relates to the subject matter of the instant suit before the Honourable Court is Item 03:10 (a) of the Harmonised Terms and Conditions of Service (HTACOS) 2017, which is christened “Length of Service.

 

  1. It is equally the position of Counsel that there is no gainsaying the fact that the Harmonized Terms and Conditions of Service (HTACOS) 2017, is a subsidiary legislation having been made pursuant to the powers of the President to make such laws under the Armed Forces Act. He placed reliance on the case of to NNPC v Famfa Oil Ltd [2012] 17 NWLR (Pt. 1328) 148. According to Counsel, by virtue of the above provision, which is binding on all personnel of the Armed Forces in Nigeria, inclusive of the 1st Defendant, that the Claimant’s voluntary retirement from the service of the 1st Defendant was not in accordance with the extant prescribed procedure, particularly, the Harmonised Terms and Conditions of Service of Officers (HTACOS) 2017 because the criteria for voluntary retirement of Regular Combatant Officer is regulated by the relevant Armed Forces Laws including but not limited to the HTACOS. Hence, as a Regular Combatant Officer of the Nigerian Air Force having been so admitted in paragraph 5 of the Claimant’s Affidavit evidence, eligibility to apply for voluntary retirement is contingent upon completing a minimum of 15 years of Commissioned service. A simple arithmetic calculation will reveal that as at 28th November, 2022, which the Claimant first communicated his intention to voluntarily retire through a letter, it was only ten years since the Claimant commenced service with the 1st Defendant. Therefore, the Claimant, having failed to satisfy the minimum duration of years requirement, cannot be deemed to have lawfully retired from service by his letters of voluntary retirement sent to the Nigerian Army (2nd Defendant) regardless of the erroneous recommendation for retirement by his Commanding Officer, which was done in apparent ignorance of the rules regulating voluntary retirement. Counsel referred the Court to paragraph 5 of Claimant affidavit before the Court. He continued and posited that it is trite law that where the provisions of a law or regulation are clear and unambiguous, same should be accorded its literal, plain and ordinary meaning. He cited in support of his assertion the case of Okoh v. Fedpoly Bauchi & Anor [2024] LPELR – 62580 (SC). Furthermore, Counsel contended that the extant legal position which the Claimant is aware of and bound by is, that before a Regular Combatant Officer can apply for retirement, such an Officer must have served for a minimum period of 15 years of commissioned service. Unfortunately, the Claimant who has only been in the service of the 2nd Defendant for a period of 10 years and who is fully abreast of the above extant provision in the Nigerian Air Force chose to deliberately act in total disobedience to the said extant provision. It is also pertinent to state at this point that the Claimant being a Public Servant must abide strictly by the prior agreement with the employer (the 2nd Defendant), in adherence to the established statutory protocol governing retirement and disengagement. He placed reliance on the case of Amokeodo v. IGP & Ors [1999] LPELR-468 (SC). Similarly, it is a fundamental principle of law that every institution, body or establishment created by law and duly recognized by statute is subject to a distinct set of laws which are peculiar to it, in this case, the Armed Forces Act, the HTCOS and all relevant Rules and Regulations which contains regulations governing conditions of service in the Armed Forces of Nigeria. It has also been shown that it is standard practice all over the world to regulate the voluntary retirement or resignation of personnel of the Armed Forces. It is no doubt that, the Armed Forces Act and the HTCAOS being a creation of the Constitution, constitutes the primary legislative framework governing the activities, duties, and obligations of the Armed Forces of Nigeria, which the Nigerian Air Force (the 2nd Defendant) is part of and by extension the Claimant, and as such both the Claimant and the 2nd Defendant are expected to mandatorily comply strictly with the provisions of the afore stated laws which provides for amongst others, the procedure for voluntary retirement and the conditions to be fulfilled. He relied on the case of Chief Of Naval Staff v. Okpanachi [2022] LPELR-58273(CA) and Section 26 of Armed Forces Act 2004, Section 284 (2) (b) of the Armed Forces Act and Paragrpah 03.01 (a) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 and stated that from the above, it is evident that the 2nd Defendant, has only acted in accordance with its governing laws and regulations, by refusing the application of the Claimant for voluntary retirement as same are in direct contravention of the extant laws which is applicable to all men and officers of the Nigerian Air Force (the 2nd Defendant) which so includes the Claimant. Hence, a Regular Combatant Officer who has not completed a minimum of 15 years of Commissioned Service has no right to voluntarily retire pursuant to the afore stated Laws. The extant provision of the Armed Forces Act and the HTACOS is by no way at variance with the provisions of the Constitution, as they are created by the Constitution itself that establishes the Armed Forces of the Federation. That for instance, Section 217(1) of the 1999 Constitution (as Amended) empowers the National Assembly to make laws for the Armed Forces in that regard. He also referred the Court to Section 218 (4) of the 1999 Constitution (as Amended). He contended that needless to mention at this juncture that there was no part of the Claimant’s originating processes or the documents attached, where he established that he was unlawfully denied the right to voluntary resignation without just cause. He is mainly asserting that the Defendants refused his application for voluntary retirement. However, this refusal was in strict compliance with the applicable laws, which clearly provides that a Regular Combatant Officer who has not completed a minimum of 15 years of Commissioned Service is ineligible for voluntary retirement. This is not borne out of any ill will against the Claimant as both the Claimant and the Defendants are strictly bound by the same laws.

 

  1. Counsel equally submitted that, assuming but not conceding that the Claimant alleged voluntary retirement is lawful, it is their firm position that Section 306 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) which the Claimant has erroneously found refuge in and which is the substratum or basis of the Claimant’s prayers before the Court, with respect, is not applicable to the Claimant, and he will urge the Court to so hold. It is also Counsel’s argument that the above constitutional provision relates to an elected office such as office of the President of the Federal Republic of Nigeria or any other elected public office (position) which is recognized by the Constitution of the Federal Republic of Nigeria as well as that which is occupied by way of an appointment or selection as the case may be into same, such as the Office of the Accountant General of the Federation, Chief Justice of Nigeria etc, created by the Constitution. Furthermore, a careful reading of the said Section 306 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) reveals clearly that the said Section relates to resignation and not retirement and that it is pertinent to note that exhibit C and exhibit F being the request for retirement of the Claimant dated 28 November, 2022, is headed “REQUEST FOR VOLUNTARY RETIREMENT: FLIGHT LIEUTENANT AKERELE”. Therefore he  urge the Court to ignore the Claimant’s attempt to surreptitiously come under Section 306 (1) & (2) of the Constitution by using the word resign or resignation in several paragraphs of the Affidavit in support of the Originating Summons as well as the Written Address in order to misdirect this Court. He submitted that the Claimant who was commissioned as a Regular Combatant cannot legally seek refuge under Section 306 (1) and (2) of the Constitution of the Federal Republic of Nigeria, as there is no office under the Constitution of the Federal Republic of Nigeria known as office of the Regular Combatant. Consequently, the entire argument of the Claimant’s Counsel, with respect, is misplaced, as same is not applicable to the instant case. He urge the Court to so hold. 

 

  1. Counsel argued that if the draftsman of the Constitution intended that Section 306 (1) & (2) of the Constitution should relate to retirement or voluntary retirement of anybody from any office including those not established by the Constitution, the word retire or retirement would have been used and the Constitution would have also stated that the provision is also applicable to offices not created by the Constitution. However, quite unfortunately for the Claimant, the said Section heavily relied upon relates to resignation from a public office such as those mentioned in paragraph 4.21 of this Written Address. Counsel submit that the express mention of one thing excludes others not mentioned as often expressed in the Latin maxim; expression unjus est exclusion, as was held in the recent case of Kyari v. FRN & Ors (2024) LPELR – 62768 (CA). What is more, it accords with best practices all over the world aimed at regulating the voluntary retirement of officers, in order not to make it an all-comers affair. 

 

  1. Again, Counsel place heavy reliance on the case of Okorie & Anor v. INEC & Ors [2024] LPELR-62967 (CA); wherein the learned Justice of the Court of Appeal determined whether the provisions of Section 306 (1) and (2) of the Constitution as regards resignation from office is applicable to offices not established under the Constitution and urge this Court to apply the above decision to the instant suit. Therefore, it is the submission of Counsel that the Claimant cannot bring a suit against the Defendant for carrying out actions in accordance to the stipulated laws governing them and that the Claimant is not entitled to the reliefs sought. In conclusion, Counsel stated that premised on the foregoing principles of law, and the facts set out before the Court, the Court is urged to dismiss this Suit for being grossly incompetent, and a waste of its precious time and that having drawn the attention of this Court to the fate of grossly incompetent Suits like the Claimant’s in the instant case, Counsel urge this court to take cognisance of these legal positions in deciding the fate of this case.

 

CLAIMANT’S REPLY ON POINT OF LAW

  1. This Reply on Points of Law is filed in response to the defendants’ Written Address and Counsel stated that it is trite law that the duty of Court is to ensure that justice is done between parties and that the Court should not allow any party deploy technicality to defeat substantial justice. He placed reliance on the case of Triquest Energy Ltd & Anor v FCMB Plc [2021] LPELR-52453 (CA).  Counsel submitted that no part or Section of the Armed Forces Act empowers the Nigerian Air Force to preclude, suspend or stop any officer from disengagement. He referred the Court to Section 26 of the Armed Forces Act and posited that flowing from the above, only the President has the power to make such regulation as to voluntary retirement or suspension of any personnel of the Armed Forces in Nigeria, and not the Defendants. It is the argument of Claimant’s Counsel that the Counsel to Defendants had cited the case of Amokedo v. IGP [2001] FWLR (Pt 33) 344 in their Written Address, a case whose facts are clearly distinguishable from the facts of this case before this Court. That the decision in Amokedo’s case was based specifically on the interpretation of Section 21(1) of the Pensions Act Cap 346 LFN 1990, which mandated a public officer willing to retire from the public service of the Federation to either give 3 (three) months’ notice of his intention to resign or pay 3 (three) months’ salary in lieu. In that case, the Appellant’s voluntary retirement was declared by the Supreme Court to be irregular because he had neither given the 3 (three) months’ notice or paid salary in lieu of notice. Also, the Appellant in that case demanded that the Nigeria Police Force expedite actions on the payment of his gratuities, pensions and other entitlements.

 

  1. Counsel equally posited that in Amokeodo’s case, the Court refused to uphold the voluntary retirement of the Appellant because his dismissal from the Nigeria Police Force was held to be valid based on Decree 17 of 1984 - Pensions Act Cap 346 LFN 1990 Laws of the Federation of Nigeria (1990). Counsel argued that the said Pensions Act was repealed in 2004 following the enactment of the Pensions Reform Act, 2004. That based on the Claimant’s case before this court, giving adequate notice of retirement or paying salary in lieu is not an issue as it was in Amokeodo’s case. Amokeodo’s case involved seeking payment of pensions and gratuities and other entitlements from the Nigeria Police Force, but in this case, the Claimant is not seeking pension, gratuity or any entitlement whatsoever from the Defendants. All he seeks is his right to disengage from the services of the Nigerian Air Force to be validated by this Honourable Court. However, the current law on military pensions in Nigeria is the Armed Forces Pensions Act, Cap A23 LFN 2004 and it differs radically from the repealed Decree 17 of 1984 - Pensions Act Cap 346 LFN 1990 on which the decision in Amokeodo’s case was based. As your Lordship will find, Section 3 of the Armed Forces Pensions Act shows its positive disposition for voluntary retirement and resignation without distinction. Also, Section 3 of the Armed Forces Pensions Act clearly supports claimant’s contention that the Claimant’s resignation or voluntary retirement cannot be impeded for allegedly not serving up to 15 years as wrongly contended by the Defendants as he is not claiming pensions nor gratuities and that the Claimant’s Exhibit B (Notification of Commission) dated 14th September, 2013 shows that the Claimant’s commission is regular combatant. Thus, Section 3 of the Armed Forces Pensions Act that allows or contemplates disengagement from military service by officers on regular commission without serving up to 15 years is applicable to the Claimant. He therefore submitted that the decision in Amokeodo’s case relied upon by the Defendants is not only distinguishable from the facts of the instant case, but is clearly inapplicable as the extant law on military pensions supports the Claimant’s case.

 

  1. According to Counsel the Defendants have not adduced any evidence that the Claimant is under a duty to serve for 15 years and in any case, any such requirement must be subjected to Section 306 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Besides, Counsel submitted that the issue of the Claimant not serving up to 15 (fifteen) years, even if it was made out (Counsel submit that it has not been made out) will only relate to an action for pension or for gratuity which is not the case before this Honourable Court. In Suit No: NICN/ABJ/259/2021 - Rtd Fg OFR Kabiru Olatunji Murtala v. Chief of Air Staff & Ors delivered by His Lordship Hon. Justice O. A. Obaseki-Osaghae on the 30th day of May, 2022, this Honourable Court held that:

“The thing with the case law authorities is that the payment of pension is contingent on the claimant having fulfilled all conditions enabling such payment. For instance, the claimant must have satisfied the Court that he is of pensionable age, the fact of having attained 15 years of service not being sufficient. All through the affidavit in support of the originating summons, the claimant did not indicate his age as to show this court that he is of pensionable age, a prerequisite to recovery under the pension law. However, section 3(2) (c) of the Pensions Act Cap 346 LFN 1990 provides that an officer retiring under section 3(1), if he is required to retire after fifteen years’ qualifying service pursuant to the provisions of section 3(1)(c) to (h), he shall be entitled to pensions immediately on retirement, notwithstanding that he has not attained the age of forty-five years.

By this provision, the requirement of age (at least 45 years as enjoined by Achimugu v. Minister of FCT) as per paragraph 3 of the affidavit in support is that the claimant fell short of the exact 15 years required, the internal memo of the defendant dated 1st September 2015 put the years of service of the claimant with the Defendant itself rounded off the period and made it 15 years. What this means is that if the claimant were to be an employee in the public service of the federation, he would have appropriately been entitled to his claims as per the Pensions Act cap 346 LFN 1990 since this was the law applicable at the time his employment was terminated by the defendant in 2000. But I held earlier that he is not such an employee.”

  1. Counsel argued that worthy of note is the fact that the Claimant in his two letters to the Defendants dated 28th November, 2022 and 17th May, 2023 expressed his intention to disengage permanently from the services of the 2nd Defendant in a polite and respectful language. The language of his letters does not derogate from his explicitly expressed intention to no longer be in the services of the Nigeria Air force. Consequently, this Court is urged to examine the intention of the Claimant as expressed in his letters and to examine the substance of the letters in construing the intention of Section 306 of the 1999 Constitution. He submitted that what is important is the substance of the letter and not the form and that this is expressed in the equitable maxim- equity looks at the substance rather than the form. Counsel’s argument is simply that equity looks to the spirit and not to the form. It looks to the intention of the parties and not to the words. He relied on the case of Parkin v. Thorold (1852) 16 Beav 59. He urges the Court not to be entrapped by the technical argument and semantical distinction between the words resignation and retirement sought to be made by the Defendants’ Counsel, as the Claimant has by his Exhibit C expressed a clear intention to disengage from the service of the 2nd Defendant when he wrote the letter. He referred the Court to Paragraph 2 of his letter to the Defendants dated 28th November, 2022 and the case of Onukwubiri & Anor v. Ibeakanma & Ors [2014] LPELR-23804 (CA) (Pp. 88-89paras. C-C) and urged this Court to note that the Court of Appeal in the above case construed the 1st Respondent’s intention to disengage from the service of the Nigerian Customs Service which he expressed through a letter of voluntary retirement as amounting to resignation and being within the contemplation of Section 306 of the 1999 Constitution. The learned counsel for the Defendants has contended that voluntary retirement does not come under Section 306 of the Constitution because the word “retire” is not used in the provision and that the express mention of one thing is the exclusion of others. Our response is that unlike ordinary Acts of parliament, the attitude of our Courts to the interpretation of the provisions of the Constitution is to adopt a liberal and purposive interpretation that best serves and achieves the intention of the framers of the Constitution. Counsel refer this Court to the celebrated case of Nafiu Rabiu Vs. The State (1980) 8-11 SC 130. 

 

  1. The learned Counsel for the Defendants is urging this Court to interpret the provisions of Section 306 of the Constitution in the narrower sense. He urge this Court to decline that invitation to follow the principle espoused by His Lordship, KAYODE ESO by interpreting the provision in the wider sense in order to attain the purpose for which it was enacted. He placed reliance on the case of Attorney General of Bendel State V. Attorney General of the Federation (1981) 10 SC 1 and submitted that the spirit and purpose of Section 306 is that public servants or public officers are at liberty to exit or disengage from public service at their volition.

 

  1. In furtherance to the above Counsel submits humbly that the meaning of the word “resignation” according to the Black Law Dictionary 10th Edition page 1503 is thus: “A formal notification of relinquishing an office or position; an official announcement that one has decided to leave one’s job or organization, often in the form of a written statement”. Counsel emphasize that the Claimant in this case is not seeking any benefit whatsoever, whether as pension or gratuity, from the Nigerian Air Force on account of his service. The Claimant has only disengaged from service simpliciter and that to contend, as the Defendants have done in this case, that a military officer who has expressed a clear intention to permanently disengage from service cannot voluntarily retire or resign, and must continue in active military duty, will amount to nothing short of forced labour which is prohibited under Sections 34(1) (c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). That granted that two exceptions are made for forced labour under the said Section 34 of the Constitution for the Armed Forces. The first exception is expressly limited to “any labour required of members of the Armed Forces of the Federation or the Nigeria Police Force in pursuance of their duties as such”. The second exception is where “such compulsory national service in the Armed Forces of the Federation as may be prescribed by an Act of the National Assembly”. From the foregoing, two points are explicit, namely: Compulsory labour by members of the Armed Forces can only be required in pursuance of their duties as such. This simply implies that compulsory labour is only applicable to serving members of the Armed Forces as part of their routine assignments. Officers like the Claimant, who have disengaged from the Armed Forces, cannot be subjected to forced labour as they no longer have “duties as such” to perform for the Armed Forces. The second exception does not arise at all as it envisages conscription of members of the public into the Armed Forces pursuant to an Act of the National Assembly where for example the country is at war. There is nothing in Section 26 of the Armed Forces Act relied upon by the Defendants that prohibits the Claimant from resigning his commission or appointment when he has not served up to 15 years.

 

  1. On the argument raised in paragraph 3.23 of the Defendants’ written address Counsel stated that appointment into a university is not a Constitutional matter because a university is not established by the Constitution. The case of Okorie v. INEC mentioned without the citation by the Defendants’ Counsel does not apply to the instant case. It is trite law that a case is only an authority for what it decides. Counsel urges this Court to adopt the position in previous cases where it was held that the Armed Forces is a creation of the Constitution based on the combined reading and interpretation of Sections 217 and 318 (1) (h) of the 1999 Constitution. This Court has in a chain of judicial decisions, ruled that Section 306 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) applies to members of the Armed Forces, including the Nigerian Air Force. He placed reliance on the following cases decided by this Court: Suit NO: NICN/ABJ/117/ 2023: Elkanah John Garang v. The Chief of Air Staff/& Anor delivered on 29th February 2024 by His Lordship, Hon. Justice O. Y. Anuwe; Suit No: NICN/ABJ/364/2024-Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & Anor delivered by His Lordship Hon. Justice B.B Kanyip, PhD on the 4th of March, 2025; Suit No: NICN/ABJ/18/2025- Dr Michael Ikuesan v The Chief of Naval Staff & Anor decided on the 8th of May, 2025 by His Lordship Hon. Justice B.B Kanyip, PhD.

 

  1. Again, the Defendants have equally cited the case of Chief of Naval Staff vs. Okpanachi [2022] LPELR-58273(CA), a legal authority whose facts do not also fit to the circumstances of the case at hand. In Okpanachi’s case, the issue before the Court was based on the refusal to nominate the Plaintiff/Respondent to attend a course in another college and refusal to promote the Respondent despite being eligible for promotion. In Okpanachi’s case, the Appellant’s retirement was based on grounds of run-out-date which arose from the failure of the Chief of Naval staff and the Navy Board to promote and nominate him for senior staff… the Court ordered his reinstatement. Section 306 of the Constitution was not a subject of interpretation in Okpanachi’s case. In any event, Counsel restate the point that the issue of saying the Claimant has not served up to 15 (fifteen) years would only be relevant if the Claimant was seeking pension and other entitlements for which there could be pre-conditions and the Claimant herein is not seeking any of those entitlements

 

  1. It is the position of Counsel that the Defendants have not made a case that the Claimant has to serve for 15 (fifteen) years. Assuming without conceding that they have done so, the question is - what does the Claimant stand to gain by not serving within the 15-years stipulated time frame? He stands the risk of losing his pension which the incentive for public officers who have stayed up to certain number of years. For any law that can be considered reasonably justified in a democratic society, it could not have been the intention of its draftsmen that employees be compelled to continue working with an employer with an organization, institution or body at gun point. In the world of work as well as under labour/employment law, voluntary retirement is understood only in terms of the employee taking the decision to resign unhindered by the employer. A voluntary retirement is the act of the employee, not the employers. He referred the Court to the case of James Adekunle Owulade v. Nigerian Agip Co. Ltd unreported Suit No. NICN/LA/41/2012 Judgement delivered on 12th July, 2016 and urge the Court to discountenance the submissions in the Defendants’ Written Address dated 8th April, 2025 and grant the reliefs sought by the Claimant.

COURT’S DECISION

  1. I have with keen interest taken my time to read and understand the evidence and the written submissions of counsels in this case. To my mind the issue that is apparent for determination is:

Whether the claimant has on the preponderance of evidence have discharge the burden of proof on him to warrant this court to enter judgment in his favour.  

  1. 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. 

 

  1. 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. The Claimant by the affidavit evidence before this Court was a commissioned officer with the Nigeria Air Force. Claimant was commissioned on the 14/09/2013 but decided to resigned as shown exhibit C and F from the service for personal and family reasons as explained in Paragraphs 6 – 16 of the affidavits in support of the Originating Summons. However as seen in Paragraph 22 of the affidavit in support, the 1st Defendant through a letter dated 2nd March, 2023 with reference number NAF/324/AIRSEC rejected Claimant’s resignation as shown in Exhibit I. And as a follow up to the refusal to approve Claimant resignation, Claimant was declared absent without leave (AWOL) vide exhibit K and if found loitering Claimant is to be apprehended and brought under military escort. 

 

  1. The crux of the instant case is whether Claimant has the right to voluntary resign from the services of the Nigeria Air Force. It is the submission of the Claimant that by virtue of Section 306 (1) and (2) of the 1999 CFRN, Claimant being a Public Servant has the right to resign with or without a reason. Counsel to Claimant further argued that in fact Claimant resignation letter once served on the Defendant and it is acknowledged, the resignation becomes effective even without approval. However, the Defendants contended that by virtue of Item 01.10 of the Harmonised Terms and Conditions of Service 2017 this subsidiary legislation becomes the document that contains the regulations governing conditions of service in the Armed Forces of Nigeria and therefore binding on members of the Force. And by Item 03:10 HTACOS an officer can only be eligible to apply for retirement after serving for at least 15 years. Defendant further argued that from the provision of Section 306 of 1999 CFRN, the claimant does not fall within the Public Officers or offices established by the Constitution.

 

  1. Let us give context to the subject that seems so germane for the determination of this suit. The question as to what is resignation was considered by the Court of Appeal. And the Court did give a clear and unambiguous meaning of the word resignation in the case of Dogara v. PDP & Ors [2024] LPELR-61810(CA) (PP. 23 Paras. D) where it held thus;

"To resign on the other hand, is to give up, to relinquish ownership of and or to quit a position. The word "resignation" is defined in Black's Law Dictionary, Ninth Edition, page 1424 to mean the act or an instance of surrendering or relinquishing an office, right or claim. Thus, it is a formal notification of relinquishing from an office or position."  

Also, Section 306 (1) and (2) of the 1999 Constitution as amended on providing on the subject of resignation in the public service 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 to whom it is addressed or by any person authorized by that authority or person to receive it.”

  1. From the foregoing the Claimant by Exhibit C and F voluntarily decided to resign from the service of the 2nd Defendant. The Claimant decided on his own volition “to quit a position” and or relinquish his office. The right to resign especially in labour jurisprudence is a fundamental right of an employee. Among a plethora of authorities decided by this court, the case of Dr. Elkanah John v. Chief of Air Staff & Nigerian Air Force Unreported Suit No. NICN/ABJ/117/2023 (2024) captured the position of this Court when Anuwe J. held that an employee has an unconstrained constitutional right to resign under Section 306, and no special approval is required for the resignation to take effect. The Court went further to held that once the resignation letter is received by the relevant authority, it is effective, and any law or regulation requiring approval (e.g., under the Armed Forces Act) is inconsistent with the Constitution and thus void. From the foregoing, it follows that employer’s rejection of a resignation by an employee is unconstitutional and a breach of the employee’s fundamental rights under the 1999 Constitution. From the letters of section 306, it connotes that resignation, once properly communicated, cannot be nullified by an employer’s refusal to accept it.

 

  1. As to whether the 2nd Defendant is an office created by the Constitution, I find no difficulty in accepting this line of submission in view of the clear provision of section 217 of the 1999 Constitution as amended. For anyone to argue otherwise connotes an ignorance of the provisions of the Constitution. In the case at hand it is in evidence that claimant submitted a resignation and defendants rejected vide Exhibit I. The reasons advanced has to do with noncompliance with the HTACOS 2017 which provides for 15 years in service for an officer to be eligible to apply. As can be seen the provisions of section 306 (1) and (2) of the Constitution, the provision is to the effect that any person who is either appointed or elected or selected to any office established by the Constitution he 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 such authority 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. 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 state that even the ILO Convention on Concerning Forced or Compulsory Labour, 1930 (No. 29), a Convention ratified by Nigeria on 17 October, 1960 can even be seen in the law’s treatment of disengagement from work, where 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. See Adefemi v. Abegunde [2004] 15 NWLR (Pt 895) 1, and Abayomi Adesunbo Adetoro v. Access Bank Plc Unreported Suit No: NICN/LA/293/2013, the judgment of which was delivered on 23/02/2016. 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, the judgment of which was delivered on 21st February 2017. For the defendants to even issue Exhibit I, is as good as importing the Unity Clause into the conduct of its affairs with its employees. The clause is a clause in the condition of service where employer reserves the right to reject the resignation of an employee as was held in the case of Ineh Monday Mgbeti v. Unity Bank Plc Unreported Suit No. NICN/LA/98/2014. The Court have frown at this attitude of employers. 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 this attitude of employers targeted at employees 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 the argument of learned Counsel to the Defendant insisting that Claimant has to serve for 15 years in compliance with Item 03:10 HTACOS before disengaging as a “professional envy” and which is in conflict with Section 306 of the 1999 Constitution. Also, by the provision of Section 1 (3) of the 1999 Constitution, Item 03:10 HTACOS 2017 is null and void to the extent of its inconsistency. I therefore find that Claimant resignation was done in line with the provision of Section 306 of the Constitution and is therefore valid and effective from the date of receipt and acknowledgement. This I so hold. 
  2. Defendant’s Counsel in his submission also argued that the two letters submitted by the Claimant (Exhibit C, E and F) makes reference to voluntary retirement and not resignation. In the words of Counsel to Defendants:

 

It is pertinent to note that EXHIBIT C and EXHIBIT F being the request for retirement of the Claimant dated 28 November, 2022, is headed “REQUEST FOR VOLUNTARY RETIREMENT: FLIGHT LIEUTENANT AKERELE” … However, quite unfortunately for the Claimant, the said Section heavily relied upon relates to resignation from a public office... 

 

  1. In his response Claimant’s Counsel submitted that the letter should be seen and understood from its content as the letter of resignation is explained in detail in paragraphs 6 – 16 of the affidavits in support of the Originating Summons. Counsel stated that what is material is the substance of the letters written by the Claimant to the Defendants and not the form. Counsel humbly urged this Court not to be entrapped by the technical argument and semantical distinction between the words “resignation” and “retirement” sought to be made by the Defendants’.

 

  1. I must say that the argument of Learned Counsel to the Defendant on face value makes a lot of sense. Exhibits C, E and F are all entitled “REQUEST FOR VOLUNTARY RETIREMENT: FLIGHT LIEUTENANT AKERELE.” From all indications the Claimant seems to be applying for voluntary retirement if exhibit C, D and F are anything to go by. At the risk of repeating myself, it is trite that resignation is a Constitutional right under Section 306 applicable to public offices established by the Constitution, and its validity does not depend on employer’s approval. This Court has consistently upheld the right to resign as absolute under Section 306, striking down attempts by employers to impose additional conditions. Voluntary retirement therefore may resemble resignation in intent, but the jurisprudence of this Court treats it as a distinct process due to its regulation by specific rules. In cases where an employee opts for voluntary retirement, the National Industrial Court may draw parallels with resignation if the employee’s intent is to exit voluntarily, but the Court still considers the applicable statutory or contractual framework in several of its pages. 

 

  1. The question that still remain unanswered is whether the Claimant intent was to voluntary retire and not to resign. I have taken my time to go through exhibits E, F, G, H, I and J and I discovered that the Defendants themselves referred to the letters as letter of voluntary disengagement or voluntary discharge. In trying to understand the intent of the letter, Paragraph 2 of Claimant’s letters to the Defendants dated 28th November, 2022 and the letter dated 17/05/2023 which both provides inter alia:

 

“…Presently, I am certain that I no longer have any interest in pursuing a career in the Armed Forces and therefore I am firmly persuaded that seeking fulfilment in other civilian engagements is the right course of action. More so, the sudden demise of my father about a year ago has placed a harrowing mental strain and responsibilities on me which would be impossible to effectively handle within the confines of military service. I therefore wish to honourably and formally disengage from the Service having served consciously and meritoriously.

 

  1. Claimant has strenuously argued that I should examine the intention of the Claimant as expressed in the body of the letters to the Defendant and examine the substance of the letters in construing the intention of Section 306 of the constitution. Counsel to claimant urged this court to look at the substance and not the form of the letter. I am inclined to toe the line of the Claimant in view of the content of the two letters, the way and manner it was administratively treated by the Defendants in Exhibits E, F, G, H, I and J. For this Court to consider the letters submitted by Claimant as not covered by Section 306 of the Constitution will result to an injustice to the Claimant.   In the case of Nafiu Rabiu v. The State [1980] 8-11 SC 130 the Supreme Court held that:

“Where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the Court should always lean to the broader interpretation…”

  1. I am ready to read Section 306 by giving it a broader interpretation. The Court of Appeal faced with a similar situation had cause to interpret a letter of voluntary retirement as one for resignation under Section 306 of the Constitution. In the case of Onukwubiri & Anor v. Ibeakanma & Ors [2014] LPELR-23804 (CA) (Pp. 88-89paras. C-C), the Court of Appeal per Agube J.C.A held as follows:

“If by Exhibit C which is the letter/Application for voluntary Retirement, the said Application was received on the 14th day of July, 2000, by the Customs Service, then by the provision of Section 306(2) of the Constitution of the Federal Republic of Nigeria, 1999, which is the grundnorm of this nation that:

“(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 authorized by that authority or person to received it.’

Then the 1st Respondent was deemed to have resigned on 14th July, 2000.”

  1. This Court being a Court of both law and equity more often than not had to pierce the veil to look to the substance rather than the form so as to do justice to parties before it. ROMILY M.R succinctly put it in Parkin v. Thorold (1852) 16 Beav 59 in the following words:

"Courts of equity make a distinction in all cases between that which is a matter of substance and that which is a matter of form; and if they found by insisting on the form, the substance will be defeated, they hold it to be inequitable to allow a person to insist on such form, and thereby defeat the substance."

  1. In view of the foregoing, I find the argument put forward by Counsel to Defendants as not plausible and is accordingly hereby discountenanced. Therefore, to answer the question put forward in the Originating Summons, I answer question 1 and 2 in the negative. It therefore follows that reliefs 1, 2, 3, 4 and 5 hereby succeeds.

 

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

 

 

                    …………………………...

                                                                       Hon. Justice E. D. Subilim

                                                                                       JUDGE