IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HONOURABLE JUSTICE O. Y. ANUWE Dated: 29th February 2024 SUIT NO: NICN/ABJ/117/2023 Between: Elkanah John Garang Claimant And 1. The Chief of Air Staff 2. The Nigerian Air Force Defendants Representation: M.A. Danmama for the Claimant Madu Joe-Kyari Gadzama with Sarah Atumga and Victor Adetunji Oni for the Defendants JUDGMENT In an originating summons filed by the claimant on 8th May 2023, the claimant sought the determination of the following questions: 1. Whether or not the plaintiff being a public officer is entitled to voluntary resignation from service. 2. Whether or not the plaintiff’s resignation letter is effective from the date of its issuance/receipt. Upon the determination of the above questions in the affirmative, the claimant sought the following reliefs: 1. A declaration that the Plaintiff is entitled to voluntarily exit from the service of the defendants. 2. A declaration that the Plaintiff's resignation letter dated 22nd July 2019 is valid and effective. 3. An Order deeming the letter of resignation dated 22nd July 2019 and acknowledged by the defendants on 24th July 2019 and 29th August 2019 respectively as valid and effective. 4. An Order setting aside any subsequent action purportedly carried out by the defendants against the Plaintiff having regard to his resignation. 5. An Order of this Court restraining the Defendants from carrying out any action being an offshoot of the resignation from the date of its issuance by the Plaintiff. 6. And any further orders this Court may deem fit to make in the circumstances of this case. CLAIMANT’S CASE The affidavit in support of the Originating Summons was deposed to by the claimant. He said he is a medical practitioner and was commissioned into the 2nd defendant vide a Direct Short Service Course on 4th July 2014. Upon his commission, he was posted to 461 NAF Hospital Kaduna and he served at the NAF Hospital for 5 years. Within the period of his service, he was never found wanting or faced any disciplinary action and he was diligent and dedicated in service. He decided to resign from service and he accordingly wrote and forwarded a letter of resignation to the defendants on 22nd July 2019. The letter was received by the defendants through the Commander of his unit. The defendants acknowledged his resignation letter in the letters dated 24th July 2019 and 29th August 2019. The claimant contended that by his resignation notice, the defendants cannot turn around to complain about his resignation or to declare that he is still in the service of the defendants. His solicitors served a Pre-action Notice on the defendants on 31st January 2022. Attached to the affidavit and marked exhibits A, B, C and D respectively are the claimant’s resignation letter, the defendants’ letters dated 24th July 2019 and 29th August 2019 and the pre-action notice. In the written address in support of the Originating Summons, the claimant submitted two issues for determination to wit: 1. Whether the claimant being a pubic officer is entitled to voluntarily resign from the service which he voluntarily joined. 2. Whether having regard to the claimant’s resignation letter, viz-a-viz, the acknowledgement letters, the claimant is still in the service of the defendants. On issue 1, it was submitted by the learned counsel for the claimant that section 306 of the 1999 Constitution of Federal Republic of Nigeria (as amended) allows 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. Counsel submitted that this constitutional provision applies to all public officers or offices established by the constitution as has been reiterated in the case of ONUKWUBIRI vs. IBEAKANMA (2014) LPELR-23804 (CA). It was submitted that the 2nd defendant is created in section 217 of the 1999 Constitution Federal Republic of Nigeria (as amended) and the claimant was a public officer serving in the 2nd defendant. Thus, being a public officer, the claimant has a constitutional right to resign. Counsel cited the cases of IBRAHIM vs. ABDULLAHI (2019) LPELR-48984(SC) and YESUFU vs. GOVERNMENT OF EDO STATE (2021) LPELR-3520(SC). Counsel argued further that any law prohibiting or refusing the claimant from enjoying his right of resignation is, in view of the provisions of section 1 (3) of the 1999 Constitution (as amended), inconsistent with the provisions of the Constitution and as such null and void to the extent of such inconsistency. On the superiority of the Constitution, counsel for the claimant cited the cases of A.G. BENDEL STATE vs. A.G FEDERATION & ORS (1981) LPELR-605(SC); F.R.N. vs. OSAHON (2006) LPELR-3174(SC) and SARAKI vs. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40013(SC). Counsel concluded on issue one that the defendants cannot hide under any legislature to refuse the claimant his right of resignation. To do otherwise is tantamount to a disregard and disobedience to the clear provisions of the Constitution. On issue 2, counsel for the claimant submitted that on 22nd July 2019, the claimant notified the defendants of his voluntary exit from service vide a letter of resignation addressed to the 1st defendant and forwarded to the authority saddled with such responsibility. The resignation letter was duly received and acknowledged by the defendants, which act automatically gives effect to the claimant’s notice of resignation. Counsel submitted that once a letter of resignation is received, the resignation takes effect from the date of receipt of the letter and it does not require an acceptance or any form of approval to make it effective. The cases of SUNDAY vs. OLUGBENGA (2008) LPELR-4995 (CA); W.A.E.C vs. OSHIONEBO (2006) 12 NWLR (Pt.994) 258 and ONUKWUBIRI vs. IBEAKANMA (supra) were relied on. DEFENCE The defendants filed a counter affidavit to the Originating Summons on 20th September 2023. It was deposed to by Tajudeen Ayeni, a Litigation Secretary in the law firm of the counsel representing the Defendants in this suit. He averred that the Claimant is medical practitioner who was commissioned into the 2nd defendant on 4th July 2014. The claimant served at the 461 NAF Hospital Kaduna for 5 years then on 22nd July 2019 he wrote and forwarded a letter of retirement to the commander of his unit. The letter of retirement was acknowledged and received to be considered by the relevant and appropriate authorities in line with the provisions of the Armed Forces Act, 2004. While the Claimant's application for voluntary retirement/discharge was being considered by the appropriate authorities, the Claimant exited the service of the 2nd defendant unofficially, contrary to laid down procedures as dictated by the Armed Forces Act, 2004. The claimant is presently considered as a deserter. The claimant instituted this suit as a part of his illegitimate efforts to voluntarily exit the service of the Defendants. It was further averred that in filing this suit, the Claimant did not comply with the provisions of the Armed Forces Act with respect to voluntary retirement/discharge from the Nigerian Air Force. The Armed Forces of Nigeria, which comprises of the Nigerian Army, Nigerian Air Force, and the Nigerian Navy, are governed primarily by the provisions of the Armed Forces Act, 2004. Whilst the Armed Forces of Nigeria are also subject to military and civil laws, the Courts have established that the body of law which regulates the activities of members of the Armed Forces, to wit; enlistment, promotion, transfer, command and discipline is the Armed Forces Act, 2004. Although members of the Armed Forces are referred to as public officers in the public service of the federation, they are primarily regulated by the provisions of the Armed Forces Act, 2004. The Claimant is duty bound to abide strictly by their laws, rules, and regulations of the Nigerian Air Force with respect to voluntary retirement/discharge. The Claimant ought to have obtained the final approval of the Chief of Air Staff of the Nigerian Air Force before exiting the service of the Nigerian Air Force but the claimant did not show from the processes filed that such approval was sought and/or obtained. The claimant also did not exhaust the available remedies provided under the Armed Forces Act, 2004 if he felt aggrieved with the delay in approving his application for voluntary retirement/discharge by the Chief of Air Staff. Counsel for the defendants submitted two issues for determination in the written address in support of the counter affidavit to the Originating Summons. The issues are: 1. Whether or not the Claimant as a Public officer who is a member of the Nigeria Armed Forces is bound by the provisions and regulations of the Armed Forces Act 2004 and the Harmonized Terms and Conditions of Service for Soldiers/Ratings/Airmen (HTACOS) 2017 (Revised) with respect to his proposed resignation/voluntary discharge. 2. Whether or not the Claimant satisfactorily complied with the requirements of the Armed Forces Act, 2004 with respect to his purported voluntary resignation and discharge? On issue 1, it was submitted that by the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Claimant, though a public officer, is subject to service laws first before civil laws. It was argued that while the defendants do not concede that the Claimant retains the right to voluntary resign or discharge from the Nigerian Air Force, any such purported resignation must be done in line with the extant rule or provisions of law in that regard. The Armed Forces of Nigeria, which comprises of the Nigerian Army, Nigerian Air Force, and the Nigerian Navy are governed by the provisions of the Armed Forces Act, 2004. Section 28 of the Armed Forces Act empowers the President of the Federal Republic of Nigeria to make regulations generally for the purpose of giving effect to the provision and mandate of the Armed Forces. It was in furtherance of this provision that the Harmonized Terms and Condition of Service for Soldiers/Ratings/Airmen (HTACOS) 2017 (Revised) was made to give effect to the provisions of the Armed Forces Act. The Harmonized Terms and Conditions of Service for Soldiers/Ratings/Airmen contain regulations governing conditions of service for Soldiers/Ratings/Airmen in the Armed Forces of Nigeria but it does not apply to the claimant being a commissioned officer. Counsel for the defendants agreed that the Armed Forces of Nigeria is a public office to which its members and/or officers are public officers in the service of the Federation. It was contended that although members of the Armed Forces are referred to as public officers in the public service of the federation, they are primarily regulated by the provisions of the Armed Forces Act which is the body of law that regulates persons subject to the service law. This is not in any way at variance with the provisions of the Constitution as it is the Constitution itself that establishes the Armed Forces of the Federation in section 217 and empowers the National Assembly to make laws for the Armed Forces in that regard. The effect of the provisions of sections 217 and 218 of the 1999 Constitution is that the regulation and maintenance of the Nigerian Armed Forces is to be dependent on the enactment of an Act by the National Assembly for that specific purpose. Learned counsel for the defendants submitted further that the Courts have consistently reiterated that the Armed Forces Act is a binding Act which regulates primarily, the persons subject to service law. Counsel referred to IBRAHIM vs. NIGERIAN ARMY (2015) LPELR-24596(CA); CHIEF OF NAVAL STAFF vs. OKPANACHI (2022) LPELR-58273(CA) and submitted that the Claimant, being subject to the service law and the Armed Forces Act, ought to have tendered his resignation in strict accordance with the provisions of the laws and regulations he is subject to. In concluding issue one, it was submitted that contrary to the Claimant's presupposition that his resignation which was purportedly in line with Section 306(2) of the Constitution was valid, the combined reading of Section 217(1), (2) and 218(4) of the Constitution provide that members of the Armed Forces, though public officers, are to be governed and regulated by the provisions of the Armed Forces Act 2004 and the regulations made hereunder. On issue 2, it was argued by learned counsel for the defendants that, with particular respect to the Armed Forces of Nigeria as created by Section 217 of the 1999 Constitution of the Federal Republic of Nigeria, the Courts have held that the Armed Forces of Nigeria must abide strictly by their laws, rules, and regulations as the case may be. Counsel relied on the case of CHIEF OF NAVAL STAFF vs. OKPANACHI (Supra) and submitted that the Claimant is obligated by law to comply with the requirements of the provisions of the Armed Forces Act with respect to his voluntary discharge or retirement. But the Claimant did not comply with the provisions of the Armed Forces Act, 2004 on voluntary retirement and/or discharge from the Nigerian Air Force. It was submitted that although the office of the claimant is one of a public nature but as a military personnel/officer under the Armed Forces, he is subject first to military laws before any other law as the intendment of the Constitution was to the effect that the Act that would be enacted by the National Assembly for the Armed Forces shall guide and regulate their operations. As a result, any attempt to voluntary discharge or retire from the Armed Forces ought to be in line with the Armed Forces Act and not under the provisions of the 1999 Constitution. Counsel also argued that section 32 of the Armed Forces Act, 2004 has made clear provisions as to what is required before a serving officer of the Armed Forces can voluntarily resign or discharge from the Nigerian Air Force. It was submitted that the interpretation of the provisions of section 32 of the Armed Forces Act show that a serving member of the Armed Forces, although entirely within his rights to voluntary discharge from whichever one of the forces he is under, however, the discharge is subject to it being authorized by order of the service chief concerned. In the case of the claimant, the Chief of Air Staff must authorize the discharge. In other words, the claimant ought to have obtained an order from the Chief of Air Staff confirming his voluntary resignation. Counsel cited the cases of MOHAMMED vs. NIGERIAN ARMY COUNCIL (2021) LPELR-53390(CA); SHAKS vs. CHIEF OF AIR STAFF (2018) LPELR 45277(CA). In the absence of obtaining a certificate of discharge implies that the claimant’s resignation was not accepted and that makes the claimant a deserter. The claimant filed a further affidavit on 20th October 2023 wherein the claimant admitted the averments in paragraphs 3(c) of the defendants' counter affidavit only to the extent that the defendants lack the vires to alter the procedure for resignation provided in the Constitution and further aver that he did not flout any legal procedure of resignation in line with his Constitutional right. Only the members or officers of the Armed Forces are regulated by the provisions of the Armed Forces Act 2004 but he, by virtue of his resignation letter dated 22nd July 2019, is a retired officer of the Armed Forces and no longer subject to the Armed Forces Act. The procedure for retirement contained in the Armed Forces Act is inconsistent with the procedure laid down by the 1999 Constitution and he is not mandated to obtain the approval of the Chief of Air Staff. The submission of counsel for the claimant in the reply address is not different from the arguments in support of the Originating Summons. NOTICE OF PRELIMINARY OBJECTION By a notice of preliminary objection filed on 20th September 2023, the defendants sought an order striking out the suit for want of jurisdiction and the grounds upon which the order was sought are as follows: i. By the provision of Section 178(1) of the Armed Forces Act, where an officer thinks himself wronged in any matter by a superior officer or authority, he is required to make an application first to his commanding officer and if upon making such application, it becomes apparent to him that he did not get the redress he is entitled, he may make a complaint with respect to that matter to the Forces Council. ii. The provision of Section 178(3) of the Armed Forces Act, 2004 is clear on the fact that an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under this Act before embarking on any other action. iii. The Claimant is an officer of the Nigerian Armed Forces, and as such, must seek redress in accordance with the provisions of the Armed Forces Act and ought to have exhausted the administrative remedies available to him under the Armed Forces Act before embarking on any other action. iv. The court lacks jurisdiction to entertain the suit as presently constituted. The NPO is supported with affidavit and a written address. The defendants also filed a further affidavit and a reply address on 5th December 2023. In the affidavits in support of the NPO, deposed to by Tajudeen Ayeni, litigation clerk in J-K Gadzama LLP, the contention of the defendants is that the Armed Forces Act laid administrative procedure for be followed by officers who seek redress and such procedure must be exhausted before embarking on any other action. The claimant, being an officer in the Nigerian Air Force, failed to satisfy the requirements of the Armed Forces Act before instituting this suit. In the written address in support of the NPO, one issue was raised, which is: Whether the Claimant, an officer of the Nigeria Air Force, can competently institute this action without exhausting the administrative reliefs as stipulated by the Armed Forces Act. In arguing the issue, learned counsel for the defendants submitted that members of the Armed Forces, which comprise of the Nigeria Army, Nigerian Air Force, and Nigerian Navy, are bound by the provisions of the Armed Forces Act, 2004 first before any other Statute or Law. In other words, the provisions of the Armed Forces Act, 2004 must be strictly adhered to before an officer can purport to rely on another Statute or Law. Counsel relied on the case of CHIEF OF NAVAL STAFF vs. OKPANACHI (2022) LPELR-58273(CA). The Armed Forces Act is the primary enactment which regulates the activities of persons in the employ of the Armed Forces, and as such, has laid down special procedures for redress, which must be followed by any officer who feels wronged. It was submitted that this suit filed by the Claimant is in breach of the provisions of the Armed Forces Act, 2004 and the same ought to be struck out It was further submitted that the Claimant, being in the employ of the Nigerian Air Force, is subject to service law and he cannot institute an action for redress of a wrong he feels has been done to him without first complying with the provisions of the Armed Forces Act. The provision of Section 178 of the Armed Forces Act clearly spells out the manner which an officer seeking redress ought to follow before pursuing remedies outside of the Act. By the provision, the aggrieved officer is to first make an application to his commanding officer. If however, for any reason, he feels or believes that he has not gotten the redress he seeks, he is required to then make a complaint to the Forces Council. Then in subsection (3) of section 178 of the Armed Forces Act, it was provided that an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under the section before embarking on any other action. It was submitted that the import of the provisions of Section 178(1) and (3) is to the effect of constituting a condition precedent that must be satisfied before seeking redress in any other manner. Counsel for the defendants argued further that in this case, the Claimant did not make any attempt in any way to seek redress from his commanding officer and made no applications to the Forces Council. Such failure of the Claimant in not complying with the condition precedent stipulated by Sections 178(1) and (3) of the Armed Force Act constitute a bar to the Claimant’s action to seek redress in Court and precludes the Claimant from instituting this present suit. Counsel relied on the Court of Appeal decision in GARBA vs. NIGERIAN ARMY (2019) LPELR-47390(CA) and argued that the claimant, having failed to satisfy the conditions or requirements for bringing an action for redress of an alleged wrong done to him, prevents this court from exercising jurisdiction on the case. Counsel referred to the locus classicus of MADUKOLU vs. NKEMDILIM (1962) LPELR-24023(SC). It was submitted in conclusion that this suit ought to be struck out by this Court for want of jurisdiction. In opposing the NPO, the claimant filed a counter affidavit with a written address on 20th October 2023. The counter affidavit was deposed to by the claimant. He averred that the provisions of the Armed Forces Act 2004 is only applicable to the officers of the Armed Forces and not the retired officers and since he has resigned from the service of the Defendants on 22nd July 2019, the provisions of the Armed Forces Act lo longer applies to him. He also stated that he is not subject to the service law of the defendants having voluntarily exited from the service in exercise of his constitutional right, as such, he is not expected to exhaust the administrative procedure laid down in the Armed Forces Act. In the written address in support of the counter affidavit, counsel for the claimant formulated this issue for determination in the NPO: Whether the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are construed subject to the provisions of the Armed Forces Act or any Subsidiary Legislation. It was submitted by counsel for the claimant that the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) cannot be construed subject to subordinate statutes or subsidiary legislations. Constitutional provisions stand above all enactments, statutes or laws and its provisions cannot be made subject to any other Act or enactments. Where any inconsistency or conflict exists between the provisions of the constitution and any other Act, that conflict is resolved in favor of the 1999 Constitution, and to the extent of such conflict or inconsistency, that provision of the Act becomes null and void by effect of section 1(3) of the 1999 Constitution. The case of INEC vs. MUSA (2003) LPELR-24 927 (SC) and A.G BENDEL STATE vs. A.G FEDERATION & ORS (1981) LPELR 605 (SC) were cited in support. Since the right and procedure of resignation are constitutional, it cannot be altered or taken away by the Armed Forces Act or any statute. It was submitted further that the claimant’s resignation was in accordance with section 306 of the 1999 Constitution. It was further submitted that section 178(1) & (3) of the Armed Forces Act applies only to the officers in the service of the Armed Forces and not to the claimant who had exited from the service since 22nd July 2019. Counsel contended alternatively that even it is assumed that the Act applies to the claimant, he has exhausted the administrative procedures when he first applied to his commanding officer as shown in Exhibit P1. Counsel proceeded to distinguish the instant case from the case of IBRAHIM vs. NIGERIA ARMY (supra) cited by counsel for the defendants, and submitted that the case of IBRAHIM vs. NIGERIA ARMY is not applicable to the instant suit. DECISION As a rule, I am expected to determine the Notice of Preliminary Objection (NPO) of the defendants first before considering the main suit. However, it is observed that the ground of the NPO is on an issue in which parties have joined issues in the main suit. Also, I have seen that the determination of the Originating Summons has an effect on the success or otherwise of the NPO. In other words, both the main suit and the NPO are intertwined such that it is not feasible to determine them separately. In my view, I will consider both the main case and the NPO at once and give a single decision. The claimant, a medical doctor, was commissioned into the 2nd defendant on 4th July 2014. The claimant served in the 461 NAF Hospital Kaduna of the 2nd defendant for a period of 5 years until by a letter dated 22nd July 2019, the claimant tendered his resignation notice to the defendants. The resignation letter was received by the Commander of the claimant’s unit. The letter was received and acknowledged by the defendants in the letters dated 24th July 2019 and 29th August 2019. These facts are not in dispute in this case. The claimant’s resignation letter, addressed to the Chief of Air Staff, is exhibit A and it reads thus: RESIGNATION FROM NIGERIAN AIR FORCE- OFFICER FLYING OFFICER EJ GARANG (NAF/3869) I have the honour to humbly request your permission to voluntarily resign from the Nigerian Air Force with effect from 20th September 2019. I was commissioned into the Nigerian Air Force as a member of Direct Short Service Course 23 on 4th July 2014 and I have served the country honorably in this capacity. I wish to relinquish my commission to seek further professional and personal development. Sir, I am most grateful for the privilege given to me by the Nigerian Air Force to offer service to my beloved country. The lessons and experience are priceless. I humbly appeal to you to graciously grant my request sir. Signed EJ GARANG Flying Officer Medical Officer Exhibits B and C of the affidavit in support of the Originating Summons are letters written by officers of the defendants and they disclose that the defendants received the claimant’s resignation letter and requests were made for further action on the claimant’s resignation. Exhibit B is a letter forwarding the claimant’s resignation letter to the HQ ATC for further directives on the said resignation, while Exhibit C is to the effect that the Claimant has been duly counselled, and HQ ATC has no objection to the resignation. Now, the dispute, as can be seen from the averment in paragraphs 12 and 13 of the affidavit in support of the Originating Summons is that the defendants, after receiving the claimant’s resignation letter, have turned around to complain about the claimant’s resignation and have declared that the claimant is still in service. It is for this reason the claimant wants this court to determine in this suit whether having tendered a resignation letter, he can still be considered to be in the service of the defendants. In arguing the case of the claimant, counsel for the claimant relied on the provisions of section 306 [1] and [2] of the Constitution of Federal Republic of Nigeria 1999 [as amended] which provides 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. The above provisions of the Constitution are clear and unambiguous. To simplify the provision, the import is 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 the person authorized to receive it. When the Constitution provides that the resignation take 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 or on the date indicated in the resignation letter. This provision of the Constitution is specific and applicable to offices established by the Constitution. The claimant is said to have been commissioned into the 2nd defendant on 4th July 2014. Being commissioned, in simple English, means the claimant was employed by the 2nd defendant. Section 217[1] of the CFRN 1999 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. In view of this provision, 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 CFRN 1999 to resign from the employment at any time he desired. In the written address of the defendants, learned counsel for the defendants referred to the provisions of section 32 of the Armed Forces Act and argued that the claimant’s resignation or discharge from the 2nd defendant ought to be in accordance with the said provisions of the Armed Forces Act which provide as follows: (1)“Unless otherwise prescribed by this Act, if an enlisted person becomes entitled to be discharged, he shall be discharged with all convenient speed; but until discharged, he shall remain subject to service law under this Act. (2)Except in pursuance of a sentence of a court-martial under this Act, an enlisted person shall not be discharged unless his discharge has been authorized by order of the respective Service Chief in accordance with regulations made under this Part of this Act. (3)An enlisted person shall be given on his discharge a certificate of discharge containing such particulars as may be prescribed, provided that, an enlisted person who is discharged within six months of the date of attestation shall not be entitled to receive a certificate of discharge”. Counsel for the defendants went further to contend that although members of the Armed Forces are referred to as public officers in the public service of the Federation, they are primarily regulated by the provisions of the Armed Forces Act. To this extent, counsel argued that as a military officer under the Armed Forces, the claimant is subject first to military laws before any other law, as such, any attempt to voluntary discharge or retire from the Armed Forces ought to be in line with the Armed Forces Act and not under the provisions of the 1999 Constitution. In other words, the contention of the defendants is that because the claimant was a military officer, only the Armed Forces Act regulates his employment and not the Constitution. What the defendants have said, in clear terms, is that the provisions of section 32 of the Armed Forces Act prevail or take precedence over the provision of section 306 [1] and [2] of the CFRN 1999 as it concerns the resignation of the claimant from the service of the 2nd defendant. First of all, section 32 of the Armed Forces Act mentioned “discharge” of an enlisted person. It is with respect to the said “discharge” that the authorization of the concerned Service Chief is required to validate the discharge. The case of the claimant is one of voluntary resignation. The defendants have not shown that the definition of “discharge”, as used in the Act, include voluntary resignation. More importantly, I am troubled to hear counsel for the defendants argue, very seriously for that matter, that provisions of a statute, which is the Armed Forces Act, supersede the provisions of the Constitution. The law, as we know it, and as has been emphasized by the courts in several decisions, based on the explicit provisions of section 1[1] and [3] of the CFRN 1999, is that the provisions of the Constitution is superior to provisions of statutes and where there is conflict, the provisions of the Constitution shall prevail. In SARAKI vs. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR 40013(SC), the Supreme Court reiterated the supremacy of the Constitution to statutes in these words: “Wherever and whenever the Constitution speaks, any provision of an Act/Statute, on the same subject matter, must remain silent”. Similarly, in MUSA vs. INEC (2002) LPELR-11119 (CA), it was held thus; “Of importance in the issues raised is the Supremacy of our Nigerian Constitution over any other law or enactment, and where a right has been conferred by the Constitution, it cannot be taken away by any other statutory provisions except the Constitution itself, and any law so made is void to the extent of its inconsistency”. In ARGUNGU vs. ARGUNGU 2010 All FWLR Pt. 510 681 at 795, it was held as follows- “By virtue of section 1[1] of the 1999 Constitution, the provisions of the Constitution are superior to every provision made in any Act or Law and are binding on and must be observed by and respected by all persons and authorities in Nigeria. All other legislations, as it were, take their hierarchy from the provisions of the Constitution… It is well settled that where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way directly or indirectly unless the Constitution itself, as an attribute of its supremacy, expressly so authorize”. Also, in ANKPA vs. MAIKARFI [2010] All FWLR [Pt. 506] 1977 at 1997, it was held thus, “It is the law that no provision of any enactment is capable of expanding or subtracting from the elaborate provisions of the Constitution on any subject matter dealt with by the Constitution. This is because the Constitution is the grundnorm. In Attorney-General, Abia State V. Attorney-General Federation [2002] FWLR [PT. 101] 149, Kutigi JSC put it succinctly as follows: “Where the provision in an Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provisions, then the new provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative. The same fate will befall any provision of an Act which seeks to enlarge, curtail or alter any existing provision of the Constitution. The provision of provisions will be treated as unconstitutional and therefore null and void”. In view of the superiority of the Constitution over statutes, the courts have rather applied the Constitution and not the statute to determine the case to which they both apply. See MUSA vs. INEC [supra]. Accordingly, it is my view that section 306 CFRN 1999 is the applicable provision under which to determine the validity of the claimant’s resignation. The provision of section 306[1] and [2] of the Constitutional appears to be the source of the prevailing principles on resignation. It is settled law that every person employed or appointed into an employment or contract of service, whether common law employment or statutory employment, has the right to resign from the employment. It is also the law that tendering a letter of resignation by an employee effectively and automatically put an end to the employment on the date indicated in the resignation letter. Whether or not the employer accepts the resignation, once the letter is received, resignation becomes effective. See the Supreme Court decision in IBRAHIM vs. ABDALLAH [2019] 17 NWLR [Pt. 1701] 293 at 315. See also WAEC vs. OSHIONEBO [2006] 12 NWLR [Pt. 994] 258 at 272; ADEFEMI vs. ABEGUNDE [2004] 15 NWLR [Pt. 895] 1 at 28. It was held in ABEKHE vs. ALPHA MERCHANT BANK PLC [2017] All FWLR [Pt. 914] 971 at 1002 thus: “The general rule is that every employee has the right to resign from his employment/appointment whenever he desires and the resignation takes effect as indicated in the notice of resignation or as may be stipulated in the terms and conditions of the employment. In law, the resignation would take effect even when the employer did not expressly accept it since there is no need for the employer to reply the letter of resignation before it becomes effective”. From the foregoing, it is clear that the claimant has an unconstrained right to resign from his appointment with the 2nd defendant. No special approval is needed for the exercise of a person’s constitutional right to resign. Irrespective of the wordings of a letter of resignation, it effectively conveys the claimant’s intention to resign. Therefore, when the claimant tendered a resignation letter on 22nd July 2019, he properly exercised his right in section 306 of the CFRN 1999 to resign his appointment with the 2nd defendant. Again, the claimant’s resignation took effect from the date he indicated in the letter, being 20th September 2019. The overall implication is that after tendering the letter of resignation and it had become effective, the defendants do not have any right thereafter to say they did not accept the resignation or to still consider the claimant to still be in the service of the 2nd defendant. Let me also point out that the defendants never indicated that they were averse to the claimant’s resignation; especially in the light of Exhibits B and C, and also the fact that no communication was ever made to the Claimant rejecting his resignation. Even if the defendants did, which they did not, it is clear from the foregoing, that they had no right to do so. The claimant voluntarily joined the service and he has the right to voluntarily resign from the service. 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 was his desire to exit the service and he had accordingly given notice of his resignation. This is the point the issue raised in the defendants NPO comes into the picture for consideration. It is the contention of the defendants that section 178 of the Armed Forces Act 2004 laid down an administrative procedure and remedy for addressing internal grievances of officer of the Armed Forces and an officer who feels he has been wronged in any matter shall first exhaust the administrative remedies available to him under the Act before embarking on any other action. It is on the basis of these provisions of the Armed Forces Act the defendants assert that the claimant’s suit should be struck out because the claimant did not exhaust the internal administrative remedy before instituting this action in court. Counsel for the defendants cited the case of GARBA vs. NIGERIAN ARMY [supra] to support the argument. In view of the nature of arguments advanced in support of the NPO, the defendants appear to have misunderstood the claimant’s case. Let me explain that the claimant is not seeking redress for any wrong done to him while he was in service. He is simply seeking this court to determine whether his resignation was valid and effective from the date he tendered the resignation. Going by the case of the claimant, he has not instituted a suit in respect of any wrong done to him while in service. I have also examined the provisions of section 178 of the Armed Forces Act and it is observed that the administrative grievance resolution mechanism provided therein is applicable to serving officers. The procedure is invoked when a serving officer is aggrieved by the act of a superior officer or by the military authorities. In this case, the claimant tendered his letter of resignation on 22nd July 2019 notifying the defendants of his intention to voluntarily resign from service with effect from 20th September 2019. I have held earlier in this judgment that the claimant’s resignation took effect from the date he indicated to exit the service. From 20th September 2019, the claimant was no longer in the service of the defendants. The implication is that he was also no longer subject to the Armed Forces Act or the service laws and regulations. Therefore, after the resignation had become effective, the claimant was thence not under any obligation to comply with the provisions of the Armed Forces Act with respect to the internal administrative remedy provided in the Act. A similar situation was considered by the Court of Appeal in NWANKWO vs. NIGERIAN ARMY [2021] LPELR-56218[CA] as to whether an officer compulsorily retired from service can still be considered to still be in service and subject to comply with section 178 of the Armed Forces Act. It was held by the Court of Appeal at pages 26 and 27 of the judgment that the definition of “officer” in section 291 of the Armed Forces Act means a serving officer or officer in active service. Thus, an officer who has retired or resigned from service does not come within the definition of “officer” used in section 178 of the Armed Forces Act. In view of the decision of the Court of Appeal in NWANKWO vs. NIGERIAN ARMY, I hold that the claimant, having resigned from service before instituting this suit, is no longer an officer in the service of the 2nd defendant and he is not under any obligation to comply with the provisions of section 178 of the Armed Forces Act before approaching the court. Again, the cause of action of the claimant arose after he had resigned his appointment. His complaint is that after he had tendered his letter of resignation and it was acknowledged by the defendants, the defendants still considered him to be in service. In as much as the claimant did not report any grievance when he was still in service and up to 20th September 2019, he cannot be expected to comply with the provisions of the Armed Forces Act with respect to the dispute between him and the defendants on his resignation which dispute arose after his resignation had become effective. This is the point where the authority of GARBA vs. NIGERIAN ARMY, cited in the written address in support of the NPO, does not apply to this case. The authority was not decided on the issue of resignation of an officer from service of the Armed Forces. The claimant had effectively resigned from the service of the defendants on 20th September 2019. The provision of the Armed Forces Act on internal administrative remedy was no longer applicable to him from that moment. Consequently, I find that there is no merit in the NPO. It is dismissed accordingly. With regard to the questions submitted for determination in the Originating Summons, I resolve them in the affirmative. I also find merit in the claims sought by the claimant in the Originating Summons. Accordingly, the reliefs sought by the claimant are granted. For the avoidance of doubt, it is ordered as follows: 1. It is declared that the claimant is entitled to voluntarily exit from the service of the defendants 2. It also declared that the claimant’s resignation letter dated 22nd July 2019 is valid and effective. 3. An order is made setting aside any subsequent action carried out by the defendants against the claimant with regard to his resignation. 4. The defendants are restrained perpetually from carrying out any action, which is an offshoot of the claimant’s resignation, against the claimant. Parties shall bear their respective costs. Judgment is entered accordingly. …………………………………………………… Hon. Justice O. Y. Anuwe Judge F 28-11-2025 28-11-2025