IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

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

DATE: 8 MAY 2025                                                                  SUIT NO. NICN/ABJ/18/2025 BETWEEN

Dr Michael Ikuesan                                          -                                                        Claimant

AND

1.  The Chief of Naval Staff

2.  The Nigerian Navy                                        -                                                    Defendants

REPRESENTATION

Debo Stephen Ikuesan, for the claimant.

A. S. Amao, with T. J. Ayerite, for the defendants.

JUDGMENT

INTRODUCTION

1.   The claimant filed this suit on 22 January 2025 vide an originating summons. The claimant submitted two questions for determination, namely:

(1)     WHETHER or not, the plaintiff being a public officer is entitled to voluntary resignation from the defendants’ service.

(2)   WHETHER or not, the plaintiff’s resignation letter is effective from the date of its receipt and a discharge certificate ought to be issued given that the defendants immediately stopped payment of salaries and allowances to the plaintiff.

2.   If the answers to the above questions are in the affirmative, the claimant seeks the following reliefs/declarations:

(1)   A DECLARATION that the Plaintiff is entitled to voluntarily exit the service of the defendants.

(2)  A DECLARATION that the Plaintiff’s resignation letter dated 7th December, 2017 is valid and effective.

(3)     AN ORDER deeming the letter of resignation dated 7th December, 2017 and acknowledged by the defendants on 8th December, 2017 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 Honourable 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)   AN ORDER compelling the Defendants to issue discharge certificate to the Plaintiff pursuant to his resignation.

(7)   AND ANY FURTHER ORDER/ORDERS this Honourable Court may deem fit to make in the circumstances of this case.

3.  The grounds upon which the reliefs are sought are:

(i)    The Plaintiff was enlisted into the service of the 2nd Defendant on the 10th day of July, 2006 with service number-Rating OSMA N5265.

(ii)      Upon conclusion of his training at Onne, the Plaintiff was deployed to NNS Enyimirin as an ordinary seaman.

(iii)   The Plaintiff was thereafter drafted for a basic medical qualifying course at Nigerian Navy School of Health Sciences, Offa which the Plaintiff completed on the 14th December, 2007.

(iv)    The Plaintiff was then deployed to serve at the Western naval command, Armed Forces Programme on Aids Control (AFPAC) and subsequently deployed to Headquarters logistics command, Oghara Delta State. He was at Oghara when he faced the Sponsorship board and a six-year educational self-sponsorship was granted to him.

(v)  The plaintiff served the Nigerian Navy for about eleven (11) years.

(vi)   The Plaintiff issued a resignation letter dated 7th December 2017 same was served and duly acknowledged by the defendants on the 8th December, 2017.

(vii)    The Defendants immediately stopped payment of salaries and allowances to the plaintiff consequent upon his said resignation.

(viii)      The Plaintiff, upon realizing that no discharge certificate was given by the defendants, further instructed his lawyers to issue a formal request letter dated 15th July, 2024.

(ix)    That despite the Plaintiff’s due diligence while in service, his letter of request for discharge certificate was responded to.

4.   In support of the originating summons is an affidavit (sworn to by the claimant) with four exhibits attached (Exhibits MK1, MK2, MK3 and MK4) and a written address.

5.   In reaction, the defendants filed a joint counter-affidavit (sworn to by Elizabeth Moroson, a legal practitioner in the Law Firm of counsel to the defendants) with Exhibit NNA attached, and a written address. A further counter-affidavit sworn to by Elsa Thomas Angbashim who is not the deponent of the main counter-affidavit was rejected by this Court in a Bench ruling of 9 April 2025, and so was discarded by the Court.

6.    The claimant reacted to the defence processes by filing a further and better affidavit in response to the defendants’ counter-affidavit (with Exhibit MK5 attached), as well as a reply on points of law.

7.  The Court had 20 March 2025 raised the issue of the defendants’ joint counter-affidavit being sworn to by a counsel in the Law Firm of the defence counsel, and the deposing counsel getting

her briefing on the supporting affidavit of the claimant from the Legal Officer at the Nigerian Naval Headquarters. Parties were then asked to address the Court during trial on the competence of the joint counter-affidavit as sworn to be a counsel in the Law Firm of the defence counsel and not by a staff of the defendants.

8.  While the defendants filed a written address on 4 April 2025 in answer to this issue raised by the Court, the claimant addressed it in his reply on points of law.

THE CASE BEFORE THE COURT

9.  The case before the Court, which the defendants agree with, is that the claimant is a healthcare practitioner but was enlisted in the Nigerian Navy on 10 July 2006 as an ordinary seaman (Rating) having gone through training at the Nigerian Navy Basic Training School (NNBS), Onne, River State. Upon his graduation and qualification as an Optometrist, the claimant, having already served the 2nd defendant for about eleven (11) years, desired and attempted to be commissioned as an officer but was prevented. The claimant thereafter voluntarily resigned from service of the defendants vide a resignation letter dated 7 December 2017, same was duly acknowledged by the defendants on 8 December 2017. The defendants immediately stopped payment of all salaries and allowances to the claimant consequent upon his resignation. Notwithstanding the issuance and acknowledgment of the resignation letter, the defendants turned around and refused to issue the claimant the requisite discharge certificate — the claimant’s lawyers having first formally requested for the discharge certificate without any response from the defendants.

THE SUBMISSIONS OF THE CLAIMANT

10.  The claimant submitted two issues for determination, namely:

(a)   Whether the plaintiff being a public officer is entitled to voluntarily resign from the service which he voluntarily joined.

(b)       Whether having regard to the plaintiff’s resignation letter, viz-a-viz the acknowledgement and stoppage of salaries, the plaintiff is entitled to be issued discharge certificate by the defendants.

11.  On issue (a), the claimant answered in the affirmative, and urged the Court to so hold. To the claimant, the 1999 Constitution enjoins and 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 any person authorised by that authority or person to receive it, citing section 306 of the 1999 Constitution and Onukwubiri & anor v. Ibeakanma & ors [2014] LPELR-23894(CA). That section 306 of the 1999 Constitution applies to all public officers in as much as it relates to an office established by the Constitution. That the claimant in this case was a public officer serving under the organization of the defendants, and it is not in doubt that the defendants, particularly the 2nd defendant, are a creation of the Nigerian Constitution and equipped, maintained and funded by the Federal Government, referring to section 217 of the 1999 Constitution.

12.   The claimant cited Apama v. State [1982] LPELR–523(SC) and PDP v. INEC & ors [1999] LPELR-2485(SC) as authority for the proposition that to make the office a public office, the pay must come out of National and not local funds, and the public office is created for the benefit of the public. That the claimant being a public officer has a constitutional right to put up resignation as provided above, same backed by law, as indicated Ibrahim v. Abdullahi & ors [2019] LPELR-48984(SC) and Yesufu v. Government of Edo State & ors [2021] LPELR-3520(SC).

13.    Furthermore, that assuming without conceding that there exists any law prohibiting or refusing the claimant or any public officer from enjoying his right of resignation, that law is outrightly inconsistent with the 1999 Constitution, and to the extent of such inconsistency, null and void, citing section 1 of the 1999 Constitution, AG Bendel State v. AG Federation & ors [1981] LPELR-605(SC), FRN v. Osahon & ors [2006] LPELR-3174(SC) and Saraki v. FRN

[2016] LPELR-40013(SC). That the defendants cannot hide under any legislation to refuse the claimant his right of resignation — this, if done, is tantamount to an affront, disregard and disobedience to the clear provisions of the Constitution, urging the Court to so hold.

14.  Regarding issue (b), the claimant also answered in the affirmative. To the claimant, he had on 7 December 2017 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. That the said resignation letter was duly received and acknowledged by the defendants on 8 December 2017. That consequent upon his resignation, the defendants immediately stopped all payment of salaries and allowances to the claimant. That the actions of the defendants automatically give effect to the claimant’s notice of resignation, referring to Sunday v. Olugbenga & ors [2008] LPELR-4995(CA). Furthermore, that once a letter of resignation is received, it does not require an acceptance or any form of approval to make it effective, citing Sunday v. Olugbenga & ors (supra) and WAEC v. Oshionebo [2006] 12 NWLR (Pt. 994) 258.

15.   The claimant went on that Exhibits MK3 and MK4, which are the letters of resignation, acknowledgement and reminder of same by the claimant preponderate and evidently indicate the voluntary retirement of the claimant from the service of the defendants, urging the Court to so hold, and citing Onukwubiri & anor v. Ibeakanma & ors (supra). That it is even not necessary for the person to whom the letter of resignation is addressed to reply that the resignation has been accepted.

16.  In conclusion, the claimant urged the Court to grant all his reliefs.

THE SUBMISSIONS OF THE DEFENDANTS

17.  The defendants submitted three issues for determination, namely:

(a)  Whether the Honourable Court has jurisdiction to entertain this case.

(b)    Whether the action is properly constituted by commencing the same by way of Originating Summons procedure.

(c)  Whether the plaintiff deserves the reliefs he seek (sic) in this action.

18.   For issue (a), the defendants submitted that this Court lacks the jurisdiction to entertain the entire matter given section 251(1)(p), (q) and (r) of the 1999 Constitution. That this point arose from the exercise of powers and duties, in the administration or the management and control of the Federal Government or its agencies and subject to the provisions of the 1999 Constitution in so far as it affects the Federal Government and its agencies, seeking a declaration and injunction affecting the validity of its executive and administrative action or decision. That “the combined effect of section 251 and paragraph (5) is to the fact that the Federal High Court has exclusive jurisdiction over matters listed in the Act of the National Assembly so being within the jurisdiction of the Federal High Court whether or not the Act stated that the jurisdiction is exclusive”, referring to NEPA v. Edengbenro & ors [2002] 18 NWLR (Pt. 798) 79 and Olufola v. Unilorin [2005] 123 LRCN 217.

19.   The defendants went on that in Ayeni v. University of Ilorin [2000] 6 NWLR (Pt. 644) 290, Onnoghen JCA (as he then was) held that the proviso to section 251(1)(p), (q) and (r) does not say that the State High Court shall have jurisdiction in matters touching and concerning the Federal Government or its agencies where the action is founded on “any enactment, law or equity”. That the proviso is simply saying that every cause of action against the Federal Government or its agencies, irrespective of its nature, shall be heard and determined exclusively in the Federal High Court and as such this Court lacks jurisdiction to entertain this case, urging the Court to dismiss the action having properly and effectively joined issues.

20.   The defendants then submitted that the originating summons as supported by an affidavit of twenty paragraphs only does not disclose or demonstrate how the claimant’s civil rights or obligations have been affected by the defendants; or that the defendants are/were in breach of any instrument or agreement of service (i.e. Military Service in the Federal Republic of Nigeria).

21.   The defendants also submitted that paragraphs 12 to 19 of the supporting affidavit, “which appear to be of any relevance to the questions and reliefs formulated by the claimant to the suit”, failed to disclose or demonstrate, sufficiently and effectively, which instrument is to be interpreted by the Court or that have been affected, for interpretation, referring to Order 3 Rule 3 of the Rules of Court. That on commencement of an action by originating summons under this Rule, the aim of an action being commenced by originating summons is to simplify and speed up procedure since it envisaged that there is no serious dispute as to the facts in the case, because what is in dispute is the construction of an enactment or instrument made under any law upon which the claimant is basing his right to a declaration or a claim in his favour. Where there is a serious dispute as to the facts, then a writ of summons must be issued under the Rules.

22.    That the present case is based essentially on whether the claimant is entitled to have a discharge certificate, having allegedly resigned from the service of the defendants. That on the face of the motion papers and in the supporting affidavit, the claimant has not cited any law or instrument where he is entitled to a discharge certificate upon having voluntarily resigned from

the service(s) of the defendants for interpretation by the Court, citing AG Adamawa State v. AGF

[2006] 1 MJSC 1 at 30 and Ashayi v. APC [2023] 18 NWRL (Pt. 1916) 297 at 332 - 333.

23.     Referring to paragraphs 3.1 to 3.20 of the claimant’s written address, the defendants submitted that the submissions therein are not valid for consideration given that what the parties are contesting is not an issue of resignation of the claimant from the services of the defendants, but his entitlement to discharge certificate. The defendants then prayed the Court to discountenance the claimant’s submissions and hold that the submissions are misconceived. Also that the Court should dismiss the entire suit for having been wrongly and improperly constituted and commenced as per this action.

24.  It is the further submission of the defendants that the claimant failed to prove his entitlement to a “discharge certificate”. That a claimant should prove his case through credible evidence and not rely on the weakness of the defendant’s case, even where the defendant did not lead any evidence, citing Care Products (Nig.) Ltd v. Bazza [2004] 3 NWLR (Pt. 841) 582 at 605 - 606. That the onus of providing a particular fact is fixed by the pleadings, citing Gbafe v. Gbafe [1996] 5 NWLR (Pt. 455) 417 at 432.

25.    To the defendants, the claimant has not exhibited any document to enable the Court to ascertain the nature of the certificate the claimant is entitled to and how and who is under obligation to issue it. That it is a trite law, that it is not within the province of a court of law to fill in the gaps for litigant’s case, neither can a judge act on conjectures. That the claimant is under obligation to present document at the trial stage to explain and to establish by plausible evidence the roof of his rights. That having commenced the action by way of originating summons, it is only the statute that vests the rights that should be made available by the claimant, and the same should be interpreted in respect to such rights. That none of such instrument is exhibited by the claimant in this case, most especially where the nature of interest is not shown ex-facie in the supporting affidavit as in this case.

26.    The defendants continued that they showed on the face of the counter-affidavit that the claimant in putting the purported letter of resignation had been in breach of Article 05.12(d) of the Armed Forces of Nigeria “Harmonised Terms and Conditions of Service”. That notwithstanding the main objectives of training and education, generally, Article 05.12(d) provides thus:

For a soldier, rating or airmen to be sponsored for a course of 2 years and above he must. a.

b.

c.

d. Have at least 5 years of service left after the completion of the course.

27.  That going by the foregoing provisions of the Article (supra), the claimant then a rating was not eligible or qualified for voluntary retirement until after 5 year from completion of the course,

and hence he was declared a deserter on 23/12/17. That this necessitating the stoppage of his pay in January 2018, referring to Exhibit NNA, the signal to that effect.

28.    In conclusion, it is the defendants’ submission that the claimant’s case locks merit and, therefore, the Court should dismiss it in the interest of justice.

THE DEFENDANTS’ SUBMISSIONS ON THE COMPETENCE OF THEIR COUNTER- AFFIDAVIT

29.   The Court had observed that the counter-affidavit filed by the defendants in response to the originating summons of the claimant was deposed to by a counsel in the office of the counsel to the defendants and on that note the Count directed counsel on both sides to address the Court on the competence of the counter-affidavit. In addressing this issue, the defendants submitted a lone issue for determination i.e. “Whether it is legally appropriate or proper for the Counsel to depose to the Counter-Affidavit of 14/03/25, in defence of the principal’s clients, on their behalf”.

30.  To the defendants, it appears that the point for discussion here is the competence of a lawyer to give evidence on behalf of his client. That the case at hand was commenced by way of originating summons, and that is by virtue of Order 3, Rules 16 and 17 of the National Industrial Court of Nigeria Rules of Civil procedure, which pre-supposes that the issues to be settled under originating summons is/are non-contentious in nature on the, and by virtue of Order 15, Rule 5, it behoves on the defendant to file his processes. That the “Rule did not state that a Counsel in the of the Defence’s Counsel is not eligible to depose to such Counter-Affidavit, in a matter that, ordinarily in not a contentions matter”. Furthermore, there is no direct provision in the Evidence Act, 2011 to debar counsel in a matter or a counsel in his office appearing in a case from giving evidence in it.

31.   On the basis of the foregoing, the defendants submitted that by the Rules of Court earlier alluded to or by the Evidence Act, “a Counsel is rendered incompetent from testifying as a witness for his client, but by virtue of Rule 20, of the 2007 Rules of Professional Conduct (RPC), the competence of a Counsel is subject to the Rules of common sense and of the etiquette of the profession”.

32.  That “based on the ethical consideration, Rule of the RPC, ordinarily prohibits Counsel from testifying in a matter in which he is appearing as Counsel, whether for his client or for the opposing party rules”, such as that:

(a)  The matter is an uncontested matter.

(b)    Matters of formality, there is no reason to believe that substantial evidence will be offered in opposition.

(c)   Matter relating to the “native” and value of legal service rendered by the Counsel or his firm to the client.

(d)   Matters in respect of which the Counsel refusal to act as Counsel to the client will work hardships because of the distinctive value of the law or his firm as lawyer in the particular case.

33.  The defendants relied on Ikeme v. Anakwe [2003] 10 NWLR (Pt. 829) 548 at 572, where “the Court of Appeal was of the position that Rule 10 of RPC, which is impari material with Rule 20 of the RPC that the prohibition of a Counsel from testifying basically, has nothing to do with the competence to testify as a witness merely because he is a Counsel in the matter”; and Elabanjo v. Tijari [1985] 5 NWLR 952, where “it was held by the Apex Court that as Counsel in the case did not suffer any of the disabilities in section 154(1) and (2) of their Evidence Act, which is impari materia with section 175(1) and (2) of the Evidence Act, 2011, the Counsel was held legally competent to testify”. That the prohibition therefore is a matter of ethics not on competency.

34.    The defendant also cited the learned Author, Dr T. A. Aguda in the book, “The Law of Evidence in Nigeria” 2nd Edition, Chapter 19 at page 273 where he was of the view that “where the facts deposed to are formal facts required to be established, to support a purely formal ex- perte application where there is no possibility of those facts being disputed. Even in the latter case, there would be little need for Counsel himself to swear the affidavit as some member of his staff could easily depose to the same facts as a matter of information and belief…”

35.   To the defendants, drawing from the opinion of Dr TA. Aguda (supra), the facts deposed to by the counsel in this case were based on information and belief in a matter that is mainly on interpretation of an instrument, which from all indication is not contentious in nature, urging the Court to consider the substance of the counter-affidavit placed before it in the defence of the defendants in this case.

36.   In conclusion, the defendants urged the Court to consider the competence of the deponent in their favour and to determine the substance of the originating summons, accordingly.

THE CLAIMANT’S REPLY ON POINTS OF LAW

37.    In replying on points of law (the reply on points of law was filed on 7 April 2025), the claimant drew attention to the fact that the defendants’ joint counter-affidavit was deposed to by a lawyer named Elizabeth Moroson whose source of information in the said counter-affidavit was undisclosed. That in the counter-affidavit, the deponent asserted that the claimant is a deserter and thus not entitled to the reliefs sought. But that the deponent did not challenge or dispute the fact of the defendants’ acknowledgement of the claimant’s resignation letter dated 7 December 2017. Instead, she asserted that he is not entitled to a discharge certificate.

38.     The claimant then submitted that the defendants’ joint counter-affidavit is offensive, unrelated and legally unusable for the determination of this suit. That the counter-affidavit deposed to by one Elizabeth Moroson, averred specific facts at paragraphs 4, 5, 6, 7, 8 and 9 thereof without stating its source and in flagrant violation of the Rules of Professional Conduct for Legal Practitioners. That paragraph 20(4) of the Rules of Professional Conduct for Legal Practitioners 2007 forbids a lawyer from being a witness for his client in a matter that is contentious. That the point is so basic and fundamental that the total disregard or lack of it by a

lawyer cannot be condoned, citing Akinlade v. INEC [2020] 17 NWLR (Pt. 1754) 439 at 457, where Eko, JSC had this to say:

The 2nd respondent’s motion was contentious. The appellants through one Mubarak Imam who describes himself as “a Legal Practitioner in the Law Firm of Ahmed Raji & Co; Counsel to the appellants” filed a Counter-Affidavit wherein they supposedly joined issues with the 2nd respondent on his objection to grounds 14 and 18. The Counter- affidavit, clearly res ipsa loquitor, offends paragraph 20(4) Rules of Professional Conduct for Legal Practitioners 2007 that forbids a lawyer from being a witness for his client in a matter that is contentious. The point is so basic and fundamental that the total disregard or lack of it by either this lawyer deponent or his principal in office cannot be condoned. Any conduct that is a direct affront or infringement of the express Rules of Professional Conduct can only be regarded as a conduct unbecoming. The counter- affidavit being so brazenly offensive shall be and is hereby discountenanced.

39.   To the claimant, the implication of the above quoted paragraph is a declaration that legal practitioners who are expected to be gentleman swore to affidavit containing inappropriate, unseemly, incorrect and wrong facts. That this is not right. Lawyers have to “stay” inserting themselves into litigations beyond their calling as legal practitioners. That the Court of Appeal upheld this position in the case of First Trustees (Nig.) Ltd & ors v Intels (Nig) Ltd & ors [2022] LPELR-57080(CA). The claimant then urged the Court to discountenance and dismiss the 10- paragraphed counter-affidavit by the defendants deposed to by Elizabeth Moroson, a Legal Practitioner in the law firm of Ayerite (T J) & Associates and the accompanying Exhibit NNA for being a brutal affront on paragraph 20(4) of the Rules of Professional Conduct for Legal Practitioners 2007.

40.   In respect of the defendant’s “purported Further Counter Affidavit deposed to by one Elsa Thomas Angbashim” (which the Court would discard on 9 April 2025), the claimant submitted that it is incompetent — it being unknown to the Rules of this Court. That no provision in the extant rules provides for a defendant to file a further counter-affidavit. That court proceedings are guided and delimited by the relevant rules of that court and the provisions therein are not cosmetic; more so as the purported further counter-affidavit draws strength and legitimacy from an incompetent joint counter-affidavit as the sole exhibit (Exhibit NNA) and the written address being relied upon by the defendants are attached only to the latter. That it is trite that an incompetent affidavit cannot sustain its attached exhibit. They must rise and fall together. The claimant then urged the Court to discountenance both the joint counter-affidavit and its accompanying exhibit.

41.     The claimant went on that the defendants half-heartedly attempted to challenge the jurisdiction of this Court quoting the suit as pertaining to “exercise of powers and duties in the administration or management and control of the Federal Government or its agencies” (emphasis is the claimant’s). To the claimant, the defendants are clearly misguided as to the position of the law on the jurisdiction of this Court. That in Anazodo v. Paz Meck Intertrade (Nig.) Ltd [2023] 10 NWLR (Pt. 1891) 1 SC at 20, His Lordship Kekere-Ekun, JSC (as he then

was) held that “notwithstanding the fact that an agency of the Federal Government is a party, the Court must also consider the subject matter of the suit to determine which Court as between the Federal High Court on the one hand and a State High Court or High Court of the Federal Capital Territory on the other, has jurisdiction to entertain the action”. That the fact that an agency of the Federal Government is a party to an action is not a magic wand to confer exclusive jurisdiction on the Federal High Court without more. That section 151(1) of the of the Constitution spells out in sub paragraphs (a) to (r) the specific areas in which exclusive jurisdiction has been conferred on the Federal High Court, citing Olayemi v. FHA [2023] 3 NWLR (Pt. 1872) 454

42.   To the claimant, the subject matter in the instant case can be gleaned as labour related from the face of the claimant’s affidavit in support of the originating summons particularly at paragraphs 5 to 18. That the question is: should this Court decline jurisdiction in a labour-related dispute simply because a Federal Government agency is involved? The claimant did not think so.

43.   That by the combined provisions of “Section 254(1)(a) of the Constitution and by Section 6 of the Third Alteration Act, 2010”, the National Industrial Court has exclusive jurisdiction in civil causes and matters relating to or connected with any labour, employment, trade unions, industrial relations, and matters arising from the workplace, the conditions of service including health, safety, welfare of labour, employee, worker and maters related thereto or incidental therewith, citing Pharmabase (Nig.) Ltd v. Olatokunbo [2020] 10 NWLR (Pt. 1732) 379 at 401 and Standard Chartered Bank v. Adegbite [2019] 1 NWLR (Pt. 1653) 348 at 353. That in the instant case, the subject matter is between an employee and a former employer for resolution of dispute as to the purport of his resignation letter and the consequential discharge certificate. That given the authorities referred to, it is crystal clear that this Court is invested with the requisite vires to adjudicate the subject matter of this suit.

44.     The claimant continued that assuming without conceding that the defendants have a cognizable counter-affidavit before this Court, then the defendants have no meaningful defence to the claimant’s case. And to drive home this point, the claimant reproduced the following provisions of the Armed Forces of Nigeria, Harmonized Terms and Conditions of Service 2017 (HTACOS):

Article 02.06. Initial Engagement. Initial engagement for all soldiers/rating/airmen shall be for a period of 10 years regular service after which the soldier/rating airman could voluntarily discharge.

Article 06.17. Disembarkation Leave. Any soldier/rating/airman who has been within or outside Nigeria on course or attachment for a continuous period as stated below may be granted disembarkation leave as follows:

(a)   Courses 3 - 6 months duration – 7 days

(b)   Courses above 6 months duration -14 days

(c)   1 year and above and PSO – 21 days

The soldier/rating/airman is entitled to single return fare

45.   To the claimant, certain facts are incontrovertible in this case as the parties are ad idem to wit:

(i)   the claimant was enlisted in 2006 (Exhibit MK1)

(ii)    the claimant was given a study sponsorship in 2012 which was to last for six years (Exhibit MK2)

(iii)       the claimant tendered a resignation letter in 2017, which the defendants acknowledged (Exhibit MK3)

(iv)    the claimant was in the 2nd defendant’s service for 11 years before his letter of resignation was issued.

46.  That it is the law that when a mode or procedure of doing a thing is provided under a statute, only that mode or manner of doing the act is acceptable as any other mode would run afoul of the law, citing Magaji v. Lado [2003] 14 NWLR (Pt. 1905) 435 SC at 441. That the Armed Forces of Nigeria “Harmonised Terms and Conditions of Servicer” cited by the defendants cannot inure to their benefit as the condition precedent to activating its application was not satisfied. That it is in evidence, that the claimant’s study leave was for 6 years (2012 - 2018) and the said period had not completed before being recalled. It is also on record that the mandatory “2-weeks disembarkation leave” required before resumption was not afforded the claimant before being abruptly recalled. In fact, Article 06.17C stipulates 21 days but the Signal (Exhibit MK5) stated 2 weeks, yet none of it was complied with. That the requisite DTA or single return fare was also refused and when the claimant asked, he was accused of attempting to create a money-making scheme. That it is, therefore, crystal clear that the 2nd defendant acted in breach of the same Armed Forces of Nigeria “Harmonized Terms and Condition of Service” ab initio and cannot turn around to claim a right under the self-same law.

47.   The claimant went on that worthy of note is that the said Article 05.12(d) merely stipulates the preconditions that an applicant for self-sponsorship must meet before being awarded. That the fact that Exhibit MK2 was issued already dispenses with any consideration of that provision. That the claimant clearly satisfied the preconditions hence his sponsorship. Any reference to this provision is thus belated as it is already overtaken by events.

48.  Flowing from the foregoing, the claimant urged the Court to discountenance the defendants’s argument on desertion having been raised in flagrant error and misapplication of law.

49.     The claimant proceeded that it is also apposite to quickly state that the mode of commencement of an action is stipulated by the rules of court. That in the instant case, originating summons was adopted to essentially interpret the purport of the claimant’s letter of resignation dated 7 December 2017 in view of section 306 of the 1999 Constitution. That Order 3 Rule 3 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 stipulates that civil proceedings that may be commenced by way of originating summons include matters relating principally to the interpretation of any constitution, enactment, agreements, or any instrument relating to employment, labour, and industrial relations in respect of which the court

had jurisdiction by virtue of the provisions of section 254C of the 1999 Constitution or by any Act or law in force in Nigeria.

50.   To the claimant, perhaps the question needs to be asked: what is an instrument? That the Black’s Law Dictionary (9th edition) defines instrument as a written legal document that defines rights, duties, entitlements, or liabilities, such as a contract, will, promissory note, or share certificate – an instrument seems to embrace contracts deeds, statutes, wills, orders in council, orders, warrants, schemes, letters patent, rules, regulations bye-laws, whether in writing or in print, or partly or in both; in fact any written or printed document that may have to be interpreted by the Court. That it is crystal clear from this definition of instrument, that both the claimant’s letter dated 7 December 2017 and the 1999 Constitution qualify as instruments within the limits of law, which this Court is now being invited to jointly interpret. The claimant then quoted section 306 of the 1999 Constitution.

51.  The claimant continued that it is settled law that only the claimant’s claim as contained in the originating process circumscribes the jurisdiction of Court. In other words, it is the claimant’s statement of claim (in the instant case, affidavit in support of originating summons) that the Court examines in determining jurisdiction and none other, citing Gafar v. Government of Kwara State [2007] 2 NWLR (Pt.1024) 375 SC and Nkuma v. Odili [2006] 6 NWLR (Pt. 977) 587 SC.

On this score, the claimant submitted that the questions he raised in the originating summons as to the letter of resignation against section 306 of the Constitution are well placed within the jurisdiction of this Court.

52.   In conclusion, the claimant urged the Court to hold that the reliefs as sought on the face of the originating summons ought to and should be granted as prayed given the facts in support and absence of any defence to the contrary.

COURT’S DECISION

53.   I took time to consider the processes and submissions of the parties. Before considering the merit of the case, a number of preliminary issues, which may impact on the merit of the case, need to be resolved. Aside from the issue of the competence of the counter-affidavit of the defendants, there are the issues of jurisdiction of this Court over the suit, and the competence of the originating summons in terms of the questions posed and the supporting affidavit, both raised by the defendants.

54.    Before even considering these preliminary issues, some remarks as to structure of the submissions need to made here. The defendants labeled paragraph 4 of their written address as “ISSUE NO 1”. This is followed by a numbering that does not make any sense. Immediately under paragraph 4 are subparagraphs in this order: 4.(a), 4.0, 4.1, 4.2, 4.3, 4.01 and 4.02. When Order 45 Rule 2(2) of the National Industrial Court (Civil Procedure) Rules 2017 (NICN Rules 2017) enjoins that written addresses are to be “set out in paragraphs and numbered serially”, I do not think that this is the type of paragraphing and serial numbering that is enjoined.

55.   Then comes this statement in paragraph “4.(a)” of the defendants’ written address, which does not make sense too:

The Combined effect of Section 251 and paragraph (5) is to the fact that the Federal High Court has exclusive jurisdiction over matters listed in the Act of the National Assembly so being within the jurisdiction of the Federal High Court whether or not the Act stated that the jurisdiction is exclusive.

56.  First, I do not know which “paragraph (5)” the defendants are referring to. Second, when the defendants stated that “the Federal High Court has exclusive jurisdiction over matters listed in the Act of the National Assembly”, it is not shown to the Court what Act the defendants are referring to. Lastly, the concluding phrase, “so being within the jurisdiction of the Federal High Court whether or not the Act stated that the jurisdiction is exclusive”, makes no sense at all.

57.   On the issue of jurisdiction raised by the defendants, the argument of the defendants is that given section 251(1)(p), (q) and (r) of the 1999 Constitution, it is the Federal High Court, not this Court, that has jurisdiction over this case. To the defendants, this case is about the exercise of powers and duties, in the administration or the management and control of the Federal Government or its agencies and as it affects the Federal Government and its agencies, seeking a declaration and injunction affecting the validity of its executive and administrative action or decision.

58.  Section 251 of the 1999 Constitution provides thus:

(1)     Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters -

(p)   the administration or the management and control of the Federal Government or any of its agencies;

(q)   subject to the provisions of this Constitution, the operation and interpretation of this Constitution in so far as it affects the Federal Government or any of its agencies;

(r)   any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies; and

(s)   …………….

Provided that nothing in the provisions of paragraphs (p), (q) and (r) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunction or specific performance where the action is based on any enactment, law or equity.

59.   To support their position, the defendants referred to Ayeni v. University of Ilorin [2000] 6 NWRL (Pt. 644) 290, a Court of Appeal authority, which the defendants themselves acknowledge related to State High Courts. This reference leaves much to be desired and betrays

the theory deficit exhibited by the defence counsel. Is this Court (NICN) a State High Court as to make the case law authority applicable to it?

60.   The cases relied on by the defendants in arguing that it is the Federal High Court, not this Court, that has jurisdiction over this matter all predate the Third Alteration Act 2010. The Court of Appeal had cautioned on the citing and using of case law authorities out of context; in particular, in citing cases decided before the change in law as authority for the new dispensation of the changed law. For instance, Nasarawa State Specialist Hospital Management Board & ors

v. Mohammed [2018] LPELR-44551(CA) upheld and reiterated the need to treat/apply older case law authorities with caution, especially case law authorities that pre-date the Third Alteration. And so, on the Supreme Court case of Osoh v. Unity Bank Plc [2013] LPELR-19968(SC); [2013] 9 NWLR (Pt. 1358) 1, this is what the Court of Appeal said:

Osoh v. Unity Bank Plc supra, which the lower Court relied on is inapplicable to the instant matter as it was decided on the basis of the Trade Disputes Act and the 1979 Constitution which did not give jurisdiction on matters relating to employment to the National Industrial Court. The Supreme Court was not called upon to consider sections 6(1)(5)(cc) and 254C(1)(a) of the 1999 Constitution of Nigeria.

61.   The height of it all is the fact that the defence counsel appears oblivious of section 254C of the 1999 Constitution, inserted by the Third Alteration Act 2010, which deals with the jurisdiction of this Court and subjects section 251 of the 1999 Constitution to it. If only the defence counsel read this provision (except he did but just deliberately wants to mislead the Court), he would not have been making the absurd argument that this case is about the administration of a Federal Government agency.

62.   The defence counsel also did not seem to appreciate that for section 251(1)(r) of the 1999 Constitution to come into play, it is “the validity”, not outcome, of the executive or administrative action or decision by the Federal Government or any of its agencies that must be in issue for the Federal High Court to have jurisdiction in the first place. In determining the application of the said section 251(1)(r) relative to the State High Court, His Lordship Hon. Justice Affen, JCA in IGP & ors v. Essien [2022] LPELR-58341(CA) succinctly made the point in these words:

The point to vigorously underscore is that it is not all actions or proceedings for a declaration or injunction touching upon an executive or administrative action or decision of the Federal Government or any of its agencies that is exclusively cognisable by the Federal High Court under Section 251(1)(r) CFRN. Quite the contrary, the proceedings must have a bearing on the validity of such executive or administrative action or decision of the Federal Government or any of its agencies before the jurisdiction of the State High Court can be ousted. I reckon that if the Constitution intended to confer exclusive jurisdiction on the Federal High Court over all executive or administrative actions or decisions of the Federal Government or its agencies, Paragraph (r) of Section 251(1) would simply have read: any action or proceeding for a declaration or injunction affecting any executive or administrative action or decision by the Federal Government or any of

its agencies' without any qualification whatsoever. But it is the wisdom of the Constitution to confer the Federal High Court with exclusive jurisdiction only in respect of proceedings for declaration or injunction affecting the validity of executive or administrative actions or decisions by the Federal Government or its agencies.

…the term validity is an abstract noun and derivative of valid which is defined as binding, possessing legal force or strength, legally sufficient… Validity signifies legally sufficient in contradistinction to mere irregularity. It would seem therefore that an action or proceeding affecting the validity of any administrative action or decision of the Federal Government or any of its agencies in the context of Section 251(1)(r) CFRN must be one that transcends mere irregularity or wrongfulness of the executive or administrative action or decision complained of. The legal force, binding-ness or legal sufficiency of the executive or administrative action or decision, or the legal competence, capacity or authority of the Federal Government or its agency to take the executive or administrative action or make the executive or administrative decision must be a front-burner issue in an action or proceeding before it can be said to affect the validity of any such executive or administrative action or decision.

63.  The two questions posed by the claimant in this suit relate to whether the claimant can resign from the defendants’ service; and when the claimant’s resignation letter became effective as to be entitled to a discharge certificate. These questions relate to the employment relationship of the claimant with the defendants. The reliefs the claimant claims all relate to the questions posed. Thus being an employment case, this Court under section 254C(1) has the exclusive jurisdiction over this case. The exclusivity of this Court’s jurisdiction is stressed in the opening words of section 254C(1):

Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters…

64.   The point is that even if section 251 of the 1999 Constitution had bestowed jurisdiction on the Federal High Court, the coming into effect of section 254C(1) of the 1999 Constitution takes away that jurisdiction once the matter is an employment matter as is the case in the instant suit. The exclusivity of the jurisdiction of this Court has been affirmed in case law authorities such as Keystone Bank Limited v. Mr. Olukayode Abiodun Oyewale [2014] LPELR-23612(CA) and Unity Bank Plc v. Alonge [2024] LPELR-61898(CA).

65.   I am accordingly not in doubt that this Court has jurisdiction, an exclusive one at that, over this case. I accordingly discountenance the argument of the defendants in that regard and rule that this Court has jurisdiction over this case.

66.   Having held that this Court has jurisdiction over this case, I now proceed to the issue of the competence of the originating summons in terms of the questions posed and the supporting

affidavit. The defendants also argued that paragraphs 12 to 19 of the supporting affidavit failed to disclose or demonstrate, sufficiently and effectively, which instrument is to be interpreted by the Court or that have been affected for interpretation.

67.  Relying on Order 3 Rule 3 of the NICN Rules 2017, the defendant had argued that no law or instrument is indicated by the claimant for interpretation to warrant the claimant’s originating summons to be competent. The said Order 3 Rule 3 provides thus:

Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or law in force in Nigeria.

68.   Rule 16(1) and (2) of Order 3 of the NICN Rules 2017 supplements Rule 3 just quoted in these words:

(1)   Any person claiming to be interested under an enactment, constitution, agreement or any other written instrument may by originating summons apply to the Court for the determination of any question of construction arising from the instrument and for a declaration of the rights of the person(s) interested, in so far as such question of construction arises from a subject matter over which the Court has jurisdiction.

(2)    A party activating the interpretative jurisdiction of the Court shall indicate with sufficient particularity the provisions or part of the document sought to be interpreted.

69.   In answer, the claimant submitted that it is his resignation letter that is the instrument billed for interpretation, as can be discerned from question (2) as posed in the originating summons. While question (2) asks whether the claimant’s resignation letter is effective from the date of receipt and for which a discharge certificate ought to be issued, question (1) asks whether the claimant is entitled to voluntarily resign from the defendants’ service. Do these questions satisfy the requirements of Order 3 Rules 3 and 16 of the NICN Rules 2017? In two earlier cases similar to the instant case, Elkanah John Garang v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/117/2023, the judgment of which was delivered on 29 February 2024 (decided by Anuwe J), and Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/364/2024, the judgment of which was delivered on 4 March 2025 (decided by my humble self), similar questions were posed in the originating summons that originated the two suits. Although the competence of the questions posed was not raised in the two suits, this Court raised no issue in that regard and proceeded to answer the questions.

70.   Question (1) cannot be answered without interpreting section 306 of the 1999 Constitution given that paragraph 15 of the affidavit in support talks of the claimant’s constitutional right to voluntarily exit from service. Question (2) seeks to determine the effective date of the claimant’s resignation letter and whether he is entitled to a discharge certificate. Given that this Court previously considered similar questions to the instant questions, it is only fair and just that this

Court considers the instant originating summons as couched. I, therefore, hold the originating summons to be competent. I so rule.

71.   Paragraphs 12 to 19 of the claimant’s affidavit in support go to feed the questions posed and the reliefs prayed for. They are accordingly valid and competent. I so rule.

72.   I now proceed to the issue of the competence of the counter-affidavit of the defendants. The defendants’ counter-affidavit was sworn to by a counsel in the Law Firm of the defence counsel, and not by a staff of the defendants. The defendants submitted that the 2007 Rules of Professional Conduct (RPC), which prohibit a counsel from testifying, basically has nothing to do with the competence to testify as a witness merely because he is a counsel in the matter, but is more of a matter of ethics, citing Ikeme v. Anakwe [2003] 10 NWLR (Pt. 829) 548 at 572 and Elabanjo v. Tijari [1985] 5 NWLR 952. The issue here comes in three forms:

(a)   lawyers who allow persons who do not have personal knowledge of facts to depose to affidavits in proof of cases;

(b)   lawyers who either by themselves or make their litigation clerks or secretaries depose to facts intended to prove a case (where the case is appropriately commenced/activated) as they are not in any position to vouch for the truth or accuracy of information derived from clients; and

(c)   lawyers or their clerks who swear to affidavits that originate suits, or that defend suits as in the case of counter-affidavits.

73.   For present purposes, the Court is more concerned with the second and third scenarios. As a prefatory point, I must state that where the law has no problem with lawyers in a matter deposing to affidavits, it clearly permits such. For instance, section 83(1) of the Sheriffs and Civil Process Act LFN 2004 permits a litigant or his lawyer to depose to an affidavit when applying for a garnishee order. A fortiori, where the law is silent, a lawyer cannot so depose to the affidavit. This is not just a matter of ethics as the defendants want this Court to believe. The authorities are clear on this.

74.   In general, such an affidavit sworn to by one who has no personal knowledge of the facts in issue may qualify as hearsay evidence. His Lordship Peter Affen, JCA in Ibeto & anor v. Oguh [2022] LPELR-56803(CA), relying on Kate Enterprises Ltd v. Daewoo Nig Ltd [1985] 2 NWLR (Pt. 5) 116, accordingly cautioned thus:

The rather forceful submission of learned counsel for the Respondent to the effect that ‘a deponent of an affidavit is a witness that can depose to facts that are within his personal knowledge or information which he believes to be true and same will be admitted in Court as evidence and not treated as hearsay provided that such deponent disclosed the source of his/her information’ clearly loses sight of the probative value or forensic utility of such evidence. Whilst it is correct that Section 115(4) of the Evidence Act 2011 permits a deponent to swear to facts derived from a third party in an affidavit insofar as the source of his information is properly disclosed, such depositions are of very little forensic Utility as they constitute hearsay evidence. The factum that such information

was given is all that there is to such information, but qualitatively, the truth of such information is a different thing entirely: it is hearsay evidence as to the truth which remains inadmissible. See ORUNOLA v ADEOYE [1995] 6 NWLR (PT. 401) 338 at 353

- per Nsofor JCA and NIGERIA PORTS AUTHORITY v AMINU IBRAHIM & CO.

supra at 500 - 501 - per Agbo JCA. Hearsay is evidence given by a person who cannot vouch for the truth thereof. It is a piece of evidence which does not derive its value solely from the credit given to the witness himself, but rests in part on the veracity and competence of some other person e.g. the statement of a person who is himself not called as a witness but what he said is repeated by another witness who is called. See OJO v GHARORO (2006) 2 - 3 SC. 105, AROGUNDADE v STATE (2009) LPELR-559(SC)

and SUBRAMANIAM v PUBLIC PROSECUTOR (1956) 1 WLR 965 at 969. That is

why it is always ill-advised for a lawyer or his clerk or secretary to depose to facts intended to prove a case as they are not in any position to vouch for the truth or accuracy of information derived from clients. Even the evidence of an employee of a company who was not directly involved in a transaction is to be treated with caution as it is scarcely of equal stature with, and may be insufficient to contradict the evidence adduced by the adverse party who was directly involved in the transaction. See KATE ENTERPRISES LTD v DAEWOO NIG LTD [1985] 2 NWLR (PT. 5) 116 where the

Supreme Court held that any employee of a company who is conversant with a transaction is competent to testify in Court on behalf of the company, and not only those who were directly involved in the transaction, but proceeded to sound a note of caution that even though the evidence adduced by an employee who was not directly involved in a transaction is admissible, the question of the weight or probative value to be ascribed to his/her evidence is an entirely different matter. In the instant case, the evidence in support of the Respondent case was based entirely on the affidavit evidence of Chisom Ibe: a lawyer’s clerk who deposed to facts based on information derived from the Respondent. To the extent that the averments contained in the affidavit of Chisom Ibe seek to establish the truth of the transaction between the Appellants and the Respondent, they constitute inadmissible hearsay and incapable of sustaining the Respondent's claim before the lower Court.

75.   In National Pension Commission v. The Centagon International School unreported Suit No. NICN/ABJ/186/2022, the judgment of which was delivered on 16 May 2023, the deponent of the defendant’s counter-affidavit, who said in paragraph 1 that she is the Account Officer to the defendant, by virtue of which she is familiar with the facts deposed to in the counter-affidavit, would in paragraphs 9 and 17 of the counter-affidavit deposed to facts as told to her by counsel to the defendant, “Mr Bashir Ramoni”. In paragraph 17(iv), she would reel out the list of documents that the defendant released to the claimant as told to her by the defendant’s counsel, not as of her own knowledge. This Court ruled that to the extent that the information therein was as told to the deponent by the defendant’s counsel, those averments constitute inadmissible hearsay and incapable of proving the facts deposed to therein.

76.    And in Federal Government & anor v. Academic Staff Union of Universities (ASUU) unreported Suit No. NICN/ABJ/270/2022, the judgment of which was delivered on 30 May 2023, the affidavit evidence adduced by one Okechukwu Nwamba, on behalf of the Federal Ministry of Labour and Employment/Federal Government, was to the effect that “the University Transparency and Accountability Solution UTAS being insisted upon for adoption by the Academic Staff Union of Universities failed the technical integrity, vulnerability and stress test made by the National Information Technology Development Agency” (NITDA). Since the deponent was not a staff of NITDA, and the proof of the failure of UTAS of the technical integrity, vulnerability and stress test made by NITDA was not exhibited, the NICN rejected this piece of evidence on the ground of hearsay.

77.   The law generally frowns on legal practitioners who are counsel in a matter deposing to affidavits, especially where they stand the risk of being called to testify on the sworn affidavit in issue, or vouch for the truth or accuracy of information derived from clients. In Matthew & ors v. Chevron (Nig) Ltd [2023] LPELR-59523(CA), the Court of Appeal deprecated the practice of legal practitioners deposing to affidavits, especially contentious ones, in matters in which they are counsel. In his concurring judgment, His Lordship Eko, JSC in Akinlade & anor v. INEC & ors [2019] LPELR-55090(SC) held that the counter-affidavit in issue sworn to be a lawyer in the Law Firm of counsel to the appellants, being offensive to paragraph 20(4) of the Rules of Professional Conduct for Legal Practitioners 2007, must be discountenanced for that very reason.

78.   Other cases are more direct in the leading judgments in discountenancing affidavits (both supporting and counter) sworn to by legal practitioners who are counsel in the matter. In First Trustees (Nig.) Ltd & ors v Intels (Nig) Ltd & ors [2022] LPELR-57080(CA), five applicants jointly filed an application for leave to appeal as an interested party against the ruling of the Federal High Court, Port Harcourt Division. The application was accompanied by an affidavit deposed to by one Makana Nria, a legal practitioner. The same legal practitioner deposed to a further-affidavit on 5 November 2020 and a reply affidavit, on 23 February 2021. In opposing the application, the 1st respondent filed a counter-affidavit on 10 November 2020, which one Ikaye Mabiaku Esq deposed to. He is also a legal practitioner. The Court of Appeal in discountenancing the affidavits sworn to by counsel in the matter ruled the application to be incompetent. And then admonished thus:

The point needs to be reiterated, at this point in the ruling, that legal practitioners who depose to affidavits, as it happened in this matter, endanger the cases they are meant to advance on behalf of their clients, especially, in contentious matters, like the one in this matter, where lawyers deposed to facts which oppose each other. Makana Nria Esq., who deposed to the three affidavits relied upon by the applicants, even appeared, as counsel, at the hearing of the application. Counsel to both applicants and the 1st respondent fell afoul of the simple admonition of the Courts, over the years.

79.  And in Matthew & ors v. Chevron (Nig) Ltd [2023] LPELR-59523(CA), the Court of Appeal was emphatic in holding thus:

In the circumstance, both the affidavit and the counter-affidavit relied upon by the parties on both sides were deposed to by legal practitioners who should not have done so, it is my view that there is no value to be placed on the affidavit or counter affidavit placed before this Court in the application argued.

80.  See additionally Owners of MT Marigold v. NNPC [2022] 7 NWLR (Pt. 1828) 165 SC at 196

- 197 per Eko, JSC. And Bwacha v. Kente & ors [2022] LPELR-58989(CA), which held that: “The affidavit in support of the motion having been sworn to by a legal practitioner is hereby discountenanced”.

81.   If no value can be placed on an affidavit sworn to by a legal practitioner, if such an affidavit can only be discountenanced, if counsel thereby endanger their clients’ respective cases, and if such an affidavit is hearsay, it can only be that the defendants’ counter-affidavit in the instant suit has no value and must be discountenanced. This done, it means that the case of the defendants in this suit is undefended as they have no valuable/competent counter-affidavit. It is my ruling, therefore, that the defendants’ counter-affidavit in this suit is not competent and so is hereby discountenanced. I so hold.

82.   I shall now proceed with the merit of the case. Even here, the defendants had in paragraph

4.02 of their written address talked of the claimant breaching Article 05.12(d) of the Armed Forces of Nigeria “Harmonised Terms and Conditions of Service”. The claimant also in paragraphs 17 and 19 of his reply on points of law referred to, and quoted from, the said “Harmonised Terms and Conditions of Service”. This document was not placed before the Court in order to determine exactly what the said provisions stipulate. I shall accordingly disregard arguments made on its basis since the said document is not before the Court.

83.     The defendants had also argued that the originating summons as supported by an affidavit does not disclose or demonstrate how the claimant’s civil rights or obligations have been affected by the defendants. This submission appears to be one just made for the fun of it, or just so that counsel to the defendants is seen to be making a submission. In an originating summons, the affidavit in support and the counter-affidavit are the pleadings upon which the case of the claimant and the defence of the defendant will be determined. See Mainstreet Bank Capital Ltd & anor v. Nigeria Reinsurance Corp. Ltd [2018] LPELR-44905(SC) and Muhammed

v. The Executive Governor Kano State & ors [2024] LPELR-62086(CA).

84.   A look at the claimant’s affidavit in support will show that in paragraph 10, the claimant asserted that he tendered his resignation letter, which the defendants acknowledged, and then stopped his salary. In paragraph 11, he asserted that he caused his lawyer to formally demand for his discharged certificate. And paragraphs 15, 16 and 17 stress the claimant’s right to resign. All of these paragraphs are sufficient to ground the case of the claimant and dispel the submission of the defendants. But whether the claimant will succeed in terms of the reliefs he claims, is altogether a different question. It is my holding, therefore, that the originating summons as

supported by the claimant’s affidavit discloses/demonstrates how the claimant’s civil rights have been affected by the defendants. I so rule.

85.   Question (1) asks whether the claimant as a public officer can voluntarily resign from the service of the defendants. To answer this question, it must be resolved first whether the claimant is a public officer. A similar question relating to an enlisted Nigerian Air Force personnel was answered in the affirmative. See Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/364/2024, the judgment of which was delivered on 4 March 2025. In the instant case, therefore, the claimant, who by paragraph 3 of the affidavit in support of the originating summons “was enlisted to the Nigerian Navy”, qualifies as a public officer given section 18(1) of the Interpretation Act and the definition of “public service of the Federation” in section 318(1) of the 1999 Constitution, as well as Hon. Farouk M. Lawan v. FRN [2024] LPELR-62546(SC), Mrs Ramatu T. Shehu v. Judicial Service Committee of the Federal Capital Territory & anor unreported Suit No. NICN/ABJ/24/2018, the judgment of which was delivered on 3 March 2020 and Mr Victor Omotosho Ekundayo v. Federal Inland Revenue Service (FIRS) & 2 ors unreported Suit No. NICN/ABJ/82/2021, the judgment of which was delivered on 23 February 2022. I hold, therefore, that the claimant qualifies as a public officer. I so rule.

86.   As a public officer in the service of the defendants, is the claimant entitled to voluntarily resign from the service of the defendants? The defendants are creations of section 217 of the 1999 Constitution, and so are bound by section 306 of the same Constitution. In both Elkanah John Garang v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/117/2023, the judgment of which was delivered on 29 February 2024 and Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor unreported Suit No. NICN/ABJ/364/2024, the judgment of which was delivered on 4 March 2025, the NICN answered the question of the right of the claimant to voluntarily resign in the affirmative. Accordingly, for the fuller reasons adduced in Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & anor, which include a consideration of relevant provisions of the Armed Forces Act No. 105 of 1993 and case law authorities (all adopted here), I hold that the claimant has the right to voluntarily resign from the service of the defendants. I accordingly answer question (1) in the affirmative.

87.   Question (2) is as to when the claimant’s resignation took effect and whether the claimant is thereby entitled to a discharge certificate. Section 306(2) of the 1999 Constitution is specific in stating that:

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

88.     Exhibit MK3 is the claimant’s resignation letter dated 7 December 2017. The CNS Secretariat received the resignation letter on 8 December 2017. This can be seen on the face of Exhibit MK3. The receipt of the resignation letter on 8 December 2017 means that by section

306(2) of the 1999 Constitution, the resignation letter took effect on 8 December 2017, without more.

89.   By Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1 CA, resignation takes effect from the date notice is received; and there is absolute power to resign and no discretion to refuse to accept the notice. See also Yesufu v. Gov. Edo State [2001] 13 NWLR (Pt. 731) 517 SC, Abayomi Adesunbo Adetoro v. Access Bank Plc unreported Suit No. NICN/LA/293/2013, the judgment of which was delivered on 23 February 2016 and Taduggoronno v. Gotom [2002] 4 NWLR (Pt. 757) 453 CA. 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 21 February 2017 and Dr (Mrs) Ebele Felix v. Nigerian Institute of Management unreported Suit No. NICN/ LA/321/2014, the judgment of which was delivered on 4 July 2017. This labour jurisprudence is rooted in section 34(1)(c) of the 1999 Constitution, section 73(1) of the Labour Act and the ILO Convention Concerning Forced or Compulsory Labour, 1930 (No. 29), a Convention ratified by Nigeria on 17 October 1960 . See https://www.ilo.org/dyn/normlex/en/f?  p=1000:11200:0::NO:11200:P11200_COUNTRY_ID:103259 as accessed on 5 May 2025.

90.   In paragraph 11 of his affidavit in support of the originating summons, the claimant averred that the defendants did not issue him the discharged certificate and so he caused his lawyer to issue a formal request. The lawyer did this vide Exhibit MK4 dated 15 July 2024. There is no evidence before the Court that the defendants’ issued the said discharge certificate. I am satisfied, therefore, that the claimant has made out a case for it. In all, I answer question (2) in favour of the claimant thus: the claimant’s resignation letter is effective from 8 December 2017 (the date it was received) and a discharge certificate ought to have been issued, given that the defendants stopped payment of salaries and allowances to the claimant.

91.  Having answered the two questions in favour of the claimant, is the claimant thereby entitled to all the reliefs he claims? In Ogbebor v. Ihasee [2024] LPELR-62380(SC), His Lordship Adah, JSC held that:

pleadings by their nature contain statements of fact which need to be proved by evidence. The concern of any party in a case for declaratory reliefs is how to establish by credible evidence what has been pleaded. Each party must labour to prove his claim and not to wait for the weakness or loopholes in the opponent's case.

92.   The claimant must accordingly prove his case. He has the duty to plead facts and prove his case. In the words of the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47:

A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same. He may, at the end of the day obtain all the reliefs claimed or less. He never gets more. Nor does he obtain reliefs not claimed. A court is therefore bound to grant only the reliefs claimed. It cannot grant reliefs not claimed.