IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP: HON. JUSTICE R. H. GWANDU

DATE:24^th JULY, 2025                                      SUIT NO.: NICN/LA/352/2023

BETWEEN

MOBOLAJI ANJOLAIYA ………………..                        CLAIMANT

AND

NIGERIAN AIR FORCE  ……………….                         DEFENDANT

Representation.

Khalid Abbas with O.S Sanusi for the Claimant

O.E Alaofin with J.A Adewumi for the Defendant

JUDGMENT

The Claimant commenced this action vide a general form of Compliant dated and filed on the 18^th December 2023 claiming the following reliefs against the Defendant-

1. A DECLARATION that the Claimant's Resignation vide the Letter dated 29 March 2023 is lawful, effective and extant.
2. A DECLARATION that the Defendant has brazenly breached the Harmonised Terms and Conditions of Service for Officers-2017[Revised][HTACOS], the Manual of Financial Administration for the Armed Forces of Nigeria 2017 (MAFA), and other applicable laws.
3. A DECLARATION that the Claimant is entitled to rescission/resignation from the employment of the Defendant, upon the Defendant's multiple breaches/misrepresentation of the Harmonised Terms and Conditions of Service for Officers-2017[Revised) [HTACOS], the Manual of Financial Administration for the Armed Forces of Nigeria 2017 (MAFA), and other relevant laws;
4. A DECLARATION that that Defendant's purported declination of the Claimant's resignation contained in the letter dated 24 May 2023 is invalid, unlawful and ineffective;
5. AN ORDER mandating the Defendant to process the Claimant's disengagement, and issue to him, his Certificate of Service.
6. A DECLARATION that the Defendant's failure/refusal to pay the Claimant the allowances due to him under the Manual of Financial Administration for the Armed Forces of Nigeria 2017 [MAFAJ is oppressive, unlawful and unfair:
7. AN ORDER mandating the Defendant to pay to the Claimant, the following overdue unpaid allowances under the Manual of Financial Administration for the Armed Forces of Nigeria 2017[MAFA]:
8. Professional Allowance: By paragraph 06.04 p of the MAFA, in the sum of N7,950,000 (Seven Million Nine Hundred and Fifty Thousand Naira), representing the total of his [N150,000] [One Hundred and Fifty Thousand Naira) 53 months unpaid professional allowance;
9. Higher Rank Pay: By paragraph 06.04 (cc) of the MAFA, in the sum of N2,500,000 (Two Million Five Hundred Thousand Naira)
10. Commissioning Allowance: By paragraph 06.04 [dd) of MAFA, in the sum of N246,441 (Two Hundred and Forty-Six Thousand, Four Hundred and Forty-One Naira].
11. Outfit on Commission Allowance: By paragraph 06:04[ee] of MAFA, in the sum of N500,000 (Five Hundred Thousand Naira).
12. Plain Cloth Allowance: By paragraph 06.04 [hh] of MAFA, in the sum of (Five Hundred and forty-four Thousand, Two Hundred and Twenty-six Thousand Naira].;
13. Packing on Posting Allowance: By paragraph 06.04 [a] of MAFA, in the sum of N246,440 (Two Hundred and Forty-Six Thousand, Four Hundred and Forty Naira;
14. Terminal Leave Allowance: By paragraph 06.04 [ll] of MAFA, in the sum of N616,101.75 (Six hundred and Sixteen Thousand, One Hundred and One Naira, Seventy-Five Kobo];
15. Terminal Packing Allowance: By paragraph 6.04 [b] of MAFA, in the sum of N246,441 (Two Hundred and Forty-Six Thousand, Four Hundred and Forty-One Naira].
16. First 28 Days Allowance: By Paragraph 06.04[aa] of the MAFA, in the sum of N560,000 (Five Hundred and Sixty Thousand Naira).
17. Air flight and Daily Tour Allowance totalling the sum of N165,000 (One Hundred and Sixty-Five Thousand Naira]
18. AN ORDER mandating the Defendant to account for and pay to the Claimant the totality of deductions made from his emolument with accrued interest thereon;
19. AN ORDER mandating the Defendant to account for and pay to the Claimant his terminal benefits in accordance with the Manual of Financial Administration for the Armed Forces of Nigeria 2017 [MAFA];
20. AN ORDER mandating the Defendant to pay the Claimant General Damages in the sum of N50,000,000 (Fifty Million Naira) for breach of the Harmonised Terms and Conditions of Service for Officers-2017 (Revised) [HTACOSJ, the Manual of Financial Administration for the Armed Forces of Nigeria 2017 [MAFA], and other applicable laws; and for its oppressive and unfair labour practices.
21. A DECLARATION that the Claimant is not AWOL.
22. A DECLARATION that the Defendant defamed the Claimant.
23. AN ORDER compelling the Defendant to by like means, delete the AWOL Declaration contained in the NAF Message Form dated 07 December 2023 with Originators No: 055CAMP/146, and to further publish the deletion in all routine orders in all NAF units and formations.
24. AN ORDER mandating the Defendant to pay the Claimant Damages in the sum of N250,000,000 (Two Hundred and Fifty Million Naira) for the defamation of his character.
25. AN ORDER mandating the Defendant to pay the Claimant exemplary/punitive damages in the sum of N250,000,000 (Two Hundred and Fifty Million Naira);
26. AN ORDER mandating the Defendant to pay the Claimant the costs of this action, including counsel's fees, assessed at N10,000,000 (Ten Million Naira).
27. AN ORDER mandating the Defendant to pay post-judgment compounded interest on each of and the entire judgement sums at the rate of 20% per annum.

In response, the Defendant filed a statement of defence dated 6^th May, 2024, disclaiming and disputing liability for the Claimant’s claims.

In response to the Statement of Defence, the Claimant filed his Reply dated 4^th June, 2024.

BRIEF FACTS OF THE CASE

The Claimants case is that he was commissioned under the Direct Short Service regulated by the Harmonised Terms and Conditions of Service for Officers – 2017 (Revised) (HTACOS) and Manual of Financial Administration for Armed Forces of Nigeria 2017 (MAFA). After completion of his mandatory probationary period, the Claimant applied to resign and the Defendant refused the resignation. The Claimant’s case is that the refusal to accept his resignation is unlawful.

He also contends that the Defendant owes him unpaid emolument and thus has a duty to account for and pay same and that claimant having effectively resigned, the Defendant’s publication that he is absent without leave constitutes a defamation of the Claimant’s character.

The Claimants contention 4 is that the defendant’s actions were so blatantly illegal, outrageous and oppressive that in addition to general damages, exemplary damages ought to be awarded against the Defendant.

The Defendants case is that the resignation of the Claimant was lawfully refused in line with the Rules regulating his employment and all financial obligations due to the Claimant fully discharged.

Trial commenced on 7^th March, 2025 and the Claimant testified as Claimant’s sole witness and tendered Exhibits in evidence marked as M1-M24.

The Defendant’s sole witness, Squadron Leader O. O. Alade, testified on 7^th March, 2025. She did not tender any Exhibits.

After the close of party’s cases, the Court adjourned for filing and adoption of final written addresses, the Defendants final address was filed on the 27^th March 2025 and Counsel raised the following issues for determination-

1. Whether the documents marked Exhibit M4 and M5, Harmonised Terms and Conditions of Service for Officers – 2017 (Revised) (HTACOS) and Manual of Financial Administration for Armed Forces of Nigeria 2017 (MAFA) respectively are inadmissible and ought to be expunged from the records.
2. Whether the Claimant is entitled to all the reliefs sought.

The Claimant’s final written address was filed on the 7^th May, 2025 and Claimants Counsel raised the following issues for determination-

1. In view of section 306 (1) & (2) of the 1999 Constitution, was the Claimant’s resignation from the Defendant lawful and effective?
2. Whether the Honourable Court can properly make use of and rely on: i) the Harmonised Terms and Conditions of Service for Officers- 2017 (Revised) [HTACOS] and ii) the Manual of Financial Administration for the Armed Forces of Nigeria 2017 (MAFA] (Exhibits M4 and M5 respectively)
3. Whether the Claimant is entitled to recover his emoluments/allowances, deductions and terminal benefits from the Defendant?
4. Having effectively resigned from the Defendant, is the Defendant’s publication that the Claimant is absent without leave defamatory of the Claimant? 
5. Considering the totality of the Defendant’s illegal, outrageous and oppressive treatment of the Claimant, is the Defendant liable to pay the Claimant exemplary/punitive damages?

ARGUMENT OF COUNSEL

Arguing issue one of the Defendants final address, Counsel submitted that Section 102 of the Evidence (Amendment) Act, 2023 defines a public document and it is not in doubt that the Defendant is a public institution. The documents marked as Exhibits M4 and M5 are subsidiary legislations that regulate the affairs of the officers under the Defendant. Thus, Exhibits M4 and M5 are public documents.

That the law is settled on the admissibility of public documents. Only certified true copy may be admitted as secondary evidence in poof of the contents of a public document. Sections 90 (1) (c) & 104 of the Evidence Act. UDOM V. UMANA (2016) 12 NWLR (PT.1526) 179, 235.

That it is not in dispute that the Claimant in his pleadings gave the Defendant notice to produce Exhibits M4 and M5 amongst documents. This only allows him to tender secondary document in place of the original. This does not waive the requirement for certification of photocopy.

The Claimant knowing this principle tendered a certified true copy of the Public Service Rules as in Exhibit M6. The same applies to M4 and M5, that Exhibits M4 and M5 being photocopies of public documents ought to have been certified and failure to certify same renders them inadmissible.

The law is clear that where documents that are inadmissible are admitted, they are deemed wrongly admitted and liable to be expunged from the records. It is the duty of the Court not to act upon it but to expunge same from the records. See AG LEVENTIS (NIG.) PLC .V. AKPU (2007) NWLR PT. 1063 416 @ 440 G-H.

Arguing issue two, Counsel submitted that three (3) pertinent questions can be distilled from this issue, they are;

1. Whether the Defendant’s refusal of the Claimant’s resignation was legal?;
2. Whether the Claimant’s character was defamed?
3. Whether the Claimant proved his monetary claims against the Defendant?

On whether the Defendant’s refusal of the Claimant’s resignation was legal, Counsel submitted that the Claimant was commissioned as a member of Direct Short Service under the Defendant by Exhibit M2, it is not in dispute between the parties that the claimant’s employment was governed by the Armed Forces Act, the Harmonized Conditions of service for Officers 2017 (Revised) and the Manual of Financial Administration for Armed Forces of Nigeria 2017 (MAFA) and as can be gleaned from the evidence before the court oral and documentary, the claimant’s employment is governed by Exhibits M4 and M5 and the provisions of the Armed Forces Act.

That an employment enjoys statutory flavour when the contract of service is governed by statute or where the conditions of service are contained in regulations derived from statutory provisions. In the circumstance they invest the employee with a legal status higher than the ordinary master/servant relationship. See: IMOLOAME VS W.A.E.C. (1992) NWLR (PT.265) 303; OLANIYAN VS UNIVERSITY OF LAGOS (1985) 2 NWLR (PT.9) 599; SHITTA-BEY V. PUBLIC SERVICE COMMISSION (1981) 1 SC 40. 

That the Claimant’s employment with the Nigerian Air Force enjoyed statutory flavour and it is settled that employments that enjoy statutory flavour can only be determined in the manner allowed by the very statutes that provided for them. See KUNLE OSISANYA V. AFRIBANK NIGERIA PLC (2007) 6 NWLR (PT.1031) 565, BAMGBOYE V. UNIVERSITY OF ILORIN (1999) LPELR - 737 (SC), IDONIBOYE-OBU V NNPC (2003) 2 NWLR (PT.805) 589, (2003) 1 SC (PT.1) 40, (2003) LPELR-1426(SC), OLORUNTOBA V ABDUL-RAHEEM (2009) 13 NWLR (PT.1157) 83 SC, (2009) LPELR-2596(SC).

Where a statute clearly provided for the employment and discipline including an employee's resignation, retirement and even dismissal, the employment must be determined in the way and manner prescribed by the relevant statute and any other manner of determination inconsistent with what the statute prescribed is null and void. See E.P. IDERIMA V. RIVERS STATE CIVIL SERVICE COMMISSION LPELR-1420 (SC); CHIEF TAMUNOEMI IDONIBOYE-OBU V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2003) LPELR - 1426 (SC).

The only and valid way to terminate a contract of service with statutory flavour is to adhere strictly to the procedure laid down in the statute. See BAMGBOYE VS UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622) 290; OLATUNBOSUN VS N.I.S.E.R. COUNCIL (1988) 3 NWLR (PT.80) 25; The case of the Claimant herein is that the refusal of his resignation of 29^th March, 2023 by the Defendant is illegal and not in accordance with Exhibit M4. Exhibit M4 stipulates the length of service required of members of the Direct Short Service to which the Claimant belonged.

Paragraph 06.05 (a) and (b) state thus:

“The following conditions shall govern the length of service of an officer granted a Direct Short Service Commission:

1. Fifteen years for an initial period of 8 years’ service, renewable yearly for another period of 7 years, once or more years at a time except for medical consultants.
2. Shall be on probation for the first 3 years of service.”

Counsel submitted that it is in evidence that the Claimant completed his 3 years probationary period in accordance with Exhibit M2 and M4. The Claimant however did not complete the initial period of 8 years’ service before tendering his resignation.

The Claimant led evidence in paragraph 19 of his evidence in chief that Exhibit M4 does not debar him from resignation even though the said Exhibit M4 in paragraph 06.05 provides for length of service.

The Defendant by Exhibit M9 in refusing the Claimant’s resignation in compliance with Exhibit M4 stated in evidence that resignation is only applicable to members holding a Regular Commission unlike the Claimant who holds a Direct Short Service Commission. He is only entitled to retirement as detailed in Paragraph 11.02 of Exhibit M4.

That it must be pointed out that the Claimant in paragraph 19 of his evidence in chief admits that paragraph 06.05 of Exhibit M4 states the length of service required of him, yet he states that the said provision does not debar him from resigning before completing his required length of service. It is good law that the Court must only interpret the words of a statute where they are clear according to their ordinary, literal and grammatical meaning without any coloration. See OBI V INEC (2007) 11 NWLR (PT 1046) 449, A-G FEDERATION & 2 ORS V ALHAJI ATIKU ABUBAKAR & 3 ORS (2007) SC 31.

Counsel submitted that the attempts of the Claimant to misinterpret the relevant provisions of Exhibit M4 holds no water. The Clamant knew fully well his length of probation, fulfilled same, knew the entire length of his service but chose to tender his resignation before the stipulated time. The resignation is mischievous and an attempt to be clever by half. Furthermore, the Courts have consistently reiterated that the Armed Forces Act is a binding Act which regulates primarily, the persons subject to service law. IBRAHIM vs. NIGERIAN ARMY (2015) LPELR-24596(CA); CHIEF OF NAVAL STAFF vs. OKPANACHI (2022) LPELR-58273(CA), the Claimant being subject to the service law and the Armed Forces Act, ought to have tendered his resignation in strict compliance with the provisions of the laws and regulations he is subject to.

By Section 32 of the Armed Forces Act, 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 resignation. See MOHAMMED vs. NIGERIAN ARMY COUNCIL (2021) LPELR-53390(CA); SHAKS vs. CHIEF OF AIR STAFF (2018) LPELR-45277(CA).

It is clear from the evidence led that the Claimant’s resignation was refused, this is established by Exhibit M9 and the resignation of the Claimant violates the provisions of the Section 32 of the Armed Forces Act.

It is also in evidence that upon refusal of the resignation of the Claimant, he continued in the employment of the Defendant, carrying on duties in Exhibit M20 and M21. The Claimant clearly understood the effect of the refusal of his resignation; hence, he remained in service from May, 2023 to October, 2023 when he applied for annual leave.

On whether the Claimant’s character was defamed, Counsel submitted that upon the refusal of the Claimant’s resignation as evidenced by Exhibit M9 and the outcome of the Claimant’s meeting as contained in paragraph 25 of his oral evidence in chief, he continued to serve under the Defendant and applied for annual leave in accordance with Exhibit M4.

Paragraph 19.01 of Exhibit M4 regulates annual leave and it states that: “The leave year is from 1 Jan to 31 Dec of every year. Officers shall compete their privileged leave within the leave year. A total of 30 working days may be granted to serving officers annually”, As a serving officer of the Defendant, the Claimant applied for annual leave as evidenced by Exhibit M14.

By Exhibit M16 the Claimant did not return as at when due, hence, he was declared as Away Without official Leave (AWOL) in line with paragraph 19.01 of Exhibit M4.

The contention of the Claimant is that Exhibit M was posted in a WhatsApp group and hence defamatory, that this contention is grossly misconceived. The Claimant’s character was not defamed in anyway having applied for 30 days working leave as a serving officer and failed to return to service after the expiration of the leave.

Further that Claimants reliefs in l, m, n, o of the statement of facts must fail since his character was not defamed by Exhibit M16 that declared him AWOL in compliance with Exhibit M4.

On whether the Claimant proved his monetary claims against the Defendant, Counsel submitted that some of the monetary claims of the Claimant are founded on Exhibit M5, the Manual of Financial Administration for the Armed Forces of Nigeria, 2017, that the Defendant has demonstrated under Issue One that same is inadmissible and ought to be expunged from the records of the Court. The claims are therefore unfounded and liable to fail since something cannot be placed on nothing and be expected to stand. MACFOY V. UAC (1962) 1 AC 100.

On the claim for Counsel’s fees, Counsel submitted that it is the law that a claim for Counsel’s fee which does not form part of the cause of action is not one that can be granted. DHL INTERNATIONAL LTD V. EZE UZOAMAKA (2020) 16 NWLR (PT.1751) 4459, MICHAEL V. ACCESS BANK (2017) LPELR 42981. The Claimant on whom the burden lies to prove this relief has failed to lead evidence to show that this claim forms part of the cause of action, Also that it is unethical for a litigant to pass the burden of his legal fees to his opponent. GUINNESS NIGERIA PLC V. NWOKE (2000) 15 NWLR (PT. 689) 135.

Arguing issue one of the Claimants final address, Counsel submitted that Section 306 (1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) empowered the Claimant to resign from his service/employment with the Defendant. Effectively, the Claimant’s resignation is lawful, and the Defendant has no legal right/power to refuse the Claimant’s resignation.

That Section 306 (1) & (2) of the 1999 Constitution is very clear and unambiguous. The import of the provision is that any person who is either appointed or elected or selected to any office established by the 1999 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. In effect, the employer/authority receiving the resignation has no input to make, nor a discretion to refuse the resignation.

Simply put, whether the authority/employer accepts the resignation or not, the appointment stands terminated the moment letter of resignation is received by the authority/employer.

That this interpretation of section 306 of the Constitution has received judicial stamp of confirmation in a plethora of cases involving the public service including the Nigerian Air Force which is the defendant in this case. 

In Onukwubiri v. Ibeakanma (2014) LPELR 23804 (CA), the Court of Appeal aptly held:“If by Exhibit C which is the letter/application for voluntary retirement, the said application was received on the 14th of July 2000 by the Custom Service, then by the provision of section 306(2) of the Constitution of the Federal Republic of Nigeria 1999 which is the grund norm of this nation, then the 1^st Respondent was deemed to have resigned on the 14^th of July, 2000… It is not necessary for the person to who it is addressed to reply that the resignation has been accepted”

The above decision of the Court of Appeal has been followed by the NICN. Interestingly, this issue relating to the resignation under section 306 (1) & (2) of the constitution has been decided against the Defendant in at least 2 cases the latter of which is as recent as just 2 months ago. The first case on this point is SUIT NO: NICN/ABJ/117/2023- ELKANAH JOHN GARANG V. THE CHIEF OF AIR STAFF & ANOR, a case that is practically similar to this case. The issue in GARANG V. THE CHIEF OF AIR STAFF was whether the Claimant, who was medical practitioner and was commissioned officer of the Defendant could resign from his employment with the Defendant. 

In resolving the issues in GARANG V. THE CHIEF OF AIR STAFF, this Honourable Court had to interpret and apply section 306 (1) & (2) of the 1999 Constitution. Directly, this Honourable Court in confirming the Claimant’s right to resign in Garang v. The Chief of Air Staff found as follows:

“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.

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 2^nd defendant on 4^th July 2014. Being commissioned, in simple English, means the claimant was employed by the 2^nd 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 2^nd defendant is an office or body established by the Constitution. Thus, the claimant being employed into the 2^nd defendant derived a right from section 306 [1] and [2] of CFRN 1999 to resign from the employment at any time he desired.”).

Again, that this Honourable Court in GARANG V. THE CHIEF OF AIR STAFF further affirmed the principle that military service is not slavery and as such, the Defendant cannot force the Claimant to work for it.

Also, that as recent 

as March 4, 2025, the Abuja Judicial Division of this Honourable Court followed this same reasoning and decided the issue of resignation against the Defendant in SUIT NO: NICN/ABJ/364/2024- TSARO IGBARA TUAMENE GODSWILL V. THE CHIEF OF AIR STAFF & THE NIGERIAN AIR FORCE. In this case involving a non-commissioned officer of the Nigerian Air Force, who applied for a voluntary discharge, the Court held at para 49 as follows:“Exhibit B of the Claimant shows that the defendants received the claimant’s application for voluntary discharge. Like pointed out by Anuwe J in Garang (supra), the claimant in the instant case likewise stands discharged as soon as the application for voluntary discharge was received by the defendants’ authorized person to receive it. I so find.

That beyond these cases having particular bearing on resignation from the service of the Nigerian Military, the jurisprudence of the Supreme Court and the Nigerian labour courts has been to the effect that an employer lacks the power to reject/stop the resignation of an employee, see IBRAHIM V. ABDALLAH (2019) 17 NWLR (PT.1701) 293, OSHO V. ADELEYE (2024) 8 NWLR (PT.1941) 431.

Counsel submitted that to tie these laws to the facts of this case, the Claimant at para 14 and 15 of the statement of facts pleaded that he by Exhibit M7- the letter dated and received by the Defendant on 29 March 2023, resigned from the Defendant effective 31 July 2023. At para 7 of the Statement of Defence, the Defendants admits that it indeed received Exhibit M7. It is thus submitted according to section 306 (2) of the constitution and the above cited case laws, that the Claimant’s resignation took effect upon the Defendants receipt of Exhibit M7. The resignation stands notwithstanding the Defendant’s illegal attempt to refuse the resignation. 

That contrary to the Defendant’s arguments in its Final Written Address, the Harmonised Terms and Conditions of Service for Officers- 2017 (Revised) [HTACOS] [Exhibit M4], does not contain any provision that prevents the Claimant from resigning his employment with the Defendant and this was confirmed by the Defendant’s witness during the trial proceedings of this case, that even if the HTACOS precluded the Claimant’s resignation, it would be contrary to the section 306 of the 1999 Constitution and thus null and void pursuant to section 1(3) of the 1999 Constitution. It is in light of this that the claimant submits that purported attempt to prevent the Claimant from resigning is unconstitutional, null and void.

The law is settled that in the interpretation/construction of statutes, the express mention of something is to the exclusion of others. Contrary to the Defendant’s assertion, paragraph 06.05 of the HTACOS does not contain any provision, express or implied, that precludes the Claimant from resigning, see AFRICAN INVORY INS. CO. LTD V. COMM FOR INSURANCE (1998) 1 NWLR (PT.532) 50.

More importantly, that the Defendant’s reliance on paragraph 06.05 (a) and (b) of HTACOS is misplaced because the length of service of an officer of the Direct Short Service Commission (DSSC) in that provision does not prevent such an officer from resigning his commission before the expiration of the commission. This Honourable Court is referred to page 137, paragraph 12.08 of the Manual of Financial Administration (Exhibit M5), which clearly provides as follows:“All commissioned officers may be allowed to resign, withdraw or retire at any time on application in writing. However, the approval for such retirement is at the prerogative of the service council/board”.

In unpacking this provision, it becomes clear that it has never been the intention of the service or the HTACOS to prevent resignation as is being argued by the Defendant. In fact, it becomes clear in light of this provision that the Defendant’s refusal of the Claimant’s resignation is dishonest, malicious, clandestine and exploitative. Certainly, the Defendant knows that nowhere in its books can an officer be prevented from resigning. In fact, its books clearly states that officers can resign at any time, the Defendant may seek to argue that the service has a prerogative. However, it must be recalled that the section 306(1) and (2) of the 1999 Constitution provides for an unfettered right of resignation. Even in the event of a strict interpretation which is impossible in this instance, the prerogative is stated therein to be limited to retirements and clearly does not extend to resignations. The point remains, at no point at all was it ever envisaged by the drafters of the HTACOS that an officer will be unable to resign.

Furthermore, the Defendant’s argument on the application of section 32 of the Armed Forces Act (AFA) must fail on several grounds:

Firstly, because the Claimant was a commissioned officer. He was not merely enlisted by the Chief of Air Staff, but commissioned by the President of Nigeria vide Exhibit 1.  The Defendant neither pleaded nor laid any evidence purporting that the Claimant was enlisted. The Defendant is thus precluded from relying on section 32 of the Armed Forces Act, as it relates only to enlisted persons. Commissioned officers are not enlisted but commissioned. Enlisted persons are otherwise known as “other ranks” or “airmen”. They do not bear a presidential commission. It is in fact an insult for the Defendant to refer to the Claimant as merely enlisted. The Claimant has tendered both Exhibits M1 and M2 in proof of his commission. The Defendant has neither pleaded nor tendered any evidence showing that the Claimant was enlisted.

Secondly, because the Claimant case is not hinged on any discharge but on the legal right to resign. The Honourable Court is invited to peruse all the pleadings in this case. Nowhere does any issue of discharge arise. The Defendant is merely attempting to mislead the Court by deliberately convoluting issues. Indeed section 32 of the Armed Forces Act does not apply to the Claimant’s case.

Thirdly and in any event, because the Defendant’s contention contravenes section 306 of the 1999 Constitution which empowers the Claimant to resign from his commission. This same argument was advanced by the Defendants in both GARANG V. THE CHIEF OF AIR STAFF above and TSARO IGBARA TUAMENE GODSWILL V. THE CHIEF OF AIR STAFF & THE NIGERIAN AIR FORCE above. In those cases, this Honourable Court resolved these issues against the Defendant, which interestingly is also the Defendant in this case. It is thus surprising and disingenuous that the Defendant again in this case, raises an issue that has been decided against it. The court in TSARO IGBARA TUAMENE GODSWILL V. THE CHIEF OF AIR STAFF & THE NIGERIAN AIR FORCE above came to the same conclusion that even in a case of discharge, section 306 supersedes the provisions of section 32 of the Armed Forces Act. It is to be noted that the Claimant in this case was not a commissioned officer like the claimant in this present case, but an enlisted Airman. Notwithstanding, the court upheld section 306(1) and (2) of the constitution and held that even in a case of discharge, the constitution prevails over section 32 of the Armed Forces Act. 

Based on the preceding argument, the Claimant submits that section 32 of the AFA does not apply to him, and even if assumed (without conceding) that it does, it remains subject to the provision of the section 306 (1) & (2) of the 1999 Constitution which grants an unfettered right to resignation.

Quite shocking is the fact the Defendant’s reliance on section 32 of the AFA seeks to override the effect of section 306 of the 1999 Constitution and that is untenable in law. The law is firm that any law that is inconsistent with the 1999 Constitution shall be void to the extent of its inconsistency, see also SARAKI V. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR 40013 (SC).

That in all, the Defendant’s purported rejection of the Claimant’s resignation is unlawful and an abuse of power, and as has been held by this court, amounts to forced labour. By law, the Defendant has no right to reject the Claimant’s resignation and force him to continue work.

Arguing issue two, Counsel submitted that the Court is bound to take Judicial Notice of the HTACOS & MAFA, that the HTACOS and MAFA are subsidiary legislation made pursuant to the provisions of the Armed Forces Act.

The HTACOS was made by the President of the Federal Republic of Nigeria pursuant to section 26 of the Armed Forces Act, as page i of the HTACOS will show, it was signed by President Muhammadu Buhari President, Commander in Chief of the Armed Forces of Nigeria on the 9^th day of March 2017. As has become the subject of this case, the HTACOS covers all the matters listed at section 26 of the AFA. To wit: the commissioning of officers, the terms and conditions of their service, retirement, resignation and other matters.

The MAFA was made by the President pursuant to section 203 of the AFA, As page i of the MAFA shows, it was signed by President Muhammadu Buhari President, Commander in Chief of the Armed Forces of Nigeria on the 26^th day of January 2018, covering the matters listed at section 203 of the AFA. In fact, at paragraph 6 of the Defendants Statement of Defence, the Defendant admits to the MAFA being the “Pay Regulations”, the same language used section 203 of the AFA. See Section 122(1) and 122 (a) of the Evidence Act.

That even the Defendant concedes that HTACOS and MAFA (Exhibits M4 and M5) are subsidiary legislations when it submits at paragraph 4.2 of its final address that “The documents marked as M4 and M5 are subsidiary legislations that regulate the affairs of the officers under the defendant.” This being the case, it is surprising that the Defendant argues that they should not be acted upon, when the law imposes a duty on the Honourable Court to take judicial notice of them. And to aid the court in sighting the Exhibits 4 and 5, the Claimant has produced them to the Honourable Court as required by law. See SPDC (NIG) PIC V. DINO (2007) 2 NWLR (PT.1019) 438 AT 461, PARAS. F-H.

That it is pertinent to note that the Defendant has not impugned the authenticity of Exhibits M4 and M5. In fact, the Defendant cross-examined the Claimant on the same documents and relied extensively on several provisions of the same documents in its final address, that the Court is urged to peruse the Defendant’s entire defence in this matter and will find that the crux of its defence is on the HTACOS which it failed to produce despite the claimant’s repeated notice to produce same.

The Claimant submits that the Defendant’s arguments in paragraphs 4.1 - 4.4 of their final written address on the point that the HTACOS [Exhibit M4] and MAFA [Exhibit M5] are inadmissible must fail because the HTACOS and MAFA are not by any means public documents, the law is clear that what classifies a document as a public document are: i) its availability for public inspection and ii) the fact that the document was originated to give the public easy access. In NORTHWEST ENERGY (NIG.) LTD V. IBAFON OIL LTD (2015) 16 NWLR (PT.1484) 1, the Court of Appeal found at page 14, lines F-G that: “Classification of public document stands on two conditions which must co-exist: a) its availability for public inspection; and the fact that it was made or brought into (b) existences for that purpose.”, see also, GOV. OF EKITI STATE V. OJO (2006) 17 NWLR (PT.1007) 95, and to further bring this point home, the Court is referred Exhibit M2, which is the Notification of commission, paragraph 3 of which reads:“3. Information regarding reserve liability, resignation and retirement is contained in the Harmonised Terms and Conditions of Service for Officers- 2017 (Revised).”

Exhibit 2 clearly embeds the HTACOS into the Claimants contract of employment, thus making it content a private contract between Defendant and Claimant. The Court is also invited to look at paragraph 16.02 of Exhibit 4 (HTACOS) which states:“Details of harmonised allowances for officers as promulgated in the Armed Forces of Nigeria Manual of Financial Administration shall apply.”

Indeed, the MAFA (Exhibit M5) is also embedded as part of the private contract between the parties. It is therefore misconceived for the Defendant to posit both documents to be public documents. They are both private contracts/documents between the parties, and this honourable Court is urged to so hold.  The above quoted dictum from GOV. OF EKITI STATE V. OJO (2006) 17 NWLR (PT.1007) 95 becomes apposite here. At page 129, lines B-D that, the Court of Appeal said:“… It is not the law that because the employer happens to be the government, the only copy of an employee’s letter of appointment or the letter revising his terms of employment which can be admitted is the certified true copy of the letter of employment or the revised terms of employment. In the instant case, exhibits “O” and “P” were not public documents.”

Counsel submits in addition, that HTACOS and MAFA are not public documents because they restrict the public from having access to the documents and more specifically, the HTACOS and MAFA were not promulgated for the public’s access. Directly, all the pages in the HTACOS and MAFA contains the word: “RESTRICTED” and the following is on the front page of the HTACOS and the MAFA:“The information given in this manual should not be communicated either directly or indirectly to person(s) not authorized to receive it.”

More importantly, clause 3 of the Preface to the HTACOS and MAFA states that the HTACOS is a restricted publication that should not be passed to unauthorized persons. 

Counsel submitted that by the introductory sentence on the front page of the HTACOS and MAFA, the consistent use of the word: RESTRICTED on every page in the HTACOS and MAFA, and by Clause 3 of the Preface to the HTACOS and MAFA, the HTACOS and MAFA are not public documents as envisaged by the Evidence Act.

Essentially, it is not every document that is promulgated by a Government Institution that is a public document, the HTACOS and MAFA are restricted subsidiary legislations that are strictly restricted to members of the armed forces and not accessible to the public as public documents. Put simply, based on the wordings of the HTACOS and MAFA, the HTACOS and MAFA were not put in place/promulgated for public accessibility and inspection and can thus not be classified as public document, see ENILOLOBO V. N.P.D.C LTD (2019) 18 NWLR (PT.1703) 168, AMADU V. YANTUMAKI (2011) 9 NWLR (PT.1251) 161, THE COURT OF APPEAL AT PAGE 185, LINE A-B.

Based on the restrictive wordings of the HTACOS and MAFA and the fact that the HTACOS and MAFA are inaccessible to the public, counsel implores this honourable Court to hold that the HTACOS and MAFA are not public documents, but a part of the private contract of employment between the parties.

On the HTACOS and MAFA being properly received as evidence, Counsel submitted that the law is settled that the service of a notice of produce on an adverse party entitles the other party to tender the secondary evidence of the document in question, see section 91 of the Evidence Act and NWEKE V. STATE (2017) 15 NWLR (PT.1587) 120, THE SUPREME COURT FOUND THAT PAGE 140, LINES B-C, ABIMBOLA V. THE STATE (2021) 17 NWLR (PT.1896) 399.

By paragraphs 4 and 5 of the Claimant’s Reply, the Claimant gave the Defendant Notice to Produce the HTACOS and MAFA. In effect, the tendering of secondary copies of the HTACOS and MAFA is permissible by law. Effectively, the photocopy of the HTACOS and MAFA tendered by the Claimant are admissible.

OLUSILE V. MAIDUGURI METRO. COUNCIL (2004) 4 NWLR (PT. 863) 290.

That based on the arguments submitted above, the Defendant’s arguments on the alleged inadmissibility of the HTACOS and MAFA has no leg to stand on and must thus fail because the HTACOS and MAFA are not public documents and also because the Claimant gave the Defendant Notice to Produce the original copies of the HTACOS and MAFA.

Counsel urged this honourable Court to discountenance the Defendant’s arguments on the inadmissibility of the HTACOS and MAFA, and rely on them in granting the claimant’s claims.

Arguing issue three of the Claimants final address, Counsel submitted that the Defendant’s failure to pay the Claimant his entitlement is unlawful: that the Manual of Financial Administration for the Armed Forces of Nigeria 2017 (MAFA) {Exhibit M5} is the guidelines for the financial entitlements of personnel of the Nigerian Armed Forces. To explain the import of the MAFA, the certification page of the MAFA at the introductory page of the MAFA reads as follows: “CERTIFICATION MANUAL OF FINANCIAL ADMINISTRATION FOR THE ARMED FORCES OF NIGERIA

The need to harmonise all procedures, practices, principles and peculiarities with a view to ensure prudent, transparent and efficient financial administration informed the formulation of a uniform Manual of Financial Administration (MAFA) for the Armed Forces of Nigeria (AFN).

1. The MAFA contains details of allowances and other financial entitlements of personnel in Service and on retirement. It also provides guidelines for financial planning that ensures effective and efficient financial management along standard best practices in order to achieve optimum performance of the AFN through adequate remuneration of personnel. Thus, the MAFA has addressed major areas of welfare concerns for personnel of the AFN
2. Consequently, the Armed Forces Council approved the implementation of the Manual of Financial Administration for the Armed Forces of Nigeria with effect from this 9 day of November 2017,”

That as earlier canvassed, the MAFA formed part of the terms and conditions of the Claimant’s service. The Defendant was thus bound to pay the Claimant his allowances thereunder. By MAFA, the Claimant was entitled to the following allowances pleaded and claimed at paragraphs 29  and 68(h) of the Statement of Defence respectively; to wit:

       “Professional Allowance: Professional Allowance is payable to military personnel who possess professional qualifications from recognized professional bodies in Nigeria. The professional body must be established by an Act of the National Assembly. The rate is N150,000 monthly and shall be paid along with salaries....”

“Pay of Higher Rank: An officer shall be granted pay of higher rank when performing the duties of a higher rank for a period not less than 21 Consecutive days. Such an officer shall earn in addition to his salary, the full difference between his actual pay and the initial pay of the next rank above his substantive rank…”

“Commissioning Allowance: Commissioning Allowance shall be paid on commission along with officers’ initial salary. The rate payable is 10% of annual salary on step 5 of CONAFSS.”

“Outfit on Commission Allowance: On commission, an officer shall be granted Outift on Commission Allowance once. The prevailing rate is N500,000: 00 per officer.”

5. Plain Cloth/Outfit Allowance: By Paragraph 06.04 (hh) of MAFA, on page 75 of MAFA, the Claimant is also entitled to a Plain Cloth/Outfit allowance at the rate of 5% of annual Consolidated Armed Forces Salary Structure (CONAFSS) on step 5 of his Flying Officer rank, payable to him for being a military lawyer, which has also not been paid to him. That is N123,220.95 (One Hundred and Twenty-Three Thousand, Two Hundred and Twenty Naira, Ninety-Five Kobo) per annum multiplied by four (4) years and five (5) months = N544,225 (Five Hundred and forty-four Thousand, Two Hundred and Twenty-six Thousand Naira). By the foregoing, the Defendant is also owing the Claimant the sum of N544,225 (Five Hundred and forty-four Thousand, Two Hundred and Twenty-six Thousand Naira) as his Plain Cloth/Outfit Allowance. For easy reference, Paragraph 06.04 (hh) of MAFA, on page 75 of MAFA, reads as follows:
6. “Plain Cloth/Outfit Allowance: This Allowance is payable monthly to personnel of Intelligence Corps and Military Lawyers. The rate payable is 5% of annual CONAFSS on step 5 of the respective rank…”
7. Packing on Posting Allowance: By Paragraph 06.04 (a) of MAFA, on page 64 of MAFA, the Claimant is entitled to a packing on posting allowance which the Defendant has refused to pay him till date. Directly, the Claimant was posted twice by the Defendant in the following circumstances: i) Kaduna through Borno, through Zamfara to Adamawa in June 2020 and ii) From Adamawa to Lagos in January 2023. By the foregoing, the Defendant is owing the Claimant the sum of N246,440 (Two Hundred and Forty-Six Thousand, Four Hundred and Forty Naira). For easy reference, Paragraph 06.04(a) of the MAFA, on page 64 of MAFA, reads as follows:
   1.  Packing on Posting Allowance: Packing allowance on posting is payable to personnel who are posted from one duty station to another. This allowance is to be paid only where official transport is not provided. It cannot be claimed more than once in a year by personnel irrespective of postings, and it is not applicable to personnel posted within the same location. Personnel posted for courses are not entitled to packing allowance. The rates applicable are 5% of annual CONAFSS on step 5 of respective ranks.”
8. Terminal Leave Allowance: By Paragraph 06.04 (ll) of MAFA, at page 76 of MAFA, the Claimant states that he is entitled to a Terminal Leave Allowance, which is three (3) months’ salary, upon his disengagement from the Defendant, which the Defendant has failed/refused to pay to him. By the foregoing, the Defendant is owing the Claimant the sum of N616,101.75 (Six and Sixteen Thousand, One Hundred and One Naira, Seventy-Five Kobo). For easy reference, Paragraph 06.04 (ll) of MAFA, at page 76 of MAFA, reads as follows:

   “ll. Terminal Leave Allowance: Terminal Leave Allowance shall be paid to personnel retiring/disengaging from Service. The rate payable is three (3) months’ salary of the affected personnel.”

“b. Terminal Packing Allowance: Terminal Packing Allowance shall be paid to personnel on retirement/discharge from Service. This is to facilitate disengagement from barracks immediately on retirement. The rate applicable shall be 10 per cent of annual CONAFSS on step 5 of the respective ranks.”

“aa. First 28 Days Allowance: This allowance Is payable to personnel on posting that Involves movement to a location beyond 40km. The rates are:

(4)      2lt - Capt and equivalent (that Is Second Lieutenant to Captain) - N560,000.”

Counsel submitted that by the above, the Defendants failed to pay the total sum of N13,129,648 (Thirteen Million, One Hundred and Twenty-Nine Thousand, Six Hundred and Forty-Eight Naira) due to the Claimant as his allowance under the MAFA, that the law is settled that employees are entitled to their employment benefits, see  N. B. C PLC. V. EDWARD (2015) 2 NWLR (PT.1443) 201, ULEGED V. THE MIL ADMIN OF BENUE STATE (2001) 2 NWLR (PT.696) 73.

Counsel therefore submits that the Defendant is bound to pay the Claimant the sum of N13,574,648 (Thirteen Million, Five Hundred and Seventy-Four Thousand, Six Hundred and Forty-Nine Naira) based on the provisions of the MAFA and settled position of the law which guarantees that employees are entitled to their emoluments.

Further, the Claimant pleaded at paragraph 30 of the Statement of Claim that the Defendant made several deductions from his salary/emolument without giving the Claimant his pay slip or accounting for same. At paragraph 31 and 32 of the Statement of Claim also, the Claimant pleaded that he is entitled to his terminal benefits which the Claimant must account for and pay. Hence the claim at paragraphs 68(i) and (j) of the Statement of claim. The Defendant admitted these pleaded facts at paragraphs 24 and 25 of its Statement of Defence, that having effectively resigned, the Claimant is entitled to be paid his accrued terminal benefits as admitted which the Defendant has refused to pay him till date. 

It is further submitted that the Defendant is liable to and should be ordered to make a full and detailed account of the claimants’ benefits and all the deductions made from the claimant’s pay and pay same over to the Claimant.

Counsel argued that it is important to note that in the face of the claimant’s overwhelming evidence, the Defendant neither pleaded nor led any evidence showing the payment of the claimant’s claimed emoluments, allowances or benefits. Also, the Defendant’s only reason for urging the Court to refuse the claimant’s entitlements is hinged on its argument that the MAFA (Exhibit 5) is inadmissible. As has been shown however, Exhibit 5 is properly before the Honourable court, therefore the Defendant in essence has no valid case or argument against an order to account for and pay of the claimant’s benefits, Counsel therefore invites this Honourable Court to resolve this issue in the Claimant’s favour by granting the Claimant’s relief in paragraph 68 h, i and j of the Statement of Facts.

Arguing issue four, Counsel submitted that the resolution of this issue is hinged on the court finding that the Claimant effectively resigned vide Exhibit M7. So that having effectively resigned, the Claimant could not have been absent without leave. Therefore, any publication to that effect would be nothing but defamatory, that the Defendant’s act of publishing Exhibit M16 and sending same to all Nigerian Air Force units and personnel within and outside Nigeria is defamatory of the Claimant. The Claimant pleaded at paragraph 61 of the Statement of Facts that the libelous document has been further been republished 113 times by the Defendant. In fact, the Defendant wholly admits at paragraphs 46 and 48 of the Statement of Defence that it indeed made the publication which is subject matter of this suit, and that it is important to note that AWOL is an offence under section 59 of the Armed Forces Act (AFA) and is punishable by imprisonment for a term not exceeding two (2) years. 

The law is settled that the basis of the tort of defamation is that every person has a right to the protection of his good name, reputation and the estimation in which he stands in the society of his fellow citizens. Therefore, anybody who publishes anything injuring that good name, reputation or estimation commits the tort of libel (if written) and slander (if oral). See SKETCH V. AJAGBEMOKEFERI (1989) 1 NWLR (PT.100) 678 for the basis of the tort of defamation.

Furthermore, that in SKETCH V. AJAGBEMOKEFERI above, the Supreme Court found that:

     “In an action for libel, the onus is on the plaintiff to prove-

1. That the defendant published in a permanent form a statement;
2. That the statement referred to the plaintiff;
3. That the statement conveys a defamatory meaning to those to whom it was published; and
4. That the statement was defamatory of the plaintiff in the sense that: i) it lowered him in the estimation of right-thinking members of the society; or ii) it exposed him to hatred, ridicule or contempt; or Iii) it exposed him to hatred, ridicule or contempt; or iii) it injured his reputation in his office, trade or profession; or iv) it injured his financial credit”

Counsel submit that the Claimant has proved all the conditions to justify the grant of the damages for the Defendant’s defamation of his character. Specifically, the Claimant has shown that:

1. The Defendant published the Exhibit 16 and republished that the Claimant was absent at least 113 times. See paragraphs 50 to 61 of the Statement of Facts which the Defendant wholly admitted.
2. The statement specifically published by the Defendant direct referred to the Claimant by name and it stated that the Claimant committed the offence of AWOL. For easy reference, the Defendant’s AWOL message (See Exhibit M16] reads as follows:

     "TEXT: ABSENCE WITHOUT LEAVE-OFFICER. FLYING OFFICER M ANJOLAIYA (NAF/4868). ABOVE-NAMED OFFICER WAS GRANTED YEAR 2023 ANNUAL LEAVE TO REPORT ON 29 NOV 23. UPON EXPIRATION OF HIS LEAVE, OFFICER FAILED TO REPORT FOR DUTY. OFFICER WAS CONTACTED BUT FAILED TO REPORT. CONSEQUENTLY, OFFICER IS HEREBY DECLARED ABSENT WITHOUT LEAVE WITH EFFECT FROM 29 NOV 23. APPREHEND OFFICER IF SEEN IN YOUR LOCATION AND RETURN TO UNIT UNDER ESCORT FOR DISCIPLINARY ACTION. 051 PERSONNEL MANAGEMENT GROUP AND O81 PAY AND ACCOUNTING GROUP ARE PLEASE REQUESTED TO UPDATE RECORDS WHILE UNITS ARE TO EFFECT ROUTINE ORDER PUBLICATION FOR GENERAL AWARENESS. GRATEFUL//”

The statement published by the Defendant conveys a defamatory meaning to those whom it was published because it portrays the Claimant to his peers as an irresponsible person that has committed a crime and abandoned his duty.

In SKETCH V. AJAGBEMOKEFERI above, the Supreme court found that: “Where words are defamatory in their ordinary sense, the plaintiff need prove no more than that they were published; he need not call witnesses to prove what they understood by the words nor will it be open to the defendant to call any number of witnesses to say that they did not believe the imputation. The only relevant question in such circumstances is: might reasonable people understand, them in a defamatory sense?”

See also ABALAKA V. AKINSETE (2023) 13 NWLR (PT.1901) 343, THE AT PAGE 368, LINES C-D, ODUWOLE V. WEST (2010) 10 NWLR (PT.1203) 598.That the Claimant has shown himself to be a lawyer of more than a decade, a former military officer with an unblemished record, including commendation for excellence in military combat. There is no justification for the manner that the Defendant has treated the Claimant. 

Further, that at the time the Defendant published Exhibit M16, it knew without a doubt that the Claimant had resigned his position. The Honourable Court is invited to look at Exhibit M15 which properly advised the Defendant of the state of events, and which the Defendant acknowledge. The Defendant’s publication was thus malicious and or negligent.

Arguing issue five, Counsel submitted that the Defendant’s unlawful actions justify that this Honourable Court grant the Defendant’s relief for exemplary/punitive damages. The law is clear that exemplary damages is designed to punish a defendant for an abhorrent behaviour or conduct. Exemplary/punitive damages is further to punish a willful and intimidating conduct which prima facie is not only aberrant but oppressive, arbitrary and unconstitutional conduct of a defendant. Put simply, exemplary/punitive damages are designed to teach the defendant some hard lesson for the unusual and unexpected inhuman or outrageous conduct so that the conduct is not repeated by the defendant, see ONAGORUWA V. IGP (1991) 5 NWLR (PT.193) 593.

Also, that it is to be stated upfront that the Defendant does not make any case in its final address against the grant of exemplary damages. Directly, counsel submits that this is an ideal case for the grant of exemplary/punitive damages against the Defendant due to the following unlawful and unconstitutional actions of the Defendant as pleaded at paragraph 46 of the Statement of Claim as well as the generality of the Statement of Claim. These include:

1. Illegally declining the Claimant’s resignation and imposing forced labour on the Claimant after he lawfully resigned from the Defendant, contrary to section 306 of the 1999 Constitution;
2. Victimizing the Claimant for deciding to resign by forcing him to do additional work which is termed extra/punishment duty (PD) after his resignation and without being tried or convicted for any offence in total violation of the Claimant’s fundamental right to dignity guaranteed under the section 34 of the 1999 Constitution. See also paragraph 27 of the Statement of Claim and Exhibits 20 and 21. 

For avoidance of doubt, section 115 (1) (a) (ii) of the Armed Forces Act provides that an officer of the Claimant’s former rank (being below army captain) can be punished with extra duty or punishment duty only after been charged and tried of a distinctly stated offence, of which he must have had an opportunity to defend. The Defendant thus acted unconstitutionally, illegally, arbitrarily and oppressively, by breaching the Claimant’s right to dignity (forced labour) under section 34 of the 1999 constitution and his fundamental right to fair hearing under section 36 of the Constitution.

Willful and intentional failure/refusal to pay the Claimant’s allowances guaranteed by the MAFA, thereby threatening the Claimant’s survival and ability to effectively provide for his family. It is instructive to note that this failure/refusal began upon the Claimant’s commission and continued until his resignation. See paragraphs 29 and 41 of the Statement of Facts.

3. Refusal/failure to account for and pay the Claimant’s terminal benefits. See paragraph 31 of the Statement of Facts. 
4. Unexplained deductions from his emolument, and failure to account for same or provide the Claimant his pay slip to be aware of understand the deductions. See paragraphs 30 and 32 of the Statement of Facts.
5. Unlawfully and unconstitutionally declaring the Claimant AWOL after he had lawfully resigned from his employment with the Defendant, especially when it knew or ought to have known that the Claimant had effectively resigned.

Counsel submitted that the Defendant’s actions above are unconstitutional and unlawful because they directly contravene sections 34, 36 and 306 of the 1999 Constitution. Directly, the Defendant’s act of declining the Claimant’s resignation and imposing additional work (see: Exhibits M20 & M21) on him after his resignation is forced labour which is expressly prohibited by section 34 of the 1999 Constitution, see OJUYA V. NZEOGQU (1996) 1 NWLR (PT.427) 713, PAGE 723, LINE H and that by section 34 (1) (c) of the 1999 Constitution, it was unlawful and unconstitutional for the Defendant to decline the Claimant’s resignation and to impose forced on him after he resigned and more importantly, after the resignation had taken full effect.

Counsel argued that the Defendant, will in response to the above arguments try to find refuge in section 34 (2) (b) of the 1999 Constitution but it is inapplicable to this case because the Claimant’s duties to the Defendant stopped on 29 march 2023, when he resigned from his service/employment with the Defendant. Effectively, the services/extra punishment duty imposed by the Defendant on the Claimant after his resignation is forced labour and is thus unconstitutional.

Counsel submits that the Defendant’s action of imposing forced labour on the Claimant is unlawful, unconstitutional and deserving of an award of exemplary/punitive damages against the Defendant to deter them from persisting in their unlawful and unconstitutional actions, see WILLIAMS V. DAILY TIMES (1990) 1 NWLR (PT.124) 1, PAGE 30-3. 

Counsel submitted that the denial of the Claimant’s benefit was to deliberately take economic advantage thereof, as the question arises, where is the Claimant’s benefit? Where are the benefits of all the other persons entitled to same? It must be somewhere or with someone. With whom or where is it? 

That in Odiba v. Azege (1998) 9 NWLR (Pt.566) 370, the Supreme Court found at page 382, line F that: “Exemplary damages could be awarded against oppressive, arbitrary and unconstitutional action by servants of government. In this case, the behaviour of the appellant falls within those that would attract exemplary damages.”

Counsel further submits that the Defendant’s unlawful action of intentionally refusing to comply with the MAFA by its failure to pay the Claimant his allowances is oppressive, arbitrary and unconstitutional and is thus deserving for this Honourable Court to award exemplary/punitive damages against the Defendant. This is in view of the fact that the Defendant’s act of refusing to pay the Claimant his allowances directly affected his living standards, survival and threatened is ability to effectively provide for his young family and that to make matters worse, the Claimant’s service with the Defendant affected his physical, psychological and mental health to the extent that he became depressed and developed high blood pressure and insomnia. To corroborate the foregoing, the Defendant’s witness confirmed that she administered some drugs to the Claimant and counselled him on his past traumatic stress disorder and lack of sleep. This is notwithstanding the fact that the Defendant refused to produce Claimant’s medical record after been issued a notice to produce same., therefore the Defendant’s cruel and oppressive actions against the Claimant merits serious punishment from this Honourable Court, see MEKWUNYE V. EMIRATES AIRLINES (2019) 9 NWLR (PT.1677) 191, PAGE 225, LINES D-E.

Counsel therefore submits that the Defendant’s unlawful actions merits punishment and urged this Honourable Court to grant the Claimant’s relief for the award of exemplary/punitive damages in order to deter the Defendant’s unconstitutional and unlawful actions of forcing servicemen to work against their will, while intentionally refusing to pay them their lawful entitlements.

4.

COURT’S DECISION.

I have gone through the processes filed and the argument of Counsel, I have adopted the following issues in resolving this matter as presently constituted-

1. Whether the documents marked Exhibits M4 and M5, Harmonised Terms and Conditions of Service for Officers – 2017 (Revised) (HTACOS) and Manual of Financial Administration for Armed Forces of Nigeria 2017 (MAFA) respectively are inadmissible and ought to be expunged from the records and whether the Honourable Court can properly make use of and rely on: i) the Harmonised Terms and Conditions of Service for Officers- 2017 (Revised) [HTACOS] and ii) the Manual of Financial Administration for the Armed Forces of Nigeria 2017 (MAFA]
2. Whether in view of section 306 (1) & (2) of the 1999 Constitution, was the Claimant’s resignation from the Defendant lawful and effective.
3. Whether the Claimant is entitled to all the reliefs sought.

5.

On whether the documents marked Exhibits M4 and M5, Harmonised Terms and Conditions of Service for Officers – 2017 (Revised) (HTACOS) and Manual of Financial Administration for Armed Forces of Nigeria 2017 (MAFA) respectively are inadmissible and ought to be expunged from the records and whether the Honourable Court can properly make use of and rely on: i) the Harmonised Terms and Conditions of Service for Officers- 2017 (Revised) [HTACOS] and ii) the Manual of Financial Administration for the Armed Forces of Nigeria 2017 (MAFA), the Defendant contends that exhibits M4 and M5 are public documents that must be certified, that even though the Claimant put the Defendant on notice to produce same, it does not waive the requirement of certification.

I agree with the Claimants submission on this issue, as public documents which are subsidiary legislations, the Court is duty bound to take judicial notice of the said documents, also as rightly pointed out, the Defendant has also not impugned on the authenticity of the same documents or their relevance to this matter at hand, in fact a perusal of the Defendants statement of defence will show that the Defendant in paragraphs 6 and 7 agrees that the Harmonised terms and conditions of service for officers 2017 and the Manual of financial administration for the Armed Forces of Nigeria 2017 are applicable to the conditions of service of the Claimant as an officer of the Defendant.

The Defendants objection is without merit and is rejected accordingly, and the Honourable Court can properly make use of and rely on: i) the Harmonised Terms and Conditions of Service for Officers- 2017 (Revised) [HTACOS] and ii) the Manual of Financial Administration for the Armed Forces of Nigeria 2017.

On the second issue, whether in view of section 306 (1) & (2) of the 1999 Constitution, was the Claimant’s resignation from the Defendant lawful and effective, the Claimants assertion is that Section 306(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999(as amended) empowered the Claimant to resign from his service with the Defendant, the Defendants argument is that the Claimant only served for 3 years and did not complete the required 8 years of service before tendering his letter of resignation and that exhibit M4 states the length of service required of an officer before resignation, also that by Section 32 of the Armed Forces Act, the Chief of Air Staff must authorize the discharge of an officer before it is valid.

While not disputing the provisions of the Harmonised Terms and Conditions of Service for Officers – 2017 (Revised) (HTACOS), the Constitution is supreme, where any law or enactment in Nigeria contravenes or is contrary to the provisions of the Constitution, such a Law is dead ab initio, moreso, the Laws relied on by the Defendant do not in anyway stipulate or bar an officer from resigning prior to the time frame stipulated, the claimant has an unconstrained right to resign from his appointment with the Defendant.

In IBRAHIM V. ABDALLAH (2019) 17 NWLR (PT.1701) 293, cited by the Claimant, the Supreme Court at page 315, lines F-G found that:

“Resignation need not be formally accepted before it took effect… A notice of resignation is effective, not from the date of the letter or from the date of the purported acceptance, but from the date the letter was received by the employer or his agent…. Resignation takes effect from the date notice is received by the employer or its agent. Resignation dates from the date notice was received. There is absolute power to resign and no discretion to refuse to accept notice. This issue is resolved against the cross-appellant.”

See also OSHO V. ADELEYE (2024) 8 NWLR (PT.1941) 431.

The Claimants resignation was instituted by Exhibit M7- the letter dated and received by the Defendant on 29 March 2023; the Claimant therefore is deemed to have resigned from the Defendant effective 31 July 2023. At para 7 of the Statement of Defence, the Defendant admits that it indeed received Exhibit M7, the Claimant’s resignation took effect upon the Defendants receipt of Exhibit M7 and I so hold.

Resignation dates back from the date the notice is received. It must be emphasized that where a person has taken steps, he is required by law to take, in this case, submit his letter of resignation, the refusal of his/her employer goes to no issue.

The Defendants letter rejecting the Claimants resignation is invalid, its rejection of his resignation is of no issue and baseless as the moment the Claimants letter of resignation was received, the employee/employer relationship between the two of them had come to an end, see AHMED & ANOR v. INEC & ORS (2023) LPELR-61263 (CA)(Pp 21 - 21 Paras B - C).

Based on the forgoing, I hereby resolve this issue in favour of the Claimant against the Defendant.

On the last issue, whether the Claimant is entitled to all the reliefs sought, it is trite Law that civil cases are won on the preponderance of evidence with the burden of proof being first and foremost on the Claimant to prove his case, see UNION BANK V. RAVIH ABDUL & CO. LTD (2018) LPELR-46333(SC) Per BAGE, J.S.C (Pp. 13-16, paras. D-E).

The Claimant in this suit has sought a declaration that the Claimant's Resignation vide the Letter dated 29 March 2023 is lawful, effective and extant, I have already held above that the Claimants resignation was valid and effective as at the date it was received by the Defendant, this relief is therefore granted as prayed.

On the Claimants relief for a declaration that the Defendant has brazenly breached the Harmonised Terms and Conditions of Service for Officers-2017[Revised][HTACOS], the Manual of Financial Administration for the Armed Forces of Nigeria 2017 (MAFA), and other applicable laws, the Claimant stated that the Defendant has in several regards been in and continues to breach the HTACOS and MAFA by oppressing and victimizing him, also by not paying his emoluments as at when due and owing him for months, while the non-payment of emoluments is a breach of the HTACOS and MAFA, the Claimant has not put any evidence on the other issues that he complains was a breach on the part of the Defendant. 

Again, the refusal of the Defendant to acknowledge the Claimants resignation is outside the powers it has where same contravenes the constitution of the Federal Republic of Nigeria.

Based on the facts presented, I hereby grant this Order as prayed, the actions of the Defendant are in direct contravention of the HTACOS and MAFA.

On the Claimants relief for a declaration that the Claimant is entitled to rescission/resignation from the employment of the Defendant, upon the Defendant's multiple breaches/misrepresentation of the Harmonised Terms and Conditions of Service for Officers-2017[Revised) [HTACOS], the Manual of Financial Administration for the Armed Forces of Nigeria 2017 (MAFA), and other relevant laws, this relief has already been answered it will now be an academic exercise if the Court embarks on same again.

On the Claimants relief for a declaration that that Defendant's purported declination of the Claimant's resignation contained in the letter dated 24 May 2023 is invalid, unlawful and ineffective, same has also been answered above, this relief is granted as prayed.

On the Claimants relief for an order mandating the Defendant to process the Claimant's disengagement, and issue to him, his Certificate of Service, I hereby Order the Defendant to do as the Claimant has prayed, the Defendant will process the Claimants disengagement and issue him his certificate of Service accordingly.

On the Claimants relief for a declaration that the Defendant's failure/refusal to pay the Claimant the allowances due to him under the Manual of Financial Administration for the Armed Forces of Nigeria 2017 [MAFAJ is oppressive, unlawful and unfair, the Defendant in its statement of defence simply stated that it does not owe the Claimant any allowances or emoluments, one would therefore have expected that his pay slips or bank drafts would have been tendered by the Defendant to show payment was made on the allowances claimed, this was not done, based on the lack of proper defence, I hereby grant this relief as prayed.

The Claimant prayed the Court for an order mandating the Defendant to pay to the Claimant, the following overdue unpaid allowances under the Manual of Financial Administration for the Armed Forces of Nigeria 2017[MAFA]:

1. Professional Allowance: By paragraph 06.04 p of the MAFA, in the sum of N7,950,000 (Seven Million Nine Hundred and Fifty Thousand Naira), representing the total of his [N150,000] [One Hundred and Fifty Thousand Naira) 53 months unpaid professional allowance;
2. Higher Rank Pay: By paragraph 06.04 (cc) of the MAFA, in the sum of N2,500,000 (Two Million Five Hundred Thousand Naira)
3. Commissioning Allowance: By paragraph 06.04 [dd) of MAFA, in the sum of N246,441 (Two Hundred and Forty-Six Thousand, Four Hundred and Forty-One Naira].
4. Outfit on Commission Allowance: By paragraph 06:04[ee] of MAFA, in the sum of N500,000 (Five Hundred Thousand Naira).
5. Plain Cloth Allowance: By paragraph 06.04 [hh] of MAFA, in the sum of (Five Hundred and forty-four Thousand, Two Hundred and Twenty-six Thousand Naira].;
6. Packing on Posting Allowance: By paragraph 06.04 [a] of MAFA, in the sum of N246,440 (Two Hundred and Forty-Six Thousand, Four Hundred and Forty Naira;
7. Terminal Leave Allowance: By paragraph 06.04 [ll] of MAFA, in the sum of N616,101.75 (Six hundred and Sixteen Thousand, One Hundred and One Naira, Seventy-Five Kobo];
8. Terminal Packing Allowance: By paragraph 6.04 [b] of MAFA, in the sum of N246,441 (Two Hundred and Forty-Six Thousand, Four Hundred and Forty-One Naira].
9. First 28 Days Allowance: By Paragraph 06.04[aa] of the MAFA, in the sum of N560,000 (Five Hundred and Sixty Thousand Naira).
10. Air flight and Daily Tour Allowance totalling the sum of N165,000 (One Hundred and Sixty-Five Thousand Naira).

The above sums prayed for by the Claimant are all statutory allowances, provided for in the MAFA, as I have said already, the Defendant had a duty to prove payment of same by way of cogent evidence, they failed to do so and relied solely on oral testimony, I herby grant all the reliefs and sums claimed above by the Claimant, the Defendant is Ordered to calculate and pay to the Claimant all the above claimed sums.

On the Claimants relief for an Order mandating the Defendant to account for and pay to the Claimant the totality of deductions made from his emolument with accrued interest thereon, the Claimant states that the defendant deducted National Housing fund, NAF Welfare Insurance Scheme and NAF Benevolent Fund from his salaries, the Defendant has not stated that same was not deducted, again no pay slip has been tendered to counter this, I hereby Order the Defendant to account for and pay to the Claimant all deductions made therein.

On the Claimants relief for an Order mandating the Defendant to account for and pay to the Claimant his terminal benefits in accordance with the Manual of Financial Administration for the Armed Forces of Nigeria 2017 [MAFA], that the allowances the Claimant claimed for have been granted above, I see no other terminal allowance proved by the Claimant.

On the Claimants relief for an Order mandating the Defendant to pay the Claimant General Damages in the sum of N50,000,000 (Fifty Million Naira) for breach of the Harmonised Terms and Conditions of Service for Officers-2017 (Revised) [HTACOSJ, the Manual of Financial Administration for the Armed Forces of Nigeria 2017 [MAFA], and other applicable laws; and for its oppressive and unfair labour practices, the Claimant has not shown the Court how he arrived at this figure or why same should be granted as prayed, I hereby decline this relief.

On the Claimants relief for a declaration that he is not AWOL, the Defendant cannot validly declare the Claimant AWOL after he resigned his commission, the declaration is hereby declared invalid, null and of no effect, this relief is granted as prayed.

On the Claimants relief for a declaration that the Defendant defamed the Claimant, the Claimant has not proved defamation, the court in OMON & ORS V. EKPA (2019) LPELR-47978(CA) Per OGBUINYA, J.C.A (Pp. 19-21, paras. C-B) held that "Defamation has been, judicially, defined to embrace imputations which tend to lower a person's dignity in the estimation of the right-thinking members of the society and expose him, the person so disparaged, to hatred approbrium, odium, contempt or ridicule, see Oruwari v Osler (2013) 5 NWLR (Pt. 1348) 535. There are two species of defamation: libel and slander. Libel is any publication in print, writing, pictures or signs that injures the reputation of somebody. Slander, on the other hand, means a defamatory statement made/conveyed by spoken words, sounds, looks, signs and gestures which injure the reputation of somebody, see Society BIC S.A. v. Charzin Ind. Ltd. (2014) 4 NWLR (Pt. 1398) 497; Oruwari v. Osler (supra). To succeed in an action for defamation, which is actionable per se, the defamed person must conjunctively prove. (1) Publication of the offending words. (2) That the offending words refer to him. (3) That the offending words are defamatory of him. (4) That the offending words were published to a third party. (5) That they are false or lack accuracy and (6) That there are no justifiable legal grounds for the publication of the defamatory words, see Dalumo v. Sketch Publication Co. Ltd. (1972) SSC 308; Ezomo v. Oyakhire (1985) 2 SC221; Onu v. Agbese (1985) 1 NWLR (Pt. 4) 704/(1985) LPELR - 2698 (SC); Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 255; Dumbo v. Idugboe (1983) NSCC 22; Offoboche v. Ogoja L.G. (2001) 16 NWLR (Pt. 739) 458; Iloabachie v. Iloabachie (2005) 13 NWLR (Pt. 943) 695; Sketch Publishing Co. Ltd. v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678/(1989) 1 NSCC 346; Amorc v. Awoniyi (1994) 7-8 SCNJ (Pt. 11) 390; Newspapers Corporation v. Oni (1995) 1 SCNJ 218; Emeagwara Star Printing and Publishing Co. Ltd. (2000) 2 SCNQR (Pt. 2) 910; Mamman v. Salaudeen (2005) 18 NWLR (Pt. 958) 478; Peterside v. Fubara (2013) 6 NWLR (Pt. 1349) 156; Ologe v. New Africa Holdings Ltd. (2013) 17 NWLR (Pt. 1384) 449; Ekong v. Otop (2014) 11 NWLR (Pt. 1419) 549; Mainstreet Bank Ltd. v. Binna (2016) 12 NWLR (Pt. 1526) 316."

The Claimant has not satisfied the provisions enunciated above, I hereby refuse the grant of this relief as prayed.

On the Claimants relief for an order compelling the Defendant to by like means, delete the AWOL Declaration contained in the NAF Message Form dated 07 December 2023 with Originators No: 055CAMP/146, and to further publish the deletion in all routine orders in all NAF units and formations, the Defendant is hereby Ordered to withdraw this Order forthwith and delete the AWOL declaration against the Claimant.

On the Claimants reliefs for an order mandating the Defendant to pay the Claimant Damages in the sum of N250,000,000 (Two Hundred and Fifty Million Naira) for the defamation of his character and mandating the Defendant to pay the Claimant exemplary/punitive damages in the sum of N250,000,000 (Two Hundred and Fifty Million Naira), I make no Orders to this effect, these reliefs are refused accordingly.

On the Claimants relief for an Order mandating the Defendant to pay the Claimant the costs of this action, including counsel's fees, assessed at N10,000,000 (Ten Million Naira), I also make no order for cost of filing this suit.

Lastly on the Claimants relief for an Order mandating the Defendant to pay post-judgment compounded interest on each of and the entire judgement sums at the rate of 20% per annum, I grant this relief only to the extent that if the Defendant fails to pay the judgment sums ordered above within one month of this Judgment same will attract an interest of 10% per annum until fully liquidated.

This is the judgment of this Honourable Court and it is entered accordingly.

 

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Hon. Justice R.H Gwandu

Judge