IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA 

BEFORE HIS LORDSHIP, HON. JUSTICE R.B. HAASTRUP

DATE: 28^TH JULY 2026

SUIT NO. NICN/ABJ/305/2025

BETWEEN:

ABUBAKAR USMAN ………………………………………..…………..……………………...CLAIMANT

AND

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

REPRESENTATION:

M.A. Danmama Esq with M.M. Abubakar for Claimant/Applicant

E.A. Anekwe with F.S. Nwachukwu for Defendants/Respondents

JUDGMENT

 

INTRODUCTION

[1] This action was instituted by means of an Originating Summons Application dated and filed the 3^rd day of October 2025, against the Defendants/Respondents with the following two (2) questions for determination:

 

1. WHETHER OR NOT, THE CLAIMANT HAS A RIGHT OF VOLUNTARY RESIGNATION FROM PUBLIC SERVICE.

2. WHETHER OR NOT, THE CLAIMANT’S LETTER OF VOLUNTARY RETIREMENT IS EFFECTIVE FROM THE DATE OF ITS ISSUANCE/RECEIPT.

 

Where answers to the above questions are in the affirmative, the Claimant then seeks the following Reliefs/Declarations:

 

1. A DECLARATION that the Claimant has a right to voluntary exit from the service of the Defendants.
2. A DECLARATION that the Claimant’s letter of voluntary retirement dated 31^ST MAY 2024, is valid and effective.
3. AN ORDER deeming the letter of voluntary retirement dated 31^ST MAY 2024, as valid and effective.

 

 

 

 

 

 

 

[2] The Claimant’s Application is accompanied with a twenty-seven (27) paragraph affidavit deposed to by the Claimant/Applicant, Exhibits annexed and marked as A – J, with a written address in support, wherein the Applicant’s counsel distilled the following two (2) issues for determination of this Court:

 

1. Whether or not, the Claimant is entitled to voluntarily resign from the service which he voluntarily joined.
2. Whether having regard to the Claimant’s letter of voluntary retirement, viz-a-viz, the acknowledgement of same by the Defendants, the Claimant is still in the service of the Defendants.

 

 

SUBMISSIONS OF CLAIMANT’S COUNSEL

 

ISSUE 1

Whether or not, the Claimant is entitled to voluntarily resign from the service which he voluntarily joined.

 

[3] Learned counsel answered the above question in the affirmative, relying on the Constitution of the Federal Republic of Nigeria (as amended), submitting that same allows for 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 person authorized by that authority or person to receive it. Counsel went on and reproduced Section 306 (2) of the said Constitution, while relying also on ONWUKWUBIRI & ANOR V. IBEAKANMA & ORS (2014) LPELR – 23804(CA), APAMA V. STATE (1982) LPELR – 523(SC) and IBRAHIM V. ABDULLAHI & ORS (2019) LPELR – 48984(SC) amongst others. He submitted that the 2^nd Defendant is a public office established by law and that the Claimant as a public officer has the constitutional right to resign by virtue of the Constitution Federal Republic of Nigeria (CFRN).

 

[4] That assuming without conceding that there exists any law prohibiting or refusing the Claimant or any officer from enjoying his right of resignation, that law is rightly inconsistent with the provisions of the 1999 CFRN, and to the extent of that inconsistency null and void. To buttress his argument on this point, counsel reproduced Section 1(1) of the 1999 CFRN and further submitted that the constitutional provisions stand above all enactments, statutes or laws and its provisions cannot be made subject to any other Act or enactments, having binding force on all authorities including the Defendants. 

 

Counsel continued that the Defendants cannot hide under any legislature to refuse the Claimant his right of resignation, which if allowed, would be tantamount to disregard and disobedience and an affront also to the clear provisions of the Constitution. In aid of his stance, counsel further relied on locus classicus case of A.G BENDEL STATE V. A.G FEDERATION & ORS (1981) LPELR – 605(SC), FRN V. OSAHON & ORS (2006) LPELR – 3174(SC) among others, in urging the Court to so hold. 

 

 

 

ISSUE 2

Whether having regard to the Claimant’s letter of voluntary retirement, viz-a-viz, the acknowledgement of same by the Defendants, the Claimant is still in the service of the Defendants.

 

[5] The above question was answered in the negative. Thereafter counsel submitted that by 31^st May 2024, the Claimant had notified the Defendants of his voluntary exit from service with a letter of voluntary retirement addressed to the 1^st Defendant and forwarded to the authority saddled with such responsibility. That the Claimant’s letter was duly acknowledged by Defendants as evidenced by their letters dated 9^th July 2024, 11^th July 2024 and 12^th July 2024, which automatically gives effect to the Claimant’s letter of voluntary retirement. He relied again on Exhibits A, B, C and D annexed to the Affidavit in support of Originating Summons Application, alongside the cases of SUNDAY V. OLUGBENGA & ORS (2008) LPELR – 4995 (CA), W.A.E.C V. OSHIONEBO (2006) 12 NWLR (PT.994) 258, ONWUKWUBIRI & ANOR V. IBEAKANMA & ORS(SUPRA). These are all to the effect that once a letter of resignation is received, it does not require an acceptance or any form of approval to make it effective.

 

[6] That assuming without conceding that the Defendants are refusing to approve (purportedly) the Claimant’s exit despite his resignation, counsel submitted that such will amount to forced labour, contrary to Section 34 (1) (c) of the CFRN (As amended) and as held in YESUFU V. GOVERNOR OF EDO STATE (2001) 13 NWLR (PT.731) 517. To counsel, the rights and procedure of resignation are constitutional and cannot be altered or taken away by any Act, law or any statute, relying on INEC V. MUSA (2003) LPELR – 24927(SC), MUSA & ORS V. INEC & ORS (2002) LPELR – 11119(CA) and ELKANAH JOHN GARANG V. THE CHIEF OF AIR STAFF & 1 ANOR in SUIT No. NICN/ABJ/117/2023, Per O.Y. Anuwe.

 

[7] In light of the foregoing, counsel urged the Court to grant all of the Claimant’s reliefs as sought before this Court. 

 

COUNTER AFFIDAVIT OF DEFENDANTS AND SUBMISSIONS OF COUNSEL

 

[8] The Defendants/Respondents’ Counter Affidavit is of thirty-five (35) paragraphs and deposed to by one Flight Lieutenant Precious Austin, of the Directorate of Legal Services, Headquarters Nigerian Air Force, Area 7 Garki Abuja. The Counter Affidavit is dated and filed the 24^th February 2026 and accompanied with a written address in opposition to the Originating Summons Application. Learned Counsel for the Defendants/Respondents has in his written address formulated a sole issue for determination of this Court to wit;

 

“WHETHER HAVING REGARDS TO THE RELEVANT PROVISIONS OF THE ARMED FORCES ACT, HARMONIZED TERMS AND CONDITIONS OF SERVICE (HTACOS) OFFICERS AND THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA VIZ A VIZ THE FACTS OF THIS CASE, THE CLAIMANT IS ENTITLED TO THE RELIEFS SOUGHT BEFORE THIS HONOURABLE COURT?

 

[9] Counsel answered the above in the negative, citing Section 26 of the Armed Forces Act. That by Section 218 of the CFRN 1999(As amended) and Section 23 (3) of the Armed Forces Act, the President of the Federal Republic of Nigeria, as the Commander in Chief of the Armed Forces, is statutorily empowered to make regulations governing the commissioning of officers, their terms of service, promotion, retirement, resignation, dismissal and such other matters concerning officers of the Armed Forces as may seem to him necessary. (Emphasis of Counsel). That pursuant to the above, the Harmonized Terms and Condition of Service (HTACOS) Officers, 2017 as signed into law by the President became binding on all personnel of the Armed Forces in Nigeria being the Nigeria Army, Navy and the Air Force, who are sued as 2^nd Defendant in this suit. In support of his stance, he relied on OSADEBAY V. AG. BENDEL STATE (1991) LPELR – 2781 (SC).

 

[10] It is the contention of the Defendants’ counsel that the Claimant’s voluntary retirement from the service of the 1^st Defendant was not in accordance with the extant prescribed procedure, particularly the Harmonized Terms and Conditions of Service of Officers (HTACOS) 2017. Counsel then went on to reproduce item 03:10 (a) of the above thus:

“THE LENGTH OF SERVICE: The length of service applicable to Regular Combatant officers shall be as follows:

(a) An officer shall be eligible to apply to retire if he has served for at least 15 years of commissioned service subject to regulation force.”

 

[11] According to counsel, a regular Combatant Officer of the Nigerian Air Force, as admitted by the Claimant in his paragraph 3 of Affidavit evidence, is eligible to apply for voluntary retirement upon completing a minimum of 15 years of Commissioned service. That the Claimant communicated his intention to voluntarily retire on 31^st May 2024, which was only eight years from the commencement of service with the 1^st Defendant; and having failed to satisfy the minimum duration as required, he cannot be deemed to have lawfully retired from service vide his letter of voluntary retirement sent to the Nigerian Air Force (2^nd Defendant).

 

[12] Counsel continued that where provisions of a law or regulation are clear and unambiguous, it is trite law that they should be given their plain, literal and ordinary meaning, as held in OKOH V. FEDPOLY BAUCHI & ANOR (2024) LPELR – 62580 (SC). To counsel, the Claimant is a Public Servant and must abide strictly by the prior agreement with the employer (2^nd Defendant), which he is fully aware of, as the established statutory protocol governing retirement and disengagement. He submitted that it is a standard practice all over the world to regulate the voluntary retirement or resignation of personnel of the Armed Forces to prevent operational prejudice which will be detrimental to the whole country at large. Counsel then cited CHIEF OF NAVAL STAFF V. OKPANACHI (2022) LPELR – 58273(CA), and reproduced Sections 26, 284 (2) (c) of the Armed Forces Act and paragraph 03.10 of the HTACOS 2017 (Revised) which he equally relied upon. 

 

[13] Flowing from the above, counsel then submitted that it is evident that the 2^nd Defendant acted in accordance with its governing laws and regulations, by refusing the application of the Claimant for voluntary retirement being in contravention of the extant laws as applicable to all men and officers of the Nigerian Air Force (2^nd Defendant), which includes the Claimant. Hence, that a regular combatant officer who has not completed a minimum of 15 years of commissioned service has no right to voluntarily retire pursuant to the aforementioned laws. He contended that Section 306(1) and (2) of the CFRN 1999(As amended) which the Claimant has relied upon as basis of his prayers before the Court, is inapplicable to the Claimant. He then reproduced Sections 217(1) and 218(4) of the CFRN 1999 (As amended), submitting that the provisions of the Armed Forces Act(AFA) and the HTACOS is by no means at variance with the provisions of the Constitution, seeing that they are created by the Constitution itself that establishes the Armed Forces of the Federation. He then urged the Court to so hold.

 

[14] Moving forward, counsel reproduced section 306(1) and (2) of the CFRN 1999(As amended), to the effect that it related to an elected office such as that of the President Federal Republic of Nigeria or any other elected public offices(position) which is recognized by the CFRN as well as that which is occupied by way of an appointment or selection as the case may be into same, such as the Office of the Accountant General of the Federation, Chief Justice of Nigeria etc., created by the Constitution. Again, that the above section has to do with ‘resignation’ and not ‘retirement’. Hence that the Claimant as a commissioned Regular Combatant, cannot legally seek refuge under the above provision, seeing that there is no such office as that of Regular Combatant under the Constitution. Therefore, the argument of the Claimant is misplaced and not applicable to the instant case; urging the Court to so hold.

 

[15] To counsel, the express mention of one thing exclude others not mentioned as held in KYARI V. FRN & ORS (2024) LPELR – 62768 (CA) and OKORIE & ANOR V. INEC & ORS. He then urged the Court to apply the decision in OKORIE & ANOR V. INEC & ORS, to the instant suit. He further submitted that the Claimant cannot bring a suit against the Defendants for failing to carry out actions in accordance to the stipulated laws governing them and that the Claimant is not entitled to the reliefs sought. He urged the Court to dismiss the Claimant’s case for being grossly incompetent, and a waste of precious time of this Court.  

 

FURTHER AND BETTER AFFIDAVIT OF CLAIMANT/APPLICANT AND REPLY ADDRESS ON POINT OF LAW IN OPPOSITION TO COUNTER AFFIDAVIT AND WRITTEN ADDRESS OF DEFENDANTS/RESPONDENTS.

 

[16] The Claimant’s further affidavit is of twenty-six (26) paragraphs, filed on 4^th March 2026 and deposed to by the Claimant/Applicant. In his written reply on point of law, the Claimant’s counsel submitted an additional issue to wit;

 

“Whether the provisions of the Constitution of the Federal Republic of Nigeria 1999(as amended) are construed subject to the provisions of the Armed Forces Act or any Subsidiary Legislation.”

 

Claimant’s counsel further submitted another issue to wit;

 

“Whether the provisions of the HTACOS can operate to oust the rights of the Claimant as guaranteed by the extant constitution.”

 

[17] According to Claimant’s counsel and contrary to the arguments of the Defendants’ counsel, he submitted that the Claimant wrote his letter of resignation addressed to the Defendants on 31^st May 2024, which was duly received/acknowledged by the Defendants, relying on Exhibit A to Originating Summons and paragraph 13 of Defendants’ Counter Affidavit. That by section 306(1) CFRN 1999, the procedure of voluntary retirement by any public officer, was exhaustively enumerated such that no other subsidiary legislation can alter the said procedure. He relied on ONWUKWUBIRI & ANOR V. IBEAKANMA & ORS(Supra), SUNDAY V. OLUGBENGA & ORS (Supra) LPELR – 4995 (CA), W.A.E.C V. OSHIONEBO(Supra) amongst others. He submitted that the Defendants contended that the Claimant’s letter was not approved, while advertently or inadvertently ignoring the fact that their said position had been laid to rest by the Court when giving effect to section 306 of the CFRN 1999 (As amended) in ONWUKWUBIRI & ANOR V. IBEAKANMA & ORS(Supra), wherein the Court held as follows:

 

“…By the provision of Section 306(2) of the 1999 Constitution, it is not necessary for the person to whom the letter of resignation is addressed to reply that the resignation has been accepted.”

 

[18] Furthermore, that by INEC V. MUSA (Supra), the Armed Forces Act cannot run contrary to the provisions of Section 306 of the Constitution, otherwise, it will be null and void. He referred the Court to the case of CHIEF OF NAVAL STAFF V. OKPANACHI (Supra), cited by Defendants’ counsel. Claimant’s counsel contended that the facts in the above case are not on all fours with the instant case. That in OKPANACHI’s case, he was seeking reinstatement and promotion, whereas the Claimant in the instant case has retired from the service of the Defendants. In furtherance of his arguments, counsel relied on Section 1(1) (2) (3) and 6 of the CFRN 199 (As amended) and the case of OBAMA & ORS V. MILITARY GOVERNOR OF KWARA STATE (1994) LPELR – 186 (SC), on the supremacy of the Constitution.

To counsel, the section of the Armed Forces Act relied upon by the Defendants, is in total aberration and conflict with the constitutional provisions and therefore void. 

 

[19] It is submitted that the Claimant herein had since retired and therefore not obligated to comply with the requirements of the provision of the Armed Forces Act, 2004, since the provision of the Act is in strict conflict with the constitutional provisions. That assuming without conceding that the Act applies to the Claimant, suffice to state that he has even exhausted the administrative procedures by first applying to the Defendant as enumerated in Exhibit ‘A’.  

 

On whether the provisions of the Constitution of the Federal Republic of Nigeria 1999(as amended) are construed subject to the provisions of the Armed Forces Act or any Subsidiary Legislation. Counsel here answered in the negative and cited the case of ADISA V. OYINWOLA & ORS (2000) LPELR – 186 (SC), in support of his argument on supremacy of the Constitution. That it will amount to a legal treachery to have the Constitution of the land construed subject to any law, enactment, statute or Act.

 

[20] In reference to paragraphs 3.3 – 3.12 of Defendants’ submissions, the Claimant’s counsel opined that the entirety of those submissions are in total aberration of the law, as the rights and procedure of resignation are constitutional and cannot be altered or taken away by the HTACOS or any statute. Counsel further relied on case of TSARO IGBARA TUAMENE GODSWILL V. CHIEF OF AIR STAFF & ANOR in Suit No. NICN/ABJ/364/2024 delivered on 4^th March 2025 Coram Justice B.B. Kanyip PHD, OFR, bpa (President National Industrial Court of Nigeria), in support of his stance to the effect that it is section 306 which is applicable to the Claimant in the instant case, just as it was in the above case. He further relied amongst others on NNAEMEZIE DIM V. THE CHIEF OF ARMY STAFF & ANOR in suit No. NICN/ABJ/223/2024 delivered on 27^th May 2025 Coram Justice E.D. Subilim of the National Industrial Court of Nigeria, emphasizing that where the constitution provides that the resignation takes effect when the letter of resignation is received by the relevant authority, it implies that the authority has no input to make to the resignation. 

 

[21] Regarding case of OKOH V. FEDPOLY BAUCHI & ANOR (Supra), cited by the Defendants’ counsel in his address, Claimant’s counsel submitted that the Defendants’ counsel chose to ignore and accord section 306 its literal, plain and ordinary meaning as used in that context. Again, that the Defendants had misconceived the position of the law when it relied on the case of AMUKEODO V. IGP & ORS (1999) LPELR – 468 (SC), seeing that in the instant case, the Claimant did not travel out of the statutory procedure but confined himself to the provision of Section 306 of the Constitution of the Federal Republic of Nigeria. Counsel then referred the Court to paragraph 11 of Affidavit in support of Originating Summons Application and Exhibit ‘A’ attached therewith.

Again, that contrary to the submissions of the Defendants in paragraph 3.30 of their address, the recruitment of the Claimant or any other personnel of the Armed Forces is by selection/statutory enlistment.

 

[22] Furthermore, that Defendants’ paragraph 3.31 of address, is an attempt to mislead this Court, seeing that this Court has settled the issue of ‘retirement’ and ‘resignation’ in plethora of cases where it refers to voluntary retirement as resignation, citing ONWUKWUBIRI & ANOR V. IBEAKANMA & ORS(Supra).

Counsel then submitted that arguments of Defendants’ counsel are irrelevant and speculative, with no evidence placed before this Court to show that the Claimant occupies an irreplaceable position that an emergency exists and that a binding service bond restrains him. To counsel, Courts decide matters on facts and not conjecture. 

 

[23] To counsel, the Defendants’ position is an outright misconception of the law and urged the Court to discountenance same. 

 

COURT’S DECISION

[24] By its nature, an Originating Summons Application is used where the sole or principal question in issue is or is likely to be one for construction of a written law, or of any instrument made under any written law, or of any deed, will, contract or other document or some other questions of law. It is often used where there is unlikely to be any substantial dispute of fact. See NTUKS V. N.P.A. (2012) 8 NWLR p.37 (CA). 

 

[25] I have extensively read the processes filed in this case and considered also the submissions made by respective counsel. I have looked at the issues raised by the Claimant/Applicant in this Application which are associated with similar cases decided by this Court, which I would in the course of this Judgement make reference to as may be applicable. By the submissions of respective counsel, the questions for determination of this Court are hinged on paragraph 3.10(a) of the HTACOS 2017 (Revised) and sections 217 (1) (2) 218(4) and 306(1) and (2) of the 1999 Constitution. 

 

[26] The facts of the Claimant’s case can be gleaned from the Affidavit evidence filed alongside the Originating Summons Application dated 3^rd October 2025. By his evidence, the Claimant was enlisted into the service of the 2^nd Defendant on 22^nd September 2012 and subsequently commissioned on 16^th September 2017 vide Regular Combatant Course with service number NAF4483. Thereafter, he was commissioned as a Regular Combatant Officer and posted to 401 Flying Training School, Kaduna State where he spent 2 years. His further postings were respectively to 405 Helicopter Combat Training Group, Enugu State and 115 Special Operation Group, Nigerian Air Force Port Harcourt, Rivers State, which was his last posting after which he forwarded his letter of voluntary retirement to the Defendants dated 31^st May 2024, which was duly received and acknowledged by the Defendants. That Despite counseling session by the Defendant and nomination for training courses, he maintained and reaffirmed his earlier position of voluntary exit from service since 31^st May 2024, and by Defendants’ signal dated 12^th July 2024, he was replaced with another officer for the training course. See Exhibits “A – I” attached to the Claimant’s Affidavit in support.  

 

[27] That notwithstanding all the above, the Defendants again nominated the Claimant for a Junior Staff Course 100/2025 at the Armed Forces Command and Staff College Jaji on 11^th June 2025, to which he appealed for removal of his name from the course, which was deleted by a signal dated 15^th May 2025 and 16^th June 2025. To the Claimant, the Defendants failed to process his resignation despite the letters of 9^th July 2024, 11^th July 2024 and 12^th July 2024 acknowledging his letter of voluntary retirement. That he is legally entitled to voluntary exit from public service, and it will be impermissible and unlawful for the Defendants to presume that he is still in their service, which has necessitated this action against the Defendants and the reliefs sought thereof.   

 

[28] In a nutshell, what is before the Court to decide is: whether or not the Claimant has a right of voluntary resignation and whether or not his letter of voluntary retirement is effective from the date of its issuance/receipt. These questions were answered by the Claimant in the affirmative, while the Defendants answered in the negative. Now, the position of the law is that resignation of an appointment becomes effective and valid the moment it is received by the person or authority to whom it is addressed. This is so because there is the absolute power to resign with no discretion to refuse or accept; and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted. In other words, the right of an employee to leave the service of his employer at any time of his choice is coterminous with the right to freedom from forced labour. See YESUFU V. GOV. EDO STATE (2001) 13 NWLR (PT.731) 517 SC.

 

[29] The position of the Defendants is that the Claimant as a regular combatant officer having not completed a minimum of 15 years of commissioned service, is ineligible for voluntary retirement. That the refusal to process the Claimant’s application for voluntary retirement was done in strict compliance with the applicable laws. The Defendants had relied on the likes of Sections 217 (1) (2) 218(4) and 306(1) and (2) of the 1999 Constitution and paragraphs 3.10(a) of HTACOS 2017 (Revised) and Section 26 of the Armed Forces Act. My understanding of section 26 of the Armed Forces Act, is that the President may make regulations governing the commissioning of officers, their terms of service, promotion, retirement, resignation, etc., while paragraph 3.10(a) of the HTACOS 2017 (Revised), provides for the length of service of regular combatant officer, who shall be eligible to apply to retire if he has served for at least 15 years of commissioned service subject to regulation in force. Hence, according to the Defendants, since the Claimant has served for only 8 years since the commencement of service with the 1^st Defendant, he has no right to voluntarily retire pursuant to the applicable laws.

 

[30] I have combed through our laws with recent judicial decisions as applicable to the instant case, wherein the Court had held that employers have no right or power to reject employees’ letters of resignation. It is also, long settled law that the effectiveness of employees’ letters of resignation is not dependent on acceptance by employers, seeing that where a letter of resignation has been tendered, the question of acceptance or rejection does not arise. See TADUGGORONMO V. GOTOM (2002) 4 NWLR (PT.757) 453 CA.  It is necessary at this juncture to reproduce Sections 217(1), 218(4), 306(1) and (2) of the Constitution Federal Republic of Nigeria 1999 referred to by both parties in their addresses before the Court. 

Section 217(1): “There shall be an Armed Force for the Federation which shall consist of an Army, a Navy, and Air Force and such other branches of the armed forces of the Federation as may be established by an Act of the National Assembly.” 

Section 218(4)(b): “The National Assembly shall have power to make laws for the regulation of — (b) the appointment, promotion and disciplinary control of members of the armed forces of the Federation.”

 Section 306(1) and (2): (1) “Save as otherwise provided in this section, any person who is appointed, elected or otherwise selected to any office established by this Constitution may resign from that office by writing under his hand addressed to the authority or person by whom he was appointed, elected or selected.” 

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

[31] Going by Defendants’ arguments, it is the provisions of the Armed Forces Act and the HTACOS 2017 (Revised) which is applicable to the Claimant’s case. This in my humble view, would then meant the above legislations prevails over the provisions of the Constitution, particularly Section 306(1) and (2) as applicable in this case! It is elementary principle of law that the Constitution is the organic instrument which confers powers and also creates right and limitations and regulates the relationship between citizens and the various arms of government at all levels who are bound by same and also have a duty to ensure its enforcement. Hence any action of either the Legislature or the Executive that is inconsistent with the provisions of the Constitution must be declared null and void by the Court, to the extent of its inconsistency. See IMONIKHE V. AG BENDEL STATE (1992) 7 SCNJ 197, ADISA V. OYINWOLA (2000) LPELR – 186 (SC).

 

[32] Additionally, it is the function of the Court to interpret the provisions of the Constitution in the clear tenor of the words contained in it, in order to bring out the intention of the law makers, without imputing into the Constitution words which are not used therein. Hence, the Defendants herein are not permitted to give a different meaning to the wordings of Section 306(1) and (2) as applicable in this case. I so hold. See OBUSEZ V. OBUSEZ (2007) 30 NSCQR 329 @ 349 and AG OF THE FEDERATION V. AG OF ABIA STATE & ORS (2024) LPELR – 652576 (SC). With these, the Defendants’ arguments in an attempt to distinguish between ‘retirement’ and ‘resignation’ to fault the Claimant’s exit from the 2^nd Defendant’s service, cannot hold water. My take here is that the office of the Defendants is a creation of the Constitution pursuant to Section 306(1) of the CFRN 1999 and as applicable to the Claimant as a person appointed by that office, such that his voluntary retirement from the service of the 2^nd Defendant takes effect from 31^st May 2024, when same was duly received and acknowledged by the Defendants. Whether it is couched as ‘retirement’ or ‘resignation’ is all semantics. The fact remains that the Claimant exercised his right as provided under the CFRN and exited the service of the 2^nd Defendant. See section 306 (1) and (2) of the Constitution 1999.

 

[33] Furthermore, it is in evidence before the Court that the Claimant’s voluntary exit from service or retirement was addressed to the 1^st Defendant and forwarded to the authority saddled with such responsibility, and duly acknowledged by Defendants by their letters dated 9^th July 2024, 11^th July 2024 and 12^th July 2024 respectively (Exhibits A, B, C and D) annexed to the Affidavit in support of Claimant’s Application. The question now which calls for an answer, is whether the Defendants can validly purport to reject the Claimant's resignation letter? My simple answer is in the negative! And the case of WAEC V. OSHIONEBO (Supra) amongst others cited in this judgement are apt and applicable in this case. I so hold. 

 

[34] Several cases have been decided by this Court which are of similar facts with the instant suit, some of which the Claimant’s counsel equally made reference to and included in this judgement. Such cases at the risk of repetition are the likes of 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^th February 2024, 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^th March 2025, DR MICHAEL IKUESAN V. THE CHIEF OF NAVAL STAFF & ANOR UNREPORTED SUIT NO. NICN/ABJ/18/2025, the judgment of which was delivered on 8^th  May 2025, SMART A. AMOUGH V. THE NIGERIAN AIR FORCE & ANOR UNREPORTED SUIT NO. NICN/ABJ/453/2024, the judgment of which was delivered on 30^th September 2025 and DR ABUBAKAR GIDADO HALILU V. THE CHIEF OF NAVAL STAFF & ANOR UNREPORTED SUIT NO. NICN/ABJ/112/2025, the judgment of which was delivered on 13^th November 2025.

[35] Flowing from the above cases and as applicable to the instant case, I find and hold that the Claimant herein has a right to voluntarily retire from the service of the 2^nd Defendant (The Nigerian Air Force) by virtue of section 306 of the CFRN 1999(As amended). Hence, he ceases to be in the employment of the 2^nd Defendant by reason of his voluntary retirement letter effective the 31^st day of May 2024. At the risk of repetition, section 306(2) of the 1999 Constitution is specific, to the effect 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 authorized by that authority or person to receive it (emphasis mine). 

[36] The case of DR ABUBAKAR GIDADO HALILU V. THE CHIEF OF NAVAL STAFF & ANOR, (supra) decided by this Court is quite apt, wherein the Court applying SMART A. AMOUGH V. THE NIGERIAN AIR FORCE & ANOR, (supra) held that section 306 of the 1999 Constitution cannot be qualified by paragraph 03.12 of HTACOS 2017, and that the Claimant in that case has an unfettered right to voluntarily retire. May I at this juncture, pause to equally hold likewise in the instant case, that paragraph 3.10(a) of the Harmonized Terms and Conditions of Service for Officers of the Armed Forces of Nigeria (HTACOS) 2017 (revised) or any such regulation relied upon by the Defendants cannot qualify section 306 of the 1999 Constitution. Also, it need be pointed out that the 1999 Constitution does not have any limiting provision to section 306 of same Constitution. 

[37] As noted earlier on in this judgement, it is the unfettered freedom of entry and exit that distinguishes employment from servitude. The law is also trite that a Court of law will not impose an unwilling employee on a willing employer however indispensable his or her service is to the employer. Hence, the practice of purported rejection of the Claimant’s letter of resignation in the instant case, has equally been held to amount to forced labour which is prohibited by Section 34(1) (c) of the 1999 CFRN (as amended) and Section 73 (1) of the Labour Act. See INEH MONDAY MGBETI V. UNITY BANK PLC Unreported Suit No. NICN/LA/98/2014 judgement delivered on 21^st February 2017. Again, the practice of refusal of resignation by an employer, also, violates the ILO Convention Concerning Forced or Compulsory Labour 1930 (No.29) which was ratified by Nigeria on 17^th October, 1960. See ILO Abolition of Forced Labour Convention, 1957 (No.105) and Section 254 C (2) of the same Constitution of the Federal Republic of Nigeria 1999(as amended). In all, Section 34 (1) (C) of the same Constitution and Section 73(1) of the Labour Act which prohibit forced or compulsory labour can be said to have domesticated the ILO Convention concerning Forced Labor, as applicable in the instant case. I so hold. For the purposes of clarity, the above sections are reproduced hereunder:

Section 34 (1): “Every individual is entitled to respect for the dignity of his person, and accordingly — (a) no person shall be subjected to torture or to inhuman or degrading treatment; (b) no person shall he held in slavery or servitude; and (c) no person shall be required to perform forced or compulsory labour.  (2) For the purposes of subsection (1)(c) of this section, “forced or compulsory labour” does not include — (a) any labour required in consequence of the sentence or order of a court; (b) any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such; (c) in the case of persons who have conscientious objections to service in the armed forces of the Federation, any labour required instead of such service;  (d) any labour required which is reasonably necessary in the event of any emergency or calamity threatening the life or well-being of the community; or (e) any labour or service that forms part of — (i) normal communal or other civic obligations of the well-being of the community; (ii) such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly; or (iii) such compulsory national service which forms part of the education and training of citizens of Nigeria as may be prescribed by an Act of the National Assembly.”

[38] The decision of His Lordship, Hon. Justice B.B. Kanyip, PHD, OFR, bpa, President, National Industrial Court of Nigeria in HAKEEM OLAYIWOLA SARKI V. THE NIGERIAN AIR FORCE AND THE CHIEF OF AIR STAFF in SUIT NO. NICN/ABJ/365/2025 delivered on 12^th March 2026, is timely and settles the issue in the instant case of voluntary retirement. I have no cause to depart from His Lordship’s decision in that case seeing that the facts in that case are similar to the instant case. By the Court’s decision in HAKEEM OLAYIWOLA SARKI V. THE NIGERIAN AIR FORCE AND THE CHIEF OF AIR STAFF (Supra), Section 34(1)(b) and (c), prohibits the holding of any person in slavery and servitude, or requiring the person to perform forced or compulsory labour. 

[39] Moving forward, His Lordship held thus: ……. “section 34 of the 1999 Constitution did not define “forced or compulsory labour”, but what Section 34(2), however, did is to exclude a number of “labours” from being considered as forced or compulsory labour. For present purposes, and as relevant to the instant case, Section 34(2)(b) and (e)(ii), which excludes from forced or compulsory labour “any labour required of members of the armed forces of the Federation or the Nigeria Police Force in pursuance of their duties as such” and “any labour or service that forms part of…such compulsory national service in the Armed Forces of the Federation as may be prescribed by an Act of the National Assembly”. So, by Section 34 of the 1999 Constitution, on face value, military service is not forced or compulsory labour. (Emphasis mine). I use the phrase “on face value” advisedly because the 1999 Constitution 245C(1)(f) and (h), and (2) of the 1999 Constitution gives this Court jurisdiction/power on matters relating to or connected with international best practices in labour, employment and industrial relations, or pertaining to the application or interpretation of international labour standards, and the application of any international convention, treaty or protocol, which Nigeria has ratified relating to labour, employment, workplace, industrial relations or matters connected therewith. Cases such as FERDINAND DAPAAH & ANOR V. STELLA AYAM ODEY [2018] LPELR-46151(CA); [2019] 16 ACELR 154 @ PAGE 181 AND SAHARA ENERGY RESOURCES LTD V. MRS OLAWUNMI OYEBOLA [2020] LPELR-51806(CA), have acknowledged the obligation of this Court to apply Conventions ratified by Nigeria in terms of Section 254C(1)(f) and (h), and (2) of the 1999 Constitution. 

[40] Article 2(1) of C.29 defines forced or compulsory labour in these words: For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.  

Article 2(2)(a) of C.29 goes on to exclude from the term Forced or compulsory labour “any work or service exacted in virtue of compulsory military service laws for work of a purely military character”. Up to this point, Article 2(1) and (2)(a) bears close resemblance to section 34 of the 1999 Constitution. By ILO jurisprudence, the exclusion of compulsory military service from the term forced or compulsory labour, is not absolute. The Committee of Experts on the Application of Conventions and Recommendations (CEACR)’s General Secretary concerning the Forced Labour Convention, 1930(No.29) and the Abolition of Forced Labour Convention, 1957(No.103) of 2007 is quite explicit in addressing the scope of military service exemption……………………….it should be kept in mind that the Convention relating to compulsory military service do not apply to career military personnel. The Convention therefore does not deal with the use of persons serving in the armed forces on a voluntary basis and consequently is not opposed to the performance of non-military work by these persons. At the same time, for the above reason, the provisions of the Convention relating to compulsory military service cannot be invoked to deprive career military personnel of the right to leave the service in peacetime within a reasonable period, e.g. by means of notice of reasonable length”…….The provisions of the Convention relating to compulsory military service cannot be invoked to deprive career military servicemen of the right to leave the service in peacetime within a reasonable period, e.g. by means of notice of reasonable length…” (emphasis is of Court)…….What this implies is that despite section 34 of the 1999 Constitution which exempts military service from being classified as forced or compulsory labour, it is now qualified by the ILO jurisprudence regarding C.29 (the Forced Labour Convention) in virtue of section 245C(1)(f) and (h), and (2) of the 1999 Constitution, and cases like FERDINAND DAPAAH & ANOR V. STELLA AYAM ODEY (SUPRA) AND SAHARA ENERGY RESOURCES LTD V. MRS OLAWUNMI OYEBOLA (SUPRA). “

 [41] The foregoing decision of the Court is quite explicit and which I totally adopt and apply in the instant case, as far as voluntary retirement is concerned in military service. Against this backdrop, I hold that the Defendants in this case, cannot deprive the Claimant of the right to leave the service of the 2^nd Defendant which he voluntarily joined; and having regard to his letter of resignation dated the 31^st day of May 2024, he ceased to be in the service of the 2^nd Defendant. Accordingly, the sole issue is decided in favour of the Claimant.  

[42] Consequently, the Claimant succeeds in all his reliefs as sought before this Court. For the avoidance of doubt, the Claimant succeeds in his Reliefs 1, 2, 3, 4, 5, 6, 7 and 8. 

[43] Judgement is entered accordingly.

 

Hon. Justice R.B. Haastrup

JUDGE