Resignation From The Armed Forces: It Is Constitutionally And Statutorily Imperative To Obtain Permission Before Resigning

By Obioma Ezenwobodo

Introduction:

The recent decisions of the National Industrial Court of Nigeria declaring that it is within the fundamental rights of a member of the Armed Forces to voluntarily resign his employment without the permission of his service authority has raised heated conversations bordering on compliance with fair labour practice on one hand and national security interest on the other hand. This article borders on the need to explicate and highlight different areas that cut across the issue.   

The Armed Forces is created by section 217(1) of the Constitution of the Federal Republic of Nigeria (CFRN) (as altered), 1999. The Armed Forces consists of the Army, Navy, and the Air Force, and such other branches of the armed forces as may be established by an Act of the National Assembly. By virtue of subsection 2 of the section, the Federation shall, subject to an Act of the National Assembly made in that behalf, equip and maintain the armed forces as may be considered adequate and effective for the purpose of –

• defending Nigeria from external aggression;

(b) maintaining its territorial integrity and securing its borders

from violation on land, sea, or air;

(c) suppressing insurrection and acting in aid of civil authorities

to restore order when called upon to do so by the President, but subject to such conditions as may be prescribed by an Act of the National Assembly; and

(d) performance such other functions as may be prescribed by

an Act of the National Assembly

Further, section 218 (4) of the CFRN empowers the National Assembly to make laws for the regulation of – (a) the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation; and (b) the appointment, promotion, and disciplinary control of members of the armed forces of the Federation. In strict fidelity to the provisions of the CFRN, the National Assembly enacted the Armed Forces Act (AFA), 2004, providing for operational and administrative structures of the armed forces. Thus, the Courts in Ibrahim v. Nigerian Army (2015) LPELR-24596(CA) and Chief of Naval Staff v. Okpanachi (2022) LPELR-58273(CA) have consistently held that the provisions of the AFA, which regulates persons subject to service law, are binding.

The Armed Forces, being a regimented organization, has strict regulations on enlistment, resignation, retirement, and discharge of its members. By the provisions of 25 of the AFA, a member of the Armed Forces seeking to resign must obtain permission from his service chief or service authority before resigning. By virtue of section 26 of the AFA, the President of the Federation Republic of Nigeria is empowered to make regulations for the purpose of giving effect to the provisions and mandates of the AFA relating to 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. In furtherance of this provision, the President made the Harmonised Terms and Conditions of Service for Officers (HTACOS), containing regulations governing the conditions of service for officers in the Armed Forces, to give effect to the provisions of the AFA. Under the HTACOS, an officer is required to have committed 15 years of service in the Armed Forces before resigning. Thus, any member of the Armed Forces who applies to resign before the mandatory years of service must first apply and get the permission of the service authority before resignation.

Flurry of Disruptive Judgments:

Recently, the National Industrial Court of Nigeria has disrupted the once-entrenched means of ingress and egress in the Armed Forces by holding that a person subject to service law has the right to resign from the Armed Forces without being subjected to approval or permission from the Force. In other words, a member’s resignation is complete when his letter of resignation is received by his service authority. In the classicus case of Elkanah John Garang    v.    The Chief of Air Staff & Anor Unreported Suit NO: NICN/ABJ/117/2023 judgment given on the 29^TH FEBRUARY, 2024 at Abuja division of the Court. In this case, the Claimant, a medical practitioner, was commissioned into the Nigerian Air Force vide a Direct Short Service Course on 4^th July 2014. Upon his commission, he was posted to 461 NAF Hospital, Kaduna, and he served for 5 years and submitted his letter of resignation to the Defendant. The Defendant accepted the letter and still contended that the Claimant was still at their service. The Claimant sued, asking for a declaration that the submission and reception of his letter of resignation to the Defendants amounts to resignation from the Defendants. His Lordship O.Y. Anuwe, in agreeing with the Claimant that he has successfully resigned from the service of the Defendants, held thus:

“From the foregoing, it is clear that the claimant has an unconstrained right to resign from his appointment with the 2^nd defendant. No special approval is needed for the exercise of a person’s constitutional right to resign. Irrespective of the wordings of a letter of resignation, it effectively conveys the claimant’s intention to resign. Therefore, when the claimant tendered a resignation letter on 22^nd July 2019, he properly exercised his right in section 306 of the CFRN 1999 to resign his appointment with the 2^nd defendant. Again, the claimant’s resignation took effect from the date he indicated in the letter, being 20^th September 2019. The overall implication is that after tendering the letter of resignation and it had become effective, the defendants do not have any right thereafter to say they did not accept the resignation or to still consider the claimant to still be in the service of the 2^nd defendant. Let me also point out that the defendants never indicated that they were averse to the claimant’s resignation; especially in the light of Exhibits B and C, and also the fact that no communication was ever made to the Claimant rejecting his resignation. Even if the defendants did, which they did not, it is clear from the foregoing, that they had no right to do so. The claimant voluntarily joined the service and he has the right to voluntarily resign from the service. Military service is not slavery and as such the defendants cannot force the claimant to remain in the service of the 2^nd defendant when it was his desire to exit the service and he had accordingly given notice of his resignation.”

Not too long thereafter, the Court held a similar decision in Tsaro Igbara Tuamene Godswill v. The Chief of Air Staff & Anor, unreported, Suit No. NICN/ABJ/364/2024, the judgment of which was delivered on 4 March 2025 at the Abuja division of the Court. The Court equally answered the question of the right of the claimant to voluntarily resign in the affirmative.

Also, in Nnaemezie Dim v. The Chief of Army Staff & Anor, Unreported, Suit NO: NICN/ABJ/223/2024, judgment delivered on the 27^TH MAY, 2025 by HON. JUSTICE E. D. SUBILIM. In this case, the Claimant, a medical doctor, was enlisted into the Nigerian Army on the 9^th September, 2012 and was commissioned on the 9^th March, 2013 vide Direct Short Service Course 22.. He served the defendants for six years in various capacities and tendered his letter of resignation to the Army authority. He was invited by the defendants for counselling on 28/08/2019 in respect of his resignation letter which he maintained his position on voluntary resignation. Despite his letter of resignation and the subsequent acknowledgment letter, the defendants still declared that he was still in their service. The Claimant sued, asking for a declaration that the submission of his letter of resignation amounts to automatic resignation from the Armed Forces. Subilim J, in ruling in favour of the Claimant, held thus:

“It is of interest to note that when it comes to resignation from an employment, the law is that there is absolute power to resign and an employer enjoys no discretion to accept or refuse to accept a notice of resignation. It also follows that any attempt to stop an employee from disengaging by an employer would be interpreted as force or compulsory labour. This new thinking in labour and industrial relations law is arrived at by virtue of the provisions of section 34(1)(c) of the 1999 Constitution, section 73(1) of the Labour Act and the ILO Convention Concerning Forced or Compulsory Labour, 1930 (C. 29), a Convention ratified by Nigeria on 17 October 1960. See also the cases of Ibrahim v. Abdalah [2019] 17 NWLR (pt. 1701) 293; Tadugoronno v. Gotom [2002] 4 NWLR (pt. 757) 453 CA; Adefemi v. Abegunde [2004] 15 NWLR (pt. 895) 1 CA.”

In the case of Dr. Michael Ikuesan v. The Chief of Naval Staff & Anor, Unreported, Suit No. NICN/ABJ/18/2025, the judgment was delivered on 8^th May 2025 at the Abuja division of the Court. The Claimant was enlisted in the Nigerian Navy as an ordinary seaman (Rating) having gone through training at the Nigerian Navy Basic Training School (NNBS), Onne, River State. Upon graduation and qualification as an Optometrist, the Claimant, having served for eleven years, desired and attempted to be commissioned as an officer but was prevented. The Claimant thereafter submitted his letter of resignation and thereafter, sued the Defendant for a declaratory relief that his letter of resignation amounts to voluntary resignation and an order compelling the Defendant to issue him a discharge certificate by virtue of the said letter. The Court presided over by the Hon. President of the NICN, Hon. Justice B. B. Kanyip, PHD, OFR, bpa, granted the reliefs.

The most recent of this line of cases is Flight Lieutenant J. A. Akerele v. The Chief of Air Staff and Anor, Unreported, Suit No: NICN/ABJ/25/2025, judgment delivered on 2^nd September 2025 at Abuja judicial division of the Court. Here, the Claimant sought to leave the Air Force due to what he termed systematic persecution. The Air Force rejected his request based on the 15-year service rule and declared him absent without leave when he left, ordering his arrest. The Claimant challenged this in court, citing the constitutional right of public officers to resign. Hon. Justice Emmanuel D. Subilim declared that the provision in the Harmonised Terms and Conditions of Service (HTACOS) requiring 15 years of service before resignation was unconstitutional and violated fundamental rights. Justice Subilim described the rule as “modern-day slavery” and the Claimant’s resignation as valid from the date his letter was received and rejected the argument that using “voluntary retirement” instead of “resignation” invalidated it. A perpetual injunction was issued, preventing the defendants from arresting or compelling Akerele to continue in service.

Constitutional, Statutory, and Reasonable Justification for Persons under Service Law to First Obtain Permission before Voluntarily Resigning from the Armed Forces

The Armed Forces of the Federation has its peculiarity different from other civil bodies in the country. This peculiarity embodies it with a special status in its onerous task of defending the country from both internal and external aggressions and maintaining the territorial integrity of the country. To achieve this task, the Armed Forces is strictly regimented to enforce maximum discipline and order. Therefore, the fair labour principle on the right of free entry and free exit in employment law is not applicable in the Armed Forces, as both are highly regulated and structured for effective military service. Where there is a need to resign or be discharged from service, the approval of the military authority should first be sought and obtained. The argument that forcing or compelling a person under service law to remain in service against his free will is against fundamental human rights and against unfair labour practice is highly misconceived, as military law jurisprudence is different from labour law jurisprudence. This is exemplified in section 34(1)(c) of the CFRN that provides that every individual is entitled to resect for the dignity of his person, and accordingly, no person shall be required to perform forced or compulsory labour. On the other hand, the Armed Forces is exempted from this provision in 34(2)(b)&(e)(ii), which provides that forced or compulsory labour does not include –

• “any labour required of members of the armed forces of the Federation or the Nigerian Police Force in pursuance of their duties as such,”

(e)(ii)   “such compulsory national service in the armed forces of the Federation as may be prescribed by an Act of the National Assembly.”

In essence, the National Assembly is authorized to make laws on forced and compulsory service in the Armed Forces of the Federation. By the authority of this provision, coupled with sections 217 and 218 of the CFRN, the National Assembly made the Armed Forces Act, 2004, which contains provisions dealing with forced and compulsory services/labour in the Armed Forces. Most relevant to this discussion is section 25 of the AFA, which provides that an officer can resign from the Armed Forces when permitted to do so.

The Constitution equally confers powers on the National Assembly to make regulations on how the President, Commander-in-Chief of the Armed Forces of the Federation, can exercise his powers in the appointment, promotion, and disciplinary control of members of the Armed Forces. Section 218(4) of the CFRN provides thus:

“The National Assembly shall have power to make laws for the regulation of –

(a) the powers exercisable by the President as Commander-in-Chief of the Armed Forces of the Federation; and

(b) the appointment, promotion and disciplinary control of members of the armed forces of the Federation.”

By virtue of the above constitutional provision, the National Assembly, in section 26 of the AFA, authorises the President to make regulations governing commissioning of officers, terms of service, promotion, retirement, resignation, dismissal, and such other matters concerning officers of the Armed Forces as may seem to him necessary. Based on this provision, the President enacted the HTACOS, which, amongst other provisions, provides for 15 years of compulsory service in the Armed Forces, subject to exceptions, before resigning or being discharged from service.

Therefore, by the asymmetric combination of both the constitutional, statutory, and delegated legislation provisions, direct, specific, and far-reaching provisions are enacted bordering on the composition, regulation, administration, resignation, dismissal, and such other matters relating to the Armed Forces. Thus, despite members of the Armed Forces qualifying as public officers by virtue of section 18(1) of the Interpretation Act and section 318(1) of the CRFN, they are not regulated by the Civil Service Rules but by the Constitution, the AFA, and the HTACOS. In terms of the adjudicatory procedure of punishing offenders and enforcing discipline within the ranks, the Armed Forces rely on summary trial and court martial procedures rather than the civil courts. The summary trial and court martial proceedings are regulated by the AFA, the different Rules of Procedure for the Army and the Air Force, and the Manual of Naval Laws for the Navy.

Therefore, the application and reliance on section 306(1) of the CFRN, as the basis of determining the question of resignation of members of the Armed Forces in Garang, Godswill, Dim, Ikuesan, Akerele, and others, is most unwarranted and capable of jeopardising national security, disrupting security architecture, and plunging the whole country into chaos. Section 306(1) provides thus:

“Resignations

(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.”

A careful reading of the extant section indicates its application to persons appointed, elected, or otherwise selected to any office established by the Constitution. This is a general application that its application should be insulated from the Armed Forces to avoid absurdity. The reason for this is that section 306 is causing what sections 34(2)(b)&(e)(ii), 217(1), (2) and 218(4) of the CFRN are trying to prevent…that is, an unruly Armed Forces devoid of discipline, organization structure incapable of protecting national security.

The decisions in the cases of Garang, Godswill, Dim, Ikuesan, Akerele, and others were mainly arrived at by reliance on sections 34(1)(c) and 306 of the CFRN. A careful consideration of other relevant constitutional provisions in sections 34(2)(b)&(e)(ii), 217(1), (2) and 218(4) of the CFRN would render a totally different interpretation to the vexatious issue as it is trite that in the interpretation of the Constitution, no provision is superior to any other provision and all relevant provisions have to be considered. In INEC v. MUSA (2003) LPELR-24927(SC) Pp 102 – 102 Paras D – E, Niki Tobi, JSC of blessed memory, stated:

“Provisions in a Constitution are of equal strength and constitutionality. No provision is inferior to the other and a fortiori no provision is superior to the other.”

Thus, it is settled law that when interpreting the provisions of the Constitution, all its provisions must be read together. See Abraham Adesanya v. President of the Federal Republic of Nigeria & Anor (1981) 2 NCLR 358 at 374. It is also poignant that the provisions of the Constitution must be interpreted to avoid absurdity or inconvenient results. In the case of Saraki v. FRN (2016) LPELR-40013(SC), Pp 100 – 100 Paras A – B, per Ngwuta JSC. stated thus:

“In view of the importance of the Constitution, any of its provisions must be interpreted in such a manner to enhance its purpose. In cases of ambiguity, real or perceived, the provision in question must be construed in such a way as to avoid what is inconvenient or absurd. See Black’s Law Dictionary Special Deluxe 5th Edn p.234.”

It is humbly submitted that by the combined reading of sections 34(2)(b)&(e)(ii), 217(1), (2) and 218(4) of the CFRN, the members of the Armed Forces, though public officers, are to be governed and regulated by the provisions of the AFA and the regulations made hereunder. It is also submitted that reliance on the general provisions in sections 34(1)(c) and 306 of the CFRN to render decisions in the cases of Garang, Godswill, Dim, Ikuesan and Akerele, excluding the special provisions in section 34(2)(b)&(e)(ii), 217, and 218 of the CFRN, present an inconvenient or absurd situations antithetical to the appointment, promotion and disciplinary control required for an effective Armed Forces for the sake of national security.

Further, it is humbly submitted that the Armed Forces are not bound by the provisions of the Labour Law and the International Labour Organization, Convention Concerning Forced or Compulsory Labour, 1930 (No. 29), a Convention ratified by Nigeria on 17 October 1960, See https://www.ilo.org/dyn/normlex/en/f?=1000:11200:0::NO:11200:P11200_COUNTRY_ID:103259 as accessed on 8 September 2025 which were also relied upon in given judgments in the cases of Dim and Ikuesan and others. Section 89(2) of the Labour Act provides thus:

“Nothing in this Act shall apply to service members of the Armed Forces of the Federation or the Nigeria Police Force.”

Article 2(2)(a) of the International Labour Organization, Convention Concerning Forced or Compulsory Labour, 1930 (No. 29) provides that:

“Nevertheless, for the purpose of this Constitution, the term forced or compulsory labour shall not include –

Any work or service exacted in virtue of compulsory military service laws for work of a purely military character.”

It is based on a similar exemption to the forced or compulsory labour principle provided in section 34(2)(e)(iii) of the CFRN, that the National Youth Service Corps (NYSC) was created by virtue of the NYSC Act. Under section 2 of the NYSC Act, a compulsory one-year service to the Nation is provided. Juxtaposing the NYSC compulsory one year with the Armed Forces 15 years compulsory service, it would be unimaginable, inconvenient, and absurd to argue that the NYSC compulsory one-year service amounts to forced labour, against fundamental rights, and thus corps members can voluntarily resign from the service and compel the NYSC to issue them discharge certificates. This is the same absurd situation being faced by the Armed Forces under the authority of Garang, Godswill, Dim, Ikuesan, Akerele, and Others.

Inconvenient and Absurd Situations Presented by the Decisions in Garang, Godswill, Dim, Ikuesan, Akerele, and Others:

The inconvenient or absurd situations inherent in these decisions are that their eroding effects on the regimented control necessary for effective Armed Forces. The regimented control of the Armed Forces enforces standing orders that require its members to obtain permits before leaving Barracks, traveling outside their station, or even leaving their duty posts, as disobedience to these standing orders amounts to desertion (AWOL –Away Without Leave), which is a criminal offence under section 59 of the AFA. The effect of these decisions is that a member of the Armed Forces would throw in his letter of resignation rather than be charged with desertion. In effect, the necessary service discipline is completely eroded.

Another absurdity is the destruction of the ratio of officers needed to maintain optimal effectiveness during military assignments, missions, or battles. With the effects of these decisions, a soldier who is deployed to a warfront or to a risky mission might throw in his resignation rather than show brevity in undertaking the assignment. Thus, committing an offence of acts of cowardice provided in section 47 of the AFA.

Another absurdity is the wastage of national resources on a soldier who, after receiving specialized training, voluntarily resigns without deploying his knowledge to the protection of national security.

There is also an issue of a soldier suffering from a contagious, mental, or psychological health condition applying to resign voluntarily without adequate arrangement and care from his service authority before being resettled to the resettlement to the larger society.

There could also be an absurd condition where a soldier who has acquired vital national information in the course of his training or work wants to resign voluntarily without clearance from his service authority.

A more absurd situation is the validity of the inalienable power of the Armed Forces (applicable to all military) to recall soldiers from retirement or resignation by virtue of section 25 of the AFA. Would a soldier who voluntarily resigned without permission from the military still obey his recall? Can the Armed Forces activates this power of recall against a soldier who resigned without its permission?

Conclusion:

The necessity of obtaining permission before resigning from the Armed Forces has both constitutional and statutory justification based on the peculiarities of the Armed Forces in defending the country from both internal and external threats and protecting the territorial integrity of the country.  To decide otherwise is to reduce the operational effectiveness of the Armed Forces in planning and strategizing for military operations, as any of its members may throw in a letter of resignation during the heat of operations, thereby jeopardising the operation and indirectly aiding the enemy.  It is unsafe to apply reasons in cases dealing with resignation from civil organizations to cases dealing with resignations from the Armed Forces as they are not the same by virtue of the peculiarity of the Armed Forces. It is therefore safe to say that the decisions of the honourable Courts in the cases of Hon. Farouk M. Lawan v. FRN [2024] LPELR-62546(SC), Mrs Ramatu T. Shehu v. Judicial Service Committee of the Federal Capital Territory & Anor, unreported Suit No. NICN/ABJ/24/2018, and Mr. Victor Omotosho Ekundayo v. Federal Inland Revenue Service (FIRS) & 2 Ors, unreported, Suit No. NICN/ABJ/82/2021 cannot apply to resignation from the Armed Forces.

It needs to be noted that the combined reading of the various provisions empowering the Armed Forces with the powers to permit resignation of its members is not arbitrary. It is within the right of a member of the Armed Forces to voluntarily retire or be discharged, even before his due date. However, the retirement or discharge is subject to the approval of his service authority/service chief. This is provided under section 32 of the AFA.

Finally, the regulation on the age duration to serve in the Armed Forces is not to punish or enslave its members but to ensure the effectiveness of the Force and preservation of national security, which is the primary responsibility of the government.

Obioma Ezenwobodo LL.M. Partner: Resolution Attorneys (Abuja).

Author: “Law and Practice of Court Martial in Nigeria”; “Handbook on Court Martial Practice”, and “Fundamentals of Confessional Statement in Criminal Trials”

Pioneer Chairman: The Nigerian Bar Association, Garki Branch, Abuja (2022/24) Email:   obiomadan@gamil.com

______________________________________________________________________ Your Guide To Nigeria’s Competition Law — DOA Handbook (Volumes 1 & 2) Released At ₦20,000

Available for purchase at ₦20,000 Per copy through LawPavilion’s trusted platform. Search for The DOA Handbook Volumes 1 & 2. on Nigerian Competition Law or use the direct link: Click here. ______________________________________________________________________ “History of Rivers State Judiciary: A Compendium of Personalities on the Bench.” Authored by Ampim Gogo Blankson, Esq., Deputy Director at the Rivers State Ministry of Justice, in collaboration with the Rivers State Judiciary 💰 Cover Price: ₦20,000.00 (Twenty Thousand Naira) Bukky Law Books, Rivers State High Court Complex, Moscow Road, Port Harcourt – 📞 08034868754📞 08034729738📞 Enquiries: ______________________________________________________________________ Explore Nigeria’s Constitutional System — 17 Chapters, 924 Pages Of Insight By Prof. Hagler Sunny Okorie

Call to Order Your Copy: 📞 0803 766 7945 | 0802 863 6615 | 0803 225 3813 ✉️ haglersoco@gmail.com 🏢 Winners Chambers, 135 Ehi Road, Aba, Abia State ___________________________________________________________________ [Now Available] -- From Crime Scene To Courtroom: An Authoritative Legal Handbook On Police Investigations In this authoritative work, Basil Momodu Esq., titled Police Investigations in Nigeria Through the Cases 📖 Available now Call 07051822705 or any of the recommended independent booksellers listed hereunder. ______________________________________________________________________

[A MUST HAVE] Evidence Act Demystified With Recent And Contemporary Cases And Materials

Available now for NGN 40,000 at ASC Publications, 10, Boyle Street, Onikan, Lagos. Beside High Court, TBS. Email publications@ayindesanni.com or WhatsApp +2347056667384. Purchase Link: https://paystack.com/buy/evidence-act-complete-annotation ______________________________________________________________________ Alexander Payne Co. Law Reports

Contact & Orders 📞 0704 444 4777 | 0704 444 4999 | 0818 199 9888 🌐 www.alexandernigeria.com