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Employee has a Right to Resign Voluntarily from Service- Court


Hon. Justice Olufunke Anuwe of the National Industrial Court, Abuja judicial division has validated the resignation of a medical doctor, Dr. Elkanah John from service of the Nigerian Air Force effective from 22nd July 2019.

Justice Anuwe noted that Dr. Elkanah John has an unconstrained right to resign from his appointment with the Nigerian Air Force and no special approval is needed for the exercise of a person’s constitutional right to resign.

The Court set aside any subsequent action carried out by the Chief of Air Staff and the Nigerian Air Force against Dr. John concerning his resignation and perpetually restrained the Chief of Air Staff and the Nigerian Air Force from carrying out any action, which is an offshoot of resignation, against Dr. John.

From facts, the claimant- Dr. Elkanah John a medical practitioner had submitted that he was commissioned into the Nigerian Air Force vide a Direct Short Service Course on 4th July 2014. He added that he forwarded a letter of resignation to the defendants on 22nd July 2019, and contended that by his resignation notice, the Chief of Air Staff and the Nigerian Air Force cannot turn around to complain about his resignation or to declare that he is still in the service of the Air Force.

He argued that any law prohibiting him from enjoying his right of resignation is inconsistent with the provisions of the Constitution and as such null and void to the extent of such inconsistency.

In defence, the defendants- the Chief of Air Staff and the Nigerian Air Force averred that Dr. John is presently considered a deserter and that while Dr. John’s application for voluntary retirement was being considered by the appropriate authorities, Dr. John exited the service of the Nigerian Air Force unofficially, contrary to laid down procedures as dictated by the Armed Forces Act, 2004.

The Nigerian Air Force argued that Dr. John ought to have obtained the final approval of the Chief of Air Staff of the Nigerian Air Force before exiting the service of the Nigerian Air Force and Dr. John did not exhaust the available remedies provided under the Armed Forces Act, 2004 if he felt aggrieved with the delay in approving his application for voluntary discharge by the Chief of Air Staff urged the court to strike the case for being incompetent.

Counsel argued that any attempt to voluntary discharge or retire from the Armed Forces ought to be in line with the Armed Forces Act and not under the provisions of the 1999 Constitution and further that the absence of obtaining a certificate of discharge implies that Dr. John’s resignation was not accepted and that makes the claimant a deserter.

In opposition, Dr. John’s Counsel, M. A. Danmama Esq counsel stated that his client is not subject to the service law of the defendants having voluntarily exited from the service in exercise of his constitutional right, as such, he is not expected to exhaust the administrative procedure laid down in the Armed Forces Act, urged the court to dismiss the objection and grant the reliefs sought.

In a well-considered Judgment, the Presiding Judge, Hon. Justice Olufunke Anuwe held that when 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.

The Court reiterated that every person employed or appointed into an employment or contract of service, whether common law employment or statutory employment, has the right to resign from the employment.

Justice Anuwe held that Dr. John voluntarily joined the service of the Nigerian Air Force and he has the right to voluntarily resign from the service.

Justice Anuwe stressed that Military service is not slavery and as such the Chief of Air Staff and the Nigerian Air Force cannot force Dr. John to remain in the service when it was his desire to exit the service and he had accordingly given notice of his resignation.

The Court held that Dr. John, having resigned from service before instituting this suit, is no longer an officer in the service of the 2nd defendant and he is not under any obligation to comply with the provisions of section 178 of the Armed Forces Act before approaching the court.

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