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The Legality Of The Rejection Of The Resignation Of Soldiers By The Chief Of Army Staff By Dyege Moses Terhemba

On July 12, 2020, Punch newspaper reported that 356 soldiers have tendered resignation to the chief of Army Staff, Lt Gen Tukur Buratai, citing “loss of interest” as a reason for resignation. This was in line with the provisions of section 26 of the Armed Forces Act and the Harmonized Terms and Conditions of service soldiers/rating/airmen(revised) 2017. The above provisions also subject the resignation to the approval of the president (Chief Army Staff). 

“Our correspondence observed from the list that the majority of the soldiers applying for voluntary disengagement(resignation) and citing loss of interest are from the north east theatre of operation – a development which military sources attributed to loss of morale, poor weapons, unimproved allowances and continuous loss of soldiers to Boko Haram” punch reports   

It is alarming to hear military personnel in Nigeria have chosen to resign from the service of their country. The chief of Army Staff has ordered for the rejection of the resignation tendered by the several military personnel. The news of their resignation has raised many views Nationwide, some views suggesting that they had pledge to serve Nigeria and should serve it to death, while many views have seen the action of the chief of army staff as right and condemning the act of the soldiers as cowardly. I won’t delve into the general view of the action but will constrain myself as to the legality of the rejection of the resignation in law.

In addressing the above, a sole issue for determination; as to whether the chief of Army Staff acted within the confines of the law in rejecting the resignation of the soldiers?

I will have to recourse myself to several authorities to buttress my point. It is well known knowledge that an employer has the right to hire and fire its employee. This has received judicial recognition in numerous cases such as SELCON TANNERY LTD V. MR BADA ABUBAKAR & ORS 2013 LPELR 21412, 7UP BOTTLING CO, LTD V. ANYANYA AFAM 2012 LPELR 20873 E.T.C

 The question one will ask at this point is whether the employee also has same right to leave his place of work at will through resignation? Many authorities and person have argued on this point that, since one has entered a contract, he must be ready to undertake and carry out what was required under the contract and a resignation of the employees will amount to breach of contract (given that employment is a contract). Some are of the opinion that the employee is at the service of the employer and the employer decides what happens to the employee. The arguments are numerous and I can’t delve into all. Let me move straight up to what the law says in regards the aforementioned questions.

In the case of Frederick Ogbeifun v. UDA Microfinance Bank Limited(NICN/BEN/17/2017) per A.A Adewemimo  held thus “rejection of  letter of resignation by an employer for whatever reason, amounts to force labour practice and it is therefore unconstitutional” the learned judge further concurring to the speech delivered by justice B. Kanyip J. titled “The Changing face of Nigerian Labour Law Jurisprudence and What Employers need to Know” presented at the Perchstone & Graeys Labour Law Emerging Trend Seminar on Labour Law and Emerging Trends.

“…The law is that a notice of 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 because there is absolute power to resign and no discretion to refuse to accept; (underline mine) and it is not necessary for the person to whom the notice of resignation is addressed to reply that the resignation is accepted….”

 Further explaining the reason for the above the learned justice held thus

 “..The justification for having to allow the resigning employee to leave immediately and automatically is the fact that [he/she] thereby forfeits [any] benefit he/she may be entitled to as well as the duty to pay off all indebtedness that [he/she] may [have] towards the employer; as such, the forfeiture of benefits inures as contractual consideration for the immediate and automatic separation of contractual relationship as per the employment in issue. So it cannot be that an employee who resigns with immediate effect is allowed to also benefit from such immediate separation by claiming benefits from the employer….”
This reason is justifiable in law and in reasoning as he also goes with a loss.

The above position is in line with the provisions of sections 73(1) of the Labour Act and section 34(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which are against force labour. Section 34(1)(c) “no person shall be required to perform force labour” so it was the reasoning of the court that rejecting a resignation by an employee will amount to making him work against his will which amounts to force labour.

However, to every general rule, there abound exception, as held above and with the various authorities cited, it is very clear that a resignation need not be at the discretion of the employer to accept or reject as a rejection of such will amount to force labour which will be contrary to the provisions of the Constitution. A critical look at the whole of section 34 which talked about force labour, the section goes on to provide exceptions,

 section 34(2)

(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 orcalamity threatening the life or well-being of the community;

A close look at the above sections, one will begin to wonder under which of the exceptions to force labour does the rejection of the resignation by the chief of army staff fall under. It is crystal clear and evident from the letters of section 34(2)(d)  that this kind of situation was foreseeable.

A critical look at section 34(2)(d) of the constitution, certain criteria has to be occur or be present for this exemption to apply, which are reasonably necessary and  a calamity threatening the life and well-being of the community; it is clear that a calamity(terrorism) threatening the life and wellbeing of Nigerians(particularly of the north east) was evidently seen, and this action was reasonably necessary in the circumstance to safeguard the lives of citizens with is the primary duty of government. 

Relying strongly on sections 34(2)(d) of the constitution of the Federal Republic of Nigeria, an exception to the force labour principle,  It is my submission that the chief of Army Staff was right in law to reject the resignation of the many soldiers if he acted in good faith and for the good of the country.

This is not in any way to see soldiers as lambs to be uselessly slain for a no just cause. They are precious jewels of the nation and their duties will always be acknowledged and rewarded. l therefore urge the Government to take a critical look at the problems surrounding such mass resignation and urge the soldiers whom have pledged to defend and have elegantly and courageously been defending the country not to relent in their duties and continue to do same.

DYEGE MOSES TERHEMBA is a Law Student of Benue State University and Volunteer Writer for Lex Community NG.

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