No Law Mandates Senior Officer To Retire When A Junior Is Appointed Service Chief, Justice Anuwe Tells Nigerian Armed Forces

Hon. Justice Olufunke Y. Anuwe of the National Industrial Court of Nigeria (NICN) has declared that no statutory provision requires a senior military officer to retire upon the appointment of a junior colleague as a Service Chief, describing the longstanding practice as a “wasteful tradition” that prematurely deprives the nation of vital expertise amid escalating security challenges.

Delivering a keynote paper titled “Labour Law and Military Service: Implications for the Armed Forces of Nigeria” at the Nigerian Navy’s inaugural Annual Legal Training Seminar on December 3, 2025, Justice Anuwe urged serving and retired personnel to seek judicial interpretations to challenge this custom. The event, themed “Strategic Enforcement of Maritime and Labour Law for Enhanced Naval Operations in Nigeria,” was held at the Headquarters Directorate of Legal Services (Army) and aimed to bolster the legal acumen of naval officers.

Justice Anuwe emphasized the supremacy of the 1999 Constitution over the Armed Forces Act (AFA) Cap A20 LFN 2004 and the Harmonised Terms and Conditions of Service for Officers (HTACOS) 2017. “There is no written law or statutory provision that a senior officer must retire when an officer junior to him is appointed as a Service Chief,” she stated in her paper. “I therefore encourage both serving and retired members of the Armed Forces of Nigeria to seek directions and interpretations as to the ‘wasteful tradition’ of retiring senior officers prematurely.”

Highlighting the irony in military personnel policies, the judge contrasted the denial of voluntary resignations for junior officers with the compulsory retirement of seasoned seniors. “It is not appropriate to retire high-ranking members of the armed forces with their vast knowledge and experience, given our ongoing and ever-increasing security threats and challenges,” she noted, advocating for the establishment of a Nigerian Defence Reserve Force (NDRF) to enlist fit retired officers for continued national service.

On the right to voluntary resignation or retirement, Justice Anuwe affirmed that Section 306(1) and (2) of the Constitution grants officers in constitutionally established offices—such as the Armed Forces under Section 217—the absolute right to resign upon notice. “The resignation shall take effect when the writing signifying the resignation is received by the authority,” she explained, citing precedents like Elkanah John Garang v. The Chief of Air Staff (NICN/ABJ/117/2023) and Adefemi v. Abegunde [2004] 15 NWLR (Pt. 895) 1. Any refusal, she warned, constitutes forced labour under Section 34(1)(c) of the Constitution and Section 73(1) of the Labour Act 2004.

The paper also critiqued the controversial “15-year Voluntary Disengagement Rule” under HTACOS 2017, which bars officers from resigning before 15 years of service to recoup training investments. While acknowledging its intent to maintain discipline, Justice Anuwe argued it undermines individual freedoms and democratic principles. “A more thorough study reveals that it undermines fundamental issues such as individual freedom, the limits of state authority, and the scope of military service in a democracy,” she wrote, labeling it “disproportionate” for lacking exceptions for hardship, mental health, or administrative review.

She referenced the NICN’s recent ruling in Akerele Adedoyin Jeremiah v. The Chief of Air Staff (NICN/ABJ/25/2025), where an officer’s resignation was upheld despite violating the rule, reinforcing constitutional supremacy. Justice Anuwe commended the National Assembly’s ongoing review of the AFA, calling for armed forces’ collaboration to align it with international best practices from nations like Britain, India, the US, and Canada, where promotions blend merit, performance, and seniority with robust review mechanisms.

Addressing jurisdiction, the judge clarified that the NICN holds exclusive authority over military labour disputes under Section 254C(1) of the Constitution (as amended) and the NIC Act 2006, provided internal remedies under Section 178 of the AFA are exhausted first. She also discussed the Public Officers Protection Act’s three-month limitation period for suits against military personnel as public officers, noting exceptions for bad faith, abuse of office, or contractual breaches.

In conclusion, Justice Anuwe stressed that military law cannot be isolated from broader labour jurisprudence or the Constitution’s grundnorm status. “Reforming the intersection of labour law and military service may involve addressing issues of personnel welfare and the need for effective military discipline,” she said. “Improving welfare and making the service a ‘career-worthy’ option could be the first line of defence against early exits.”

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