Application of the Doctrine of Election

CASE TITLE: FANYAM v. GOV. OF BENUE STATE & ORS (2022) LPELR-57035(SC)

JUDGMENT DATE: 4TH FEBRUARY, 2022

PRACTICE AREA: ADMINISTRATIVE LAW

LEAD JUDGMENT: JOHN INYANG OKORO, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on Order of Mandamus.

FACTS:

This appeal is against the judgment of the Court of Appeal, sitting at Jos, delivered on the 11th of December, 2006.

​The Appellant was appointed the Director of Civil Litigations, in the Benue State Ministry of Justice, sometime in 1995, which was later confirmed by a letter dated 23rd November, 1998.

At the time the letter of appointment was written, the Appellant was serving as the Director-General/Solicitor-General, which office was later re- designated Solicitor-General/Permanent Secretary. The Appellant remained in the office of the Solicitor General/Permanent Secretary, until January 2000, when the new civilian administration of Benue State appointed someone else as the Solicitor General/Permanent Secretary. No mention was made about the deployment of the Appellant or the termination of his appointment as the Director of Civil Litigations, Benue State Ministry of Justice.

Aggrieved by his removal as the Solicitor General/Permanent Secretary, the Appellant filed a suit at the High Court of Benue State/ challenging his removal. The trial Court dismissed the case of the Appellant.

​Subsequently, by a Motion on Notice, the Appellant sought and obtained leave of the trial Court to apply for an order of Mandamus to compel the Respondents to return him to his office as Director of Civil Litigation and to pay him all salaries, allowances and other benefits to which he is entitled from February 2000. The application was based on the fact that he was still the Director of Civil Litigation.

The trial Court held that the Appellant was caught by the doctrine of election in accepting to serve as Solicitor General and Permanent Secretary in the Ministry of Justice, where he served as Director of Civil Litigation before he was appointed as Solicitor General and Permanent Secretary, and that there was no foundation upon which the Order of Mandamus could stand, or be enforced, since he elected to serve as a Permanent Secretary.

​Dissatisfied, the Appellant appealed to the Court of Appeal.

In its judgment, the Court of Appeal affirmed the decision of the trial Court, holding that there was no declaration made by the trial Court in his favour which could be enforced by an order of mandamus.

Still dissatisfied, the Appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The appeal was determined on the following issues:

1, Whether the Court of Appeal was right in confirming the decision of the trial High Court that the doctrine of election applies in this case to preclude the Appellant from suing for an order of MANDAMUS to issue to give effect to his statutory employment,

2. Whether the Court of Appeal was right in holding that the Appellant has failed to establish sufficient legal interest and the existence of a public duty for which an order of mandamus can be issued to compel the respondents to act in his favour.

DECISION/HELD:

In the final analysis, the appeal failed and was dismissed.

RATIOS:

• ADMINISTRATIVE LAW – ORDER OF MANDAMUS: Meaning of order of mandamus; what an applicant must show before the court will make an order of mandamus
• EQUITY – DOCTRINE OF ELECTION: Meaning and application of the doctrine of election
• PUBLIC SERVICE – PUBLIC SERVANT: The position of the law as regards a public servant in the established pensionable cadre of the Federal/State Public Service