FACTS
The Appellant was employed by the Benue State Government as Director of Civil Litigation on January 23, 1995 and he remained in that position until January 9, 1998 when he was appointed the Director-General/Solicitor-General which office was later re-designated Solicitor General/Permanent Secretary. The said appointment took effect during the military administration and the Appellant held office until May, 1999 when the civilian administration took over and inherited the Appellant.

At the time the Appellant was appointed the Director General/Solicitor General, another person was appointed the Director of Civil Litigation. Meanwhile, the Appellant remained in the office of Solicitor General/Permanent Secretary until January 13, 2000 when he was removed at the pleasure of the Executive Governor of Benue State.

Aggrieved by his removal, the Appellant filed a suit challenging his removal as Solicitor General/Permanent Secretary but lost. Thereafter, the Appellant went back to the High Court seeking an order of mandamus to compel the Respondents herein to re-instate him into office as the Director of Civil Litigation based on the pronouncement in the suit he lost which had held that Appellant’s removal was from the office of Permanent Secretary, a political office under the 1999 Constitution and not from the pensionable civil service appointment of Director of Civil Litigation. However, the trial High Court ruled against the Appellant and dismissed his claim before it. Dissatisfied, the Appellant appealed to the Court of Appeal, Jos. The Court of Appeal dismissed the appeal. Further dissatisfied, the Appellant appealed to the Supreme Court.

ISSUES FOR DETERMINATION
The appeal was determined upon consideration of 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.

APPELLANT’S SUBMISSION
The Appellant, in the brief he personally signed, submitted that the essence of the doctrine of election is that equity cannot allow a person to take a benefit under an instrument and at the same time assert a right, which is inconsistent with the provisions of the instrument. Referring to Exhibits A and B (his Appointment Letter and Letter of Confirmation of Appointment respectively), he submitted that he was not put to any election in any of the documents. Thus, the Courts cannot import into the contract a doctrine that none of the parties envisaged.

Appellant further contended that the appointment which the Respondents gave him in Exhibit A and Exhibit b has not been brought to an end till date. He stressed that the application for Mandamus relates wholly to that appointment as Director of Civil Litigation. He contended that until he is properly removed from office in accordance with Civil Service Rules, there exists a legal right to which he is entitled and the person to give effect to that right is the employer, the Respondents who owe him the duty to post him to an office, pay him salaries, allowances and all other benefits to which he is statutorily entitled.

The Appellant further submitted that Mandamus does not issue only to execute an existing judgment but that once it is shown that the appellant has a legal right and the respondents has a correlative duty to that right, Mandamus will be issued to protect the right and render it effectual.

RESPONDENTS’ SUBMISSION
Respondents’ counsel submitted in his brief that the appointment of the Appellant as Director, Civil Litigation was relinquished by the Appellant who “elected” for a higher appointment. He never applied for any leave of absence but elected to take the higher post. He ought to have properly disengaged from office before taking on another appointment and that this brings in clear focus the doctrine of election as defined by Black’s Law Dictionary.

Respondents’ counsel submitted that the Appellant’s earlier suit was dismissed in its entirety including the consequential order in which he sought to be reinstated as Director of Civil Litigation and therefore, there was no enforceable order of the Court directing the Respondents to act which they failed and could be compelled by an order of Mandamus.

Relying on Order 43 Rule 4(1) of the High Court of Benue State (Civil Procedure) Rules 1998, applicable at that time of the case, Respondents’ counsel submitted that there would have been substantial hardship and/or substantial prejudice to the right of the person appointed to the office abandoned by the Appellant for a higher office.

RESOLUTION OF ISSUES
The Court quoted with approval the Black’s Law Dictionary, 9th Edition at page 595, where it defines election as the exercise of a choice from several possible rights or remedies in a way that precludes the use of other rights or remedies; an obligation imposed on a party to choose between alternative rights or claims, so that the party is entitled to enjoy only one. The Court thus held that that the Appellant chose and enjoyed the rights and privileges of a higher office distinct and separate from the office of Director Civil Litigation. The Court further held that had the Appellant not accepted the higher office appointment and stuck to his pensionable employment as Director Civil Litigation, he would not have been removed unceremoniously.

The Court however held that a public servant in the established pensionable cadre of the Federal or State Public Service has a legal status and ex hypothesis a right to remain in service until properly removed in accordance with the Civil Service Rules applicable to him. But this was not the case here. See Federal Capital Development Authority v Naibi (1990) 3 NWLR (pt.138) 270; Shitta-Bey v Federal Public Service Commission (1981) 1 SC 40.

The Court held that an order of mandamus is an order issued by a Court of law, usually the High Court, to compel the performance of a public duty in which the person applying for same (mandamus) has sufficient legal interest. And to succeed in an action for mandamus, it is mandatory for an Applicant to show that he has a legal interest or right which he seeks to protect. The Applicant must also show the existence of a public duty on the part of the person or body against whom he applies for an order of mandamus. See Ohakim v Agbaso (2011) 47 NSCQR 324 at 367.

The Court held that the Appellant had lost any right to the office of Director Civil Litigation when he elected to accept appointment as Permanent Secretary/Solicitor General, an office with higher responsibility and conditions of service, and as such, the Respondents did not owe the Appellant any public duty which they could be compelled to act through mandamus. The Court thus held that the Appellant failed to establish sufficient legal interest in the subject matter of this case and the existence of a public duty for which an order of mandamus could be issued to compel them to act in his favour.

HELD
The Court held that there was no merit in the appeal and accordingly dismissed same.

APPEARANCES
I. Akighirga, Esq.
– For Appellant(s)

No representation for the Respondents.
Compiled by LawPavilion