FANYAM v. GOV. OF BENUE STATE & ORS
(2022)LCN/16348(CA)
In The Supreme Court
On Friday, February 04, 2022
SC.296/2008
Before Our Lordships:
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria
Between
G. S. FANYAM APPELANT(S)
And
1. THE GOVERNOR OF BENUE STATE 2. THE ATTORNEY-GENERAL OF BENUE STATE 3. CIVIL SERVICE COMMISSION, BENUE STATE RESPONDENT(S)
RATIO:
DEFINITION OF ELECTION
Black’s Law Dictionary, 9th Edition at page 595, defines election as follows: –
“1. The exercise of a choice; especially, the act of choosing from several possible rights or remedies in a way that precludes the use of other rights or remedies… 2. The doctrine by which a person is compelled to choose between accepting a benefit under a legal instrument and retaining some property right to which the person is already entitled; an obligation imposed on a party to choose between alternative rights or claims, so that the party is entitled to enjoy only one …” JOHN INYANG OKORO, J.S.C.
POSITION OF LAW ON THE REMOVAL OF A PUBLIC SERVANT IN THE FEDERAL OR STATE SERVICE
It has to be noted 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. Alas, this is 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, Olaniyan v University of Lagos (1985) 2 NWLR (pt.9) 599. JOHN INYANG OKORO, J.S.C.
MEANING AND USAGE OF AN ORDER OF MANDAMUS
An order of mandamus, simply put, 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, Shitta-Bey vs Federal Public Service Commission (supra), Fawehinmi v IGP & Ors (2002) LPELR-1258 (SC), Ayida & Ors v Town Planning Authority & Anor (2013) LPELR-20410 (SC). JOHN INYANG OKORO, J.S.C.
MEANING AND POSITION OF LAW OF AN ORDER OF MANDAMUS
It is settled law that an Order of Mandamus is a high prerogative writ which lies to secure the performance of a public duty in the performance of which the applicant has a sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily, is imposed by statute but is neglected or refused to be done after due demand, be done. ABDU ABOKI, J.S.C.
MEANING AND POSITION OF LAW OF AN ORDER OF MANDAMUS
In Ayida & Ors v. Town Planning Authority & Anor (2013) LPELR 20410 (SC), this Court opined thus:
“Mandamus is a writ issued by a Court to compel the performance of a particular act by an Administrative Body. It is on equitable remedy granted of the discretion of the Court and as with all exercise of discretion the Judge is expected to consider the rules governing it and not act as he likes. ABDU ABOKI, J.S.C.
POSITION OF LAW OF AN ORDER OF MANDAMUS
Before the Writ of Mandamus is granted by a Judge, the Judge must be satisfied that the applicant has sufficient interest in the matter to which the application relates and that he demanded the performance of a public duty from the Administrative Body (or those responsible) and they refused to comply. There is also the added responsibility for the demand to be made timeously. Consequently, any person who approaches the Court asking that the law should be enforced provided he is affected by it has sufficient interest. The Court will not entertain on application from a busybody or meddlesome interlopers who interfere in things that do not concern them, but would readily entertain an application from a person who asks that the law should be declared and enforced.”
See also: Fawehinmi v. IGP & Ors. (2002) LPELR 1258 (SC). ABDU ABOKI, J.S.C.
JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Jos Division delivered on 11th December, 2006 wherein the Appellant’s appeal against the decision of the Benue State High Court was dismissed. The Appellant had unsuccessfully sought the orders of mandamus to issue against the Respondents to compel them to re-instate him into the Benue State Civil Service as the Director Civil Litigation, Ministry of Justice. Brief facts leading to this appeal will suffice.
The Appellant was employed by the Benue State Government as Director of Civil Litigation on 23rd January, 1995 and the Appellant remained in that position until 9th January, 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, Samson S. Itodo, Esq now Hon. Justice Samson S. Itodo of Benue State Judiciary was appointed the Director of Civil Litigation, a position he held until his elevation to the Bench in 2001.
Meanwhile, the Appellant remained in the office of Solicitor General/Permanent Secretary until 13th January, 2000 when he was removed at the pleasure of the Executive Governor of Benue State. Aggrieved by his removal, the Appellant filed suit No MHC/34/2000 challenging his removal as Solicitor General/Permanent Secretary. The Appellant lost that suit in a considered judgment delivered by E. N. Kpojimi, J, on 19th June, 2001.
About sixteen months after the judgment in suit No. MHC/34/2000, 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. In its ruling dated 11th November, 2002, the trial High Court ruled against the Appellant and dismissed his claim before it. It was the reasoning of the learned trial Judge, T. Tur, J that the Appellant having accepted to serve as Solicitor General and Permanent Secretary, was caught by the doctrine of election and thus could not be brought back to serve as Director of Civil Litigation again.
Dissatisfied with the decision of the learned trial Judge, the Appellant appealed to the Court of Appeal, Jos and on the 11th December, the lower Court dismissed the appeal, Further dissatisfied, the Appellant filed notice of appeal on 12th February, 2007 containing five grounds of appeal out of which the Appellant has distilled two issues for the determination of this appeal.
On 9th November, 2021, at the hearing of this appeal, the Appellant herein who was represented by I. Akighirga, Esq, adopted his brief of argument he filed on 20th November, 2008 and urged the Court to allow the appeal. The two issues as can be found on page 4-5 of the brief are as follows:-
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.
Also, in the brief of argument settled by V. Y. Ayongar, Esq, Director of Public Prosecutions, for the Respondents, which was filed on 5th March, 2010, two similar issues are formulated but couched differently thus:-
1. Whether the Court of Appeal was right in affirming the ruling of the trial High Court based on the reasoning that the doctrine of election applied to preclude the appellant from aprobating and reprobating in relinquishing a lower post for a higher one in the civil service of Benue State.
2. Whether the Appeal Court was right in dismissing the appellant’s appeal based on the ground that the appellant had failed to establish his claim for the prerogative order of mandamus to warrant the issue of that order in his favour.
I intend to be guided by the two issues formulated by the appellant as agreed by the respondent in determining this appeal. Respondents were unrepresented at the hearing of this appeal though their brief was filed and served. Their brief is deemed argued vide the rules of this Court.
ISSUE ONE:-
In arguing issue one, Mr. G. S. Fanyam, 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 (Appointment letter and letter of confirmation of appointment respectively) he submitted that he was not put to any election in any of the documents. It is absurd, according to him, that the Courts are now importing into the contract a doctrine that none of the parties envisaged at the creation of the contract. He opined that the case of Lissenden v C. A. V. Bosch Ltd (1940) AC 412 relied upon by the Court below was misapplied. That applying the principle in Lissenden’s case to the present appeal will lead to the result of allowing this appeal and setting aside the decision of the Court of Appeal. He contended that there is no one in the position of testator or donor in this case and that exhibits A and B cannot be said to have put the appellant to his election between two rights. According to him, where these elements are lacking, it cannot be said that this is a case where the doctrine of election does apply. He concluded that the Court below was clearly wrong in its decision and he urged this Court to resolve this issue in favour of the appellant and allow the appeal.
In response, the learned counsel for the Respondents, who was absent from Court though duly served with hearing notice, 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. That he never applied for any leave of absence but elected to take the higher post and left unceremoniously. That 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. He urged the Court to resolve this issue against the Appellant.
RESOLUTION
My Lords, one of the facts well settled in this case is that at the time the Appellant was offered appointment as Permanent Secretary/Solicitor General in the Ministry of Justice, Benue State, he was already serving as Director of Civil Litigation in the same Ministry. Secondly, the new appointment as Director general and later renamed Permanent Secretary during the Military era was at the pleasure of the Governor who appointed him. Thirdly, the new appointment was not a promotion but a fresh appointment with conditions of service distinct from that of Director of Civil Litigation. With the above scenario, the Appellant had two offices before him which he had the power to choose, either the permanent and pensionable office of Director Civil Litigation or that of Director General or Permanent Secretary/Solicitor General. The Court below made it clear in its judgment on page 109 of the record that the Appellant “conceded that the post of Solicitor General and Permanent Secretary offered to him was not on promotion/elevation from the post of Director, Civil Litigation. That he also knew that the post of Solicitor General and Permanent Secretary has distinct conditions of service from the post of Director Civil Litigation.” And yet the Appellant elected to accept the new higher appointment, thus jettisoning his earlier office of Director Civil Litigation. The two Courts below accepted that the appellant, having elected to serve in the new office, had abandoned the office of Director, Civil Litigation and therefore, cannot be restored to the said office upon the end of his tenure in the office of Permanent Secretary and Solicitor General on conditions obtainable then.
The Court below on page 109 of the record, made the following far reaching observations and conclusions as follows:-
“I agree with the learned trial Judge that this is an appropriate case that doctrine of election could be invoked. The doctrine does apply where the person concerned has a choice of two rights, either of which he is at liberty to choose, but not both, If the person to whom the choice belongs irrevocably and with knowledge, adopts the one, he cannot afterwards assert the other. See Lissenden vs C.A.V Bosch Ltd (1940) A. C. 412.
The doctrine of election has a place in the present case, The Appellant is faced with two rights or two courses open to him, namely:-
1. rights to accept the offer of new appointment as Solicitor-General and Permanent Secretary, then complied with the Civil Service Rules relating to transfer from one senior post to another or from one class to another within the State service; or
2. reject the offer of the new appointment, and continue with his post of Director Civil Litigation.”
The Court below went on to conclude on the same page as follows:-
“The above two rights, either of which the Appellant is at liberty to choose but not both. The Appellant with his knowledge opts to accept the offer of the higher appointment as Solicitor-General and Permanent Secretary, Accepting the offer after knowing fully that he has a free will to either accept or reject it, he cannot afterwards, upon removal assert the other post. This means he wants to blow cold and hot at the same time. That is not possible. Consequently, the Appellant is rightly caught by the doctrine of election, and this view I hold.”
Black’s Law Dictionary, 9th Edition at page 595, defines election as follows:-
“1. The exercise of a choice; especially, the act of choosing from several possible rights or remedies in a way that precludes the use of other rights or remedies… 2. The doctrine by which a person is compelled to choose between accepting a benefit under a legal instrument and retaining some property right to which the person is already entitled; an obligation imposed on a party to choose between alternative rights or claims, so that the party is entitled to enjoy only one …”
From all I have said above, it is crystal clear 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 facts of this case clearly show that the office of Director Civil Litigation was filled immediately the Appellant left. There is nothing on record to show that the Appellant was to return to that office upon completion of his tenure as Permanent Secretary/Solicitor General. Appellant has not challenged the decision of the Court below that he conceded that the post of Solicitor General and Permanent Secretary offered him was not on promotion [elevation from the post of Director Civil Litigation. He has also not challenged the decision that he knew that the post of Solicitor General and Permanent Secretary has distinct conditions of service from the post of Director Civil Litigation. No wonder the Appellant has not pursued any appeal against the judgment of the Benue State High Court in suit No. MHC/34/2000 which he claimed damages for wrongful removal from office and lost. That had to do with his removal from office as Permanent Secretary/Solicitor General. He appears to have accepted that in good faith. Having accepted his removal from office of Permanent Secretary and Solicitor General, I agree with the Court below that he cannot by any stretch of imagination revert to his extinct office as Director Civil Litigation.
Let me state clearly 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 as done in the instant case.
It has to be noted 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. Alas, this is 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, Olaniyan v University of Lagos (1985) 2 NWLR (pt.9) 599.
Appellant did not show how the Court below misapplied the case of Lissenden v C. A. V. Bosch Ltd (1940) A. C. 412 in respect of the doctrine of election by him. The two Courts below were right in holding that the appellant, having elected to enjoy the perquisite of office of Permanent Secretary [Solicitor General, cannot revert to the office of Director Civil Litigation as there is no provision for such arrangement. This issue, as I see, does not avail the Appellant at all. It is accordingly resolved against him and in favour of the Respondents.
ISSUE TWO
This issue relates to the decision of the Court below that the Appellant failed to show sufficient legal interest in the subject matter of the application he brought before the High Court and that he failed to show the existence of a public duty on the respondents to be exercised in his favour.
In his argument, the Appellant submitted that the point was completely missed by the Court below when it held that the application for Mandamus was predicated on the judgment of Kpojime, J in suit No. MHC/34/2000 which was attached to the application as exhibit ‘C’. That it was the contention of the Appellant both at the trial Court and the Court of Appeal 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.
Learned counsel submitted that Exhibit A, the letter of offer of permanent and pensionable appointment and Exhibit B, the confirmation of the said appointment, without being brought to an end by way of termination or dismissal or retirement create a legal right in favour of the appellant, the right to be posted to an office, the right to earn salaries, allowances and all other benefits accruing to that office. He further contended that unless and until the appellant 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. It is his view that the Court below failed to consider the sufficiency or otherwise of Exhibits A, B and C in grounding an action for Mandamus and that made it to arrive at a wrong decision. Learned counsel concluded that the Respondents have a duty in law to give effect to his existing appointment in exhibits A and B and that the duty is ministerial and does not involve any element of discretion or independent judgment, relying on Shitta-Bey v Federal Public Service Commission (supra). He urged the Court to resolve this issue in his favour.
In response, the learned counsel for the Respondents submitted that in the case of the appellant, his 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. Learned counsel questioned what acts of the Respondents in relation to the appointment of the Appellant as Director Civil Litigation which the Appellant is complaining about. He contended that the Appellant’s appointment as Director Civil Litigation was not terminated wrongly, rather, it was the Appellant who accepted a higher position in the government and thereby relinquished the position of Director of Civil Litigation to S. O. Itodo Esq, now Hon. Justice Samson O. Itodo of Benue State Judiciary.
Relying on Order 43 Rule 4(1) of the High Court (Civil Procedure) Rules 1998, applicable at that time of the case, he submitted that there would have been substantial hardship to and/or substantial prejudice to the right of the person appointed to the office abandoned by the appellant for a higher office. He urged the Court to resolve this issue against the Appellant.
The Appellant filed a reply brief but a perusal of same shows clearly that it is a rehearsal of the main brief. The purpose of a reply brief is not to reargue the appeal but to respond to new issues of law which may have been raised by the respondents. There is no such thing in this reply brief. I accordingly discountenance the said reply brief.
RESOLUTION:-
The decision of the Court below which the appellant is attacking in this issue can be found on page 113 of the record of appeal which states:-
“Having regard to the decision reached above by the learned trial Judge, Kpomiyi, J and which the Appellant relies upon to establish that he has a legal right which he wants to be enforced by order of mandamus, I am of the view that such right does not exist I therefore agree with the decision of the learned trial Judge, Tur, J that exhibit C did not make or grant any declaratory reliefs in favour of the Appellant which can be enforced by way of mandamus.
In the final analysis, 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.”
An order of mandamus, simply put, 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, Shitta-Bey vs Federal Public Service Commission (supra), Fawehinmi v IGP & Ors (2002) LPELR-1258 (SC), Ayida & Ors v Town Planning Authority & Anor (2013) LPELR-20410 (SC).
As was rightly, in my opinion, stated by the Court below in the quotation above, the appellant did not show that he had any legal right or interest to protect or fight for. He did not also show that the respondents had any public duty to perform in his interest. As already argued and agreed by both parties in this appeal, the appellant knew very well that he had abandoned or jettisoned the office of Director of Civil Litigation when he chose to accept a higher office of Permanent Secretary/Solicitor General. He conceded that both are different and carry different conditions and consequences. The truth is, as was observed by both the learned trial Judge and the Court below, the Appellant’s appointment as Director of Civil Litigation was not terminated either rightly or wrongly. Rather, it was the appellant who accepted a higher position in the government and thereby relinquished the position of Director of Civil Litigation. When he left that office, there is nothing to show that it was agreed that he would return to it. That was why the Respondents appointed another person(s) into that office. In fact, the Appellant knew he had lost that office and that was why in his suit No. MHC/34/2000, which produced Exhibit C, he did not ask for reinstatement to the office of Director Civil Litigation. Rather he challenged his removal as Solicitor General/ Permanent Secretary. It was after he lost that case and based on the comments of the learned trial Judge in respect of the office of Director Civil Litigation that the Appellant decided to try his luck by asking for order of mandamus to compel the respondents to reinstate him to the office of Director Civil Litigation.
My Lords, it is my view 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. That being the case, the Respondents did not owe the Appellant any public duty which they could be compelled to act through mandamus. I agree with the Court below 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. I accordingly resolve this issue against the Appellant.
Having resolved the two issues against the Appellant, I hold that there is no merit in this appeal and same is hereby dismissed by me. I affirm the judgment of the Court of Appeal delivered on 11th December, 2006. I make no order as to costs.
Appeal Dismissed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft, the lead judgment of my learned brother John Inyang Okoro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal lacks merit and deserves to be dismissed. Accordingly, it is dismissed by me.
Appeal dismissed.
AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Okoro, JSC, and I agree with him that this appeal lacks merit.
Election means choosing between two alternative rights or inconsistent rights, therefore, if an instrument confers two rights on an individual in such a fashion that one right is in lieu of the opposite, that person can only choose or elect one of the rights.
The doctrine of election is predicated on the principle of equity that one cannot take what is beneficial to him and disapprove that which is against him under an equivalent instrument. So, where an individual takes some benefit under a deed or instrument, he must also bear the burden – Law Times Journal. In this case, the Appellant was the Director, Civil Litigation, Benue State Ministry of Justice, when he accepted an appointment as the Director General/Solicitor-General, later redesignated Solicitor General/Permanent Secretary.
By a radio announcement on 13/1/2000, the first Respondent appointed another person to replace him as the Solicitor-General/Permanent Secretary. The Appellant sued the Respondents at the Benue State High Court, where he claimed damages for wrongful removal. The Court held that his removal was from the office of Permanent Secretary, a political office under the Constitution, not from the pensionable Civil Service appointment of Director, Civil Litigation, and dismissed the said claim. The Appellant later obtained leave to apply for an Order of Mandamus to compel the Respondents to return him to his office as Director, Civil litigation and pay him all arrears of salaries, allowance, and other benefits to which he is entitled. In dismissing the said Application, the trial High Court held that the appellant was caught by the said doctrine of election.
His appeal to the Court of Appeal was dismissed because, in its view, “accepting the offer after knowing fully that he has a free will to either accept or reject it, he cannot afterwards, upon removal assert the other post”. I agree. I also agree with the Court of Appeal’s conclusion that “the Appellant is rightly caught by the doctrine of election”. The Appellant relinquished his appointment as Director, Civil Litigation when he opted for the position of Solicitor-General [Permanent Secretary. There is no better example of the doctrine of election.
It is for this and the other well-marshaled reasons in the lead judgment that I also dismiss this appeal and affirm the decision of the Court of Appeal.
I also make no order as to Costs.
ABDU ABOKI, J.S.C.: I had the privilege of reading before now, the judgment of my learned brother, JOHN INYANG OKORO, JSC just delivered. I agree with His Lordship that the Appellant has not shown sufficient legal interest that could be enforced by an Order of Mandamus.
This appeal is against the judgment of the Court of Appeal, sitting at Jos, delivered on the 11th of December, 2006.
The facts leading to this appeal is that the Appellant was appointed the Director of Civil Litigations, in the Benue State Ministry of Justice, sometime in 1995. The appointment 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, in the following terms:
1. A declaration that the Plaintiff not having attained the statutory retirement age of 60 years and having served for only 5 years, was wrongfully removed from office by the Defendants.
2. A declaration that the wrongful removal of the Plaintiff from office by the Defendants is a breach of the Plaintiff’s contract of employment that entitles the Plaintiff to damages.
3. Special damages of N12,878,996.00 (Twelve Million, Eight Hundred and Seventy-Eight Thousand Nine Hundred and Ninety-Six Naira only, representing the following breakdown:
i. Monthly salary for the remaining 187 months of the contract at N35,516.00 per month i.e. N35,516.00 per month, i.e. N35,516.00 x 187 = N6,641,492.00
ii. Gratuity for the period of 20 years the Plaintiff would have put in upon attaining the retirement age of 60 i.e. N426,192 x 2 = N852,384.00
iii. Pension for at least 10 years after retirement at N35,516.00 x 120 = N4,261,920.00
iv. Furniture allowance for the remaining 15 years of the contract at N280,800.00 per every 4 years i.e, N280,800.00 x 3 = N842,400.00
v. Leave grant at N18,720 per annum for the remaining 15 years of the contract, i.e. N18,720 x 15 = N280,800.00
TOTAL SPECIAL DAMAGES: N12,878,996.00
On the 19th of June 2001, the trial Court dismissed the case of the Appellant.
Subsequently, by a Motion on Notice dated the 10th of October, 2002, the Appellant sought and obtained leave of the trial Court to apply for an order of Mandamus to compel the Respondents to perform a public duty in his favour, namely, 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, He claimed that the trial Court in its judgment of 19th June 2001 had made a declaration in his favour that could be enforced by an order of Mandamus.
After hearing arguments from both sides, the trial Court in its ruling delivered on the 11th of November 2002, 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, and/or be enforced, since he elected to serve as a Permanent Secretary.
Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court below, and in its judgment, the Court below 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 this Court, vide a Notice of Appeal filed on the 12th of February, 2007, containing five (5) grounds.
The Appellant has argued that the trial Court made a declaration in his favour which is capable of being enforced by an order of mandamus, and the Court below erred in refusing the prerogative order of mandamus, in his favour.
It is settled law that an Order of Mandamus is a high prerogative writ which lies to secure the performance of a public duty in the performance of which the applicant has a sufficient legal interest. It gives a command that a duty or function of a public nature, which normally, though not necessarily, is imposed by statute but is neglected or refused to be done after due demand, be done.
In Ayida & Ors v. Town Planning Authority & Anor (2013) LPELR 20410 (SC), this Court opined thus:
“Mandamus is a writ issued by a Court to compel the performance of a particular act by an Administrative Body. It is on equitable remedy granted of the discretion of the Court and as with all exercise of discretion the Judge is expected to consider the rules governing it and not act as he likes. Before the Writ of Mandamus is granted by a Judge, the Judge must be satisfied that the applicant has sufficient interest in the matter to which the application relates and that he demanded the performance of a public duty from the Administrative Body (or those responsible) and they refused to comply. There is also the added responsibility for the demand to be made timeously. Consequently, any person who approaches the Court asking that the law should be enforced provided he is affected by it has sufficient interest. The Court will not entertain on application from a busybody or meddlesome interlopers who interfere in things that do not concern them, but would readily entertain an application from a person who asks that the law should be declared and enforced.”
See also: Fawehinmi v. IGP & Ors. (2002) LPELR 1258 (SC)
The Appellant herein, has not shown any legal right or interest to protect and/or fight for. By electing to serve a higher position in Government as Permanent Secretary/Solicitor General, he relinquished his position as Director of Civil Litigation. He no longer had any legal right or interest to protect, for which an Order of Mandamus could lie against the Government.
It is for these reasons, and the more elaborate reasons contained in the lead judgment of my brother, JOHN INYANG OKORO, JSC, that I also find this appeal to be unmeritorious, and accordingly dismiss it, I abide by the order as to costs.
EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice JOHN INYANG OKORO, JSC. I agree with the reasoning, conclusions and decision therein.
Appearances:
I. Akighirga, Esq. For Appellant(s)
No representation for the Respondents
There is however proof of service on the Respondents For Respondent(s)