Introduction

The doctrine of election is a common law doctrine that has become part of our Nigerian laws. The doctrine entails that once a person takes a benefit under a deed or instrument, he must also bear its burden; thus, he cannot approbate and reprobate.

This brief article reviews the decision of the Supreme Court in Fanyam v Gov. Benue State. The article is divided into 5 (five) parts: this introduction, facts of the case, the Supreme Court’s decision, analysis and conclusion.

Facts of the Case

The Appellant in this appeal, Mr Fanyam, was appointed the Director of Civil Litigation in the Benue State Ministry of Justice sometime in 1995. His appointment was later confirmed by a letter dated 23rd November 1998. At the time the letter of appointment was written, Mr Fanyam was serving as the 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 Mr Fanyam 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, Mr Fanyam filed a suit at the High Court of Benue State challenging his removal. The trial Court dismissed his case. 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 the 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/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 trial Court’s decision, 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.

The Supreme Court’s Decision

In a well-considered judgment delivered by Hon. Justice Okoro JSC, the Supreme Court unanimously dismissed the appeal. The Court decided that because the Appellant accepted a higher and distinct office, he had elected to occupy that position and forego his position as the Director of Civil Litigation. Furthermore, the Court found that the moment Mr Fanyam left the office of the Director of Civil Litigation, the office was occupied by another and that there was nothing on record to show that he was to return to that office after serving as the Solicitor General/ Permanent Secretary.

Analysis

As rightly decided by the Court, the position of a director is one of the highest positions in the civil service whilst that of the Permanent Secretary is a distinct office with a political nature. Thus, given that Mr Fanyam had elected to occupy the position of Solicitor General/Permanent Secretary, he was no longer entitled to the proper removal that regular civil servants were entitled to.

According to the Black laws dictionary, the term “election” could be well explained as the act of choosing or selecting one or more from a greater number of persons, things, courses, or rights. The choice of an alternative. It could also be referred to as the internal, free, and spontaneous separation of one thing from another, without compulsion.

This definition further buttresses the explanation that Lord Hather in the House of Lords gave, concerning the doctrine of election. In Cooper v. Cooper L.R 7, H.L. 53 at p. 69, Lord Hather explained the principle underlying the doctrine of election in the following words:

“ …. there is an obligation on him who takes a benefit under a will or other instrument to offer full effect thereto instrument under which he takes a benefit; and if it’s found that instrument purports to affect something which it had been beyond the facility of the donor or settlor to eliminate, but to which effect are often given by the concurrence of him who receives a benefit under an equivalent instrument, the law will impose on him who takes the benefit the requirement of carrying the instrument into full and complete force and effect .”

The doctrine of election is similar to the doctrine of remedies which entails that if two or more remedies exist which are repugnant and inconsistent with one another, a party will be bound if he has chosen one of them. See Mohammed v Husseini (1998) 14 NWLR (Pt. 584) 108 (P. 159, paras. A-C).

In straightforward words, this doctrine contains the rule that a wilful decision by an individual to do one of several things ties him to the decision that he has wilfully made. This is established on the impartial tenet that he who acknowledges the advantages of instruments or exchange of his decision should take all of it or revoke everything conflicting with it.

This decision could serve as an example for Nigerian civil servants to ensure that adequate plans and assurances are received when moving into political positions. Based on the doctrine of election, one may choose the benefits of one above the other. Meaning that as a former civil servant, then political appointee one has chosen to obtain the full benefit of their appointed political position and forfeit their civil service position.

Conclusion

In conclusion, the doctrine of election cannot simply support the notion of one returning to an office where the officer had chosen to occupy a different office. In the circumstance that a civil servant becomes a political appointee, the doctrine only gives room for a choice to be made between the two. Once a decision is taken and the officer enjoys some benefits from the election, he is precluded from taking advantage of the other office.  

I give special credit to my colleague in equity, Ms Debrah Medugu with whom I developed this article.