Fanyam v. Gov. Of Benue State & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

JOHN INYANG OKORO, J.S.C. (Delivering the Lead 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.