EQUITY – DOCTRINE OF ELECTION – Meaning and application of the doctrine of election


“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.” Per AMINA ADAMU AUGIE, JSC in FANYAM v. GOV. OF BENUE STATE & ORS (2022-LCER-46523-SC) (Pp 20 – 22; Paras C – A)

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