LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Contracting Out vs Contracting In – Distinction
PRINCIPLE STATEMENT
The case before us here is not that of 'contracting out' but rather that of 'contracting in'. Section 7(1) vests no property in the plaintiff anywhere and it will be wrong and unacceptable to give it that meaning which the plaintiff seeks in this suit. Just as the parties cannot contract out of the provisions of section 7(1) as far as the properties vested in the defendant are concerned, so also the plaintiff cannot 'contract into' the subsection which vested nothing in it by claiming that it vested something in it.
RATIO DECIDENDI (SOURCE)
Per Kutigi, JSC, in A.G., Ondo State v. A.G., Ekiti State (2001) NLC-1362000(SC) at p. 30; Paras A–D.
"The case before us here is not that of 'contracting out' but rather that of 'contracting in'. Section 7(1) vests no property in the plaintiff anywhere and it will be wrong and unacceptable to give it that meaning which the plaintiff seeks in this suit. Just as the parties cannot contract out of the provisions of section 7(1) as far as the properties vested in the defendant are concerned, so also the plaintiff cannot 'contract into' the subsection which vested nothing in it by claiming that it vested something in it."
EXPLANATION / SCOPE
“Contracting out” means agreeing to exclude or vary a statutory provision that would otherwise apply. “Contracting in” means claiming the benefit of a provision that does not apply to the claimant. A party cannot “contract into” a statutory provision that vests nothing in them by simply asserting that it does. If the provision clearly excludes the claimant, no amount of assertion can create rights under it. The same principle that prevents parties from contracting out of mandatory provisions also prevents them from contracting into provisions that do not apply to them. Courts will reject such attempts. The plain language of the statute governs.