The consideration of what public policy demands in a particular situation is not something simplistic. The reason being that, what might be viewed as public policy to a section of the public, may be the opposite to another section of the same public.
Before then, what does “public policy” mean ? Many a times, a legal term is not subject to an exact definitive precision as in mathematical equation. Therefore, most legal definitions are based on individual perceptions.
However, public policy is used in varying situation & context. But in this write-up, it is used in the context in which it is popularly employed as meaning “public good” and “public opinion” or “public perception”. Having these cardinal words at the back of our mind, then, should a Court decision be always based on them ?
While I admit that every member in the society has an innate subjective (biased) value judgement in his/her mind about a particular matter, usually when it comes to issues of public importance. Therefore, since the Judges that make up our Courts down to the apex are not super humans but a product of the same society, it is to restate the obvious to assert that these Judges necessarily have their individual (subjective) perception about live issues coming before them.
In order to reevaluate my firm conviction, Oguntade JSC (as he then was) lend credence to my words in what I considered to be one of the most beautiful dissenting Judgements in the Supreme Court of Nigeria, in the celebrated case of INAKOJU V. ADELEKE(2007)All FWLR (PT.353)111 where His Lordship said:
“In our private lives we read newspapers and watch the television. We hear gossips from friends and relations. We form opinions as to our decisions and reactions based on these things. But a Judge is in a different class. He cannot in his adjudication rely on what he had seen or heard outside the courtroom. The opinions of his near relations do not matter. He is confined only to the facts in the file before him. The judgement or decision he may make in his private life is often not the same as he does in court. ….”
His Lordship continued:
“A Court in the process of deciding a case must be guided only by the evidence given before it in court. It must not convey the impression that its judgement is being directed by a desire to heed private or public sentiment.”
Therefore, even if a Judge expresses his personal opinions on a live issue in controversy, maybe to his families or kinsmen, it should not be surprising if he takes a contrary position or course in his Judgement in Court. This is premised on the settled principle that a Judge is not like a Knight Errant in Don Quixote that is expected to go on a voyage of discovery outside what the parties have placed before him.
Also, public policy may usually be sentimental, subjective or a brazen attempt to avoid clear laid down laws, rules and procedures because of public interest. Put in other words, it may be an attempt to sway the Court to give decisions based on other considerations which tend to evade the application of the written law. However, I should not be misconstrued that public policy cannot be the basis of a Court’s decision where circumstances permit but that, it cannot be a yardstick always.
Their Lordships of the Supreme Court through Hon. Justice Kayode Eso JSC (of blessed memory) had the course to pronounce on this point, when a Counsel invited the Court to base its decision on “Public Policy”. Therefore, because of the significance of His Lordship’s words, permit me to take the liberty of quoting it in extenso.
In the case of SONNAR LTD. v. NORDWIND (1987) NWLR (Pt. 66)520 2 (1987) All N.L.R 548 (1987) LPELR-SC.38/1986, His Lordship remarked:
“With respect, attractive and tempting as the submission in regard to public policy is, it is dangerous for a court to base its decision mainly on public policy, which indeed would be another means of avoiding the rules, law and procedure which govern a matter. Public policy is usually equated with public good. To ask a Court to decide only as a result of public policy or public good, goes beyond the measure of liberalism in the application of the law or even viewing a matter from the socio-economic context of law. Who is to determine what constitutes public policy? To rely on public policy or public good simpliciter, is to give room to uncertainty in the law. It is a way “to beg the question”. While it is for the law to find some point of reference, which is more universal than its internal question, one would still ask the question which Lord Radcliffe once asked in a paper titled, “The Lawyer and His Times” and the question is”Can an enlightened conception of public policy provide what we want, a scale of measurement?” He answered the question and he said”We cannot run the risk of finding the archetypal image of the judge confused in men’s minds with the very different image of the legislator.”
His Lordship continued:
“For while a judge is expected to remain objective, impartial, experienced and full of erudition, these attributes cannot be found in one who seeks total sanctuary for his decision, in public policy.”
Finally, His Lordship clarified the point in the following words:
“I am not saying that the question of public policy should be wholly excluded. No it should not. For even then, it is against public policy to produce uncertainty in the law: What I am saying is that public policy is not to be relied upon wholly to fathom a decision. Surely, public policy is an unruly horse and judges are not such masters of equestrial ability to take on such experience for, as was said in Um Poh Chao v. Camden and others (1979) 2 All E.R. 910 at 914. ‘The judge, however wise, creative, and imaginative he may be, is cabin’d, cribb’d, confin’d, bound in, not as Macbeth, to his ‘saucy doubts and fears’ but by evidence and arguments of the litigants”
It is my honest view, that it is not in the interest of the Nation and certainty in the applicability of our Laws for a Court to always ground its decision based on the sentimental appeal of a section of the public, whether known or unknown. Permit me (again) to employ the words of Per Oguntade JSC in the famous case of INAKOJU V. ADELEKE(2007)All FWLR (PT.353)11 had this to say:
“A Court in the process of deciding a case must be guided only by the evidence given before it in court. It must not convey the impression that its judgement is being directed by a desire to heed private or public sentiment. … It is in my view the most unrewarding assignment a Judge could undertake if it tried to give judgement as would please a section of the public. It is like a house built on sand which soon disappears with the approach of the rain. It is argued that even if a judgement is wrong, it is acceptable for as long as it is to public good. That clearly is a fallacy. Public good lies in giving a judgement in accordance with the Constitution of Nigeria and other relevant laws. Public good is an ever-changing phenomenon…Judgements which are of public good are those based on the Constitution and laws of Nigeria. Not those based on opinions which are constantly changing.”
It is my modest view that the opinion of His Lordship cannot be faulted. Substantial amount of members of society do not know that sentiment, emotions or pity do not have a place in judicial deliberation. See GLOBAL WEST VESSEL SPECIALIST (NIG) LTD v. NIGERIA NLG LTD & ANOR(2017) LPELR-41987(SC); SULEIMAN v C. O. P. PLATEAU STATE  21 WRN 1, 13; OMOLE AND SONS LTD V. ADEYEMO  4 NWLR (PT. 336) 48 & ADEOLA v. STATE (2017) LPELR-42327(CA).
Where a Judge always desires that his decision be appealing to the public, then, such a Judge may create uncertainty in the legal system.
The English Court in the case of PARSONS V. B.N.M. LABORATORIES LTD (1964) 1 Q.B. 95, 102 held that:
“It is better that the law should be clear than that it should be clever.”
In addition, the House of Lords in the case of EGERTON v. BROWNLOW, H.L. Cas. 1, 123, 10 Eng. Rep. 359 (1853) held:
It is the province of the statesman and not of the lawyer to discuss and of the Legislature to determine, what is best for the public good, and to provide for it by proper enactments. It is the province of the judge to expound the law, to declare public policy as he finds it in the written and unwritten law. Public policy is a proper ground for a decision only in the sense of the the policy of the law, not in the sense of mere judicial notions as to what is best for the public good.”
It is very wrong and sardonic when attacks are targeted at the personality of (some) upright Judges because they give decisions contrary to the expectation of the masses in a given circumstance. This may largely be attributable to the faults of no other person, but that of the Counsel or litigants themselves who did not do their homework properly. Meanwhile, the public tend to forget that a Judge is not like a roadside mechanic that is meant to repair the cases of the parties in order to sooth their expectations.
Sadly, by their very nature, Judges are not meant to rise to the occasion of defending their decisions because of what the profession commands. Meanwhile, the Nigerian Bar Association (NBA) that should speak on their behalf are not helping matters. That is the odyssey of an upright Judex !
About the author
BALOGUN SOFIYULLAHI is a student of Faculty of law,ABU, Zaria.
For knowledge and Justice