Court Of Law Must Not Always Base Its Decision On Public Policy By Balogun Sofiyullahi

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 time, 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 superhumans 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, Mi Lord, Per 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 Mi Lord , 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 [2008] 21 WRN 1, 13; OMOLE AND SONS LTD V. ADEYEMO
[1994] 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.”

CONCLUSION

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 !