Address delivered on Sunday, 27 January, 1980 at the luncheon arranged by the Tribune Croup to mark the Silver Anniversary of the introduction of Free Universal Primary Education in the former Western Region of Nigeria.
HE then proceeds to his climax and says:
Without attempting to reconcile two apparently parallel positions one may only safely say that there may well be constitutional situations warranting strict complete and unfettered legalism but there may well be other situations in which the overt injection of meta-legal considerations such as public interest into the judicial process may at least be excusable. And here referring once again to Awolowo v. Shagari such was the intense public interest generated by the case and such was the extent on the judgment of the Supreme court that not many Nigerians would have castigated the court for manifestly taking into consideration and predicating its. decision inter alia on the repercussions of the decision and the manner in which it would either assuage or frustrate the public interest. Many would indeed have openly extolled the wisdom and courage of the court for such forthright rejection of absolute and unbridled legalism.
Tafawa Balewa Square like most parts of the metropolis of Lagos, was bedecked with flags and buntings and other decorations; and while the appeal was being argued before the Supreme court military practice guns booming from the square by which stood the court filled the courtroom with their awful majesty as they heralded the pomp and pageantry of the great day ahead. And more than that the Heads of State of the entire world wi thou t an excep tion had sen t messages of congratulations and offers of operation to the President-elect; from the Yoruba “Western States” as from other parts of the Federation, Obas and national rulers were either coming to Lagos to pay their respects to the President-elect or sending him messages of goodwill; the “market-women” of Lagos, a powerful Yoruba political force, had paid their homage and pledged their loyalty to the in-coming President; and so on.
And what was still more, a few days before the judgment of the Supreme Court the out-going Head of State, General Obasanjo, had completed his handing over of the reins of government to Alhaji Shagari.
In these circumstances if the judgment had gone against the respondents there would be fresh elections (not necessarily before the Electoral College) and there would be no return to civilian rule on October 1; and the return to civilian rule could in the end be elusive. Against this background if the judgment of the Supreme Court had been other than it turned out to be, this would not have been just an occasion of purposeless crass legalism but an abdication of one of the cardinal purposes of the judicial function, namely, not just the resolution of disputes between State and citizen or citizen and citizen but responsibility for the sustenance of social solidarity and guardianship of the public interest. Fortunately for the nation as a whole, a few malcontents apart, the majority Bench’s conception and application of the relevant principles of law consis.ted with a discharge of the responsibility for protecting the public interest. In-deed, the Supreme Court was on trial at the bar of Nigerian public opinion – it acquitted itself!
Significantly, the obiter dictum of the majority (the court’s) judgment was alive to these public interest realities although having dismissed the appeal on the main ground, namely the literal interpretation of two-thirds of nineteen States as twelve and two-thirds States, it does not appear to have been influenced by these matters.
In his Paper, Chief Graham-Douglas seeks to establish two main propositions, namely:
- that public policy and public interest are potent (that is very strong) factors in judicial decision-making; and
- that, in the Awolowo case, these factors were present to the minds of the majority judges of the Supreme Court, and were considered by them, although, as it turned out, the dismissal of Awolowo’s appeal was base? on another ground.
In regard to the first proposition, Chief Graham-Douglas is careful not to give us a definition or description of public policy and public interest. Instead, towards the close of his Paper, he elaborates what he considers to be public interest and public policy in the Awolowo case.
These are denominated by him as (1) intense public interest generated by the case; (2) messages by the Heads of State of the whole world without exception congratulating Alhaji Shagari and offering him cooperation; (3) personal homage or messages of goodwill to Alhaji Shagari from Obas of “Yoruba Western States” in particular, and natural rulers from other parts of the federation; (4) homage and pledge of loyalty to Alhaji Shagari by “market-women” of Lagos which is a powerful Yo rub a political force; (5) display of flags and buntings to celebrate the installation of the new President; (6) the booming of guns in front of the court and the resultant filling of the courtroom with their awful majesty while Awolowo’s appeal was being argued; and (7) complete transfer of the reins of government to Alhaji Shagari by General Obasanjo a few days before the judgment of the Supreme Court in Awolowo’s appeal.
To be continued