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Under The New Dispensation: On man’s injustice to man

• Address delivered on Sunday, 27 January, 1980, at the luncheon arranged by the Tribune Group to mark the Silver Anniversary of the introduction of Free Universal Primary Education in the former Western Region of Nigeria. 

 

THE first is whether the Controller of Customs in Ceylon had reasonable grounds for cancelling Nakkuda Ali’s textile licence. Regulation 62 of Ceylon’s Defence (Control of Textile) Regulations. 1945, empowers the Controller to cancel a textile licence if he has reasonable grounds to believe that “any dealer is unfit to be allowed to continue as a dealer.” The second point is whether an action for certiorari is appropriate to this case.

On the first issue the Judicial Committee declared inter alia as follows:

it would be impossible to consider the significance of such words as where the controller has reasonable grounds to believe … without taking account of the decision of the House of Lords in Liversidge v. Sir John Anderson … It did directly involve a question as to the meaning of the words if the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations … And the decision of the majority of the House did lay down that those words in that context meant no more than that the Secretary of State had honestly to suppose that he had reasonable cause to believe the required thing … But the elaborate consideration which the majority of the House gave to the context and circumstances before adopting that construction itself shows that there is no general principle that such words are to be so understood and the dissenting speech of Lord Atkin at least serves as a reminder of the many occasions when they have been treated as meaning “if there is in fact reasonable cause for AB. to so believe.”

.. .Their Lordships therefore treat the words in reg. 62 … as imposing a condition that there must in fact exist such reasonable grounds, known to the Controller, before he can validly exercise the power of cancellation.

On the second issue, the Judicial Committee declared that “Their Lordships have come to the conclusion that certiorari does not lie in this case.”

At no stage in this case was the issue of public policy or public interest raised.

The fourth and last case is that of Enderby Town Football Club Ltd. v. Football Association Ltd. Two issues were vigorously canvassed and decided in this case:

  1. Whether the F.A rule 38 (b) precluding legal representation at the hearing of an appeal before the F.A was invalid as contrary to natural justice; and
  2. Whether the FA. rule 40 (b) purporting to prevent legal proceedings without the consent of their council is contrary to public policy and invalid.

The answer to each of the above questions is in the affirmative. In his reference to the Enderby Case, Chief Graham-Douglas states as follows: “His (Lord Denning’s) observation in Enderby etc. Football Association is another restatement of the social engineering function of law which may yet envoke controversy.”

He then proceeds to quote Lord Denning completely out of context as follows:

I know that over 300 years ago Hobart, C. J. said the “Public policy is an unruly horse.” It has often been repeated since. So unruly is the horse, it is said (per Burrough, J. in … ) that no judge should ever try to mount it lest it run away with him. I disagree. With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles. It can leap fences put up by fictions and come down on the side of justice…”

I say “out of context,” because before making the quoted observation, Lord Denning makes reference to instances where public policy has been and can be invoked in adjudicating on certain kinds of dispute before the court. Says he:

The long and short of it is that if the court sees that a domestic tribunal is proposing to proceed in a manner contrary to natural justice it can intervene to stop it. The court is not bound to wait until it ‘has happened. A preliminary point arises here: Has the court any power to go behind the wording of the rule and consider its validity?. The rules of a body like this are often said to be a contract. So they are in legaltheory … (But) they are subject to the control of the courts. If they are in unreasonable restraint of trade they are invalid. If they seek to oust the jurisdiction of the court, they are invalid. If they unreasonably shut out a man from his right to work, they are invalid. If they lay down a procedure which is contrary to the principles of natural justice, they are invalid. All these are cases where the judges have decided. avowedly or not, according to what is best for the public good.

This is what Lord Denning says before making the remarks which Chief Graham-Douglas chose,to quote. Although Hobart. c.r. 300 years ago, described public policy as an unruly horse and this was re-echoed by Burrough, J. 156 years ago, yet Lord Denning has denominated a long line of precedents since 1856 right up to the present day which identify the ingredients of public good or public policy which a judge in the saddle must look for in order to make the unruly horse jump over obstacles, leap up fences put up by fictions and come down on the side of justice.

But the ingredients indicated by Lord Denning bear not the slightest resemblance to those odious ones set out by Chief Graham-Douglas. The acid test of what is contrary to public policy or public interest is well known to lawyers. Any act that is contra bonos mores is contrary to public policy or public interest.

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