• 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.
ACCORDINGLY, Cheshire, Fifoot and Furmston set out in their Law of Contract six heads of contracts which are illegal and contrary to public policy, and three heads which are contrary to public policy and void. The first six are:
- A contract to commit a crime, a tort or a fraud on a third party.
- A contract that is sexually immoral.
- A contract to the prejudice of the public safety.
- A contract prejudicial to the administration of justice.
- A .contract that tends to corruption in public life.
- A contract to defraud the revenue.
The other three are:
- A contract to oust the jurisdiction of the courts.
- A contract that tends to prejudice the status of marriage.
- A contract in restraint of trade.
Finally on this topic, Lord Jowitt, in his authoritative Dictionary of English Law, has defined public policy as:
The principles under which freedom of contract or private dealings is restricted by law for the good of the community.
It is crystal clear from the foregoing that while public policy or public interest is an important factor in judicial decisions, the public policy or public interest must be such as will positively conduce to, and be in keeping with, public good, public morality, and natural justice. The brigandage, deprivation of right, perversion of justice, and the criminal breach of public trust and morality committed by one last Military Regime cannot, except by a stretch of wild and insane imagination, be regarded as being in keeping with public policy or public interest as defined by the leading authorities on the subject.
In regard to the second proposition, we are grateful to Chief Graham-Douglas, who knew a good deal of what went on behind the scenes at the time, for informing us that so-called public interest factors – the booming of guns with their awful majesty, the complete handing-over of power to Alhaji Shagari between the hearing and the dismissal of Awolowo’s appeal etc. – as detailed by him were present to the minds of the Majority judges of the Supreme Court in making their decision on the Awolowo appeal.
According to Chief Graham-Douglas, it had been ordained by the Military by means of diverse overt acts, that in the “public interest” the Awolowo petition and appeal, whatever the merits on grounds of law, justice, public good or public policy or public interest, should be dismissed. And lithe obiter dictum of the majority judgment,” referred to by Chief Graham-Douglas, confirms a state of concensus ad idem between the majority of the Supreme Court Judges and the Military.
It would appear, therefore, that, in spite of Chief Graham-Douglas’ rhetoric denial, the Supreme Court in its majority judgment, was influenced by the perverted will of the Military. But the majority judges preferred a less noxious peg to hang their verdict on. I say less noxious because, while fractionisation of a legal entity, and the declaration that election to the office of President was conducted substantially in accordance with the Electoral Decree when what was in issue was not the conduct of but the return at the election, would offend against law and commonsense, they would not carry the same immoral import and stigma as Chief Graham-Douglas’ unethical and iniquitous denotations of public good, public policy and public interest would.
Before leaving Chief Graham-Douglas alone, for the time being, I must confess that my first reaction, on reading his Paper under treatment, was to ignore him. But he writes in such fascinating style, and with such pretentious scholarship and erudition that his pernicious and untenable propositions might be taken by the unwary as correct legal principles. For instance, apart from presenting to us, in a breathtaking literary sweep, the villainy and the calculated and unabashed breach of trust of an arbitrary and senseless ruler as constituting public policy or public good or public interest, Chief Graham-Douglas has dared to question the need for any judicial philosophy…”
The legal doctrines advocated by Chief Graham Douglas are not only inimical to jurisprudence but also subversive of judicial process and public good. The supreme tragedy of Chief Graham-Douglas’ campaign as we have seen, is that some judges of our Supreme Court are already adherents of these obnoxious doctrines.
Which brings me to Mr. Justice Fatayi-Williams. I do strongly and seriously urge that he should relinquish the Bench now. His continuance on the bench can only be a severe draw-back on the effectiveness of the Supreme Court as the apex of the country’s most revered organ of Government – the Judiciary. I have some powerful reasons for this call.
We may not all be politicians in the strict sense of being partisan card-bearing politicians. But we all have political sympathies and leanings – that is, all of us without exception. So, it is granted that a judge is entitled to his political sympathy or leaning. What a judge is not entitled to is to allow his political sympathy to so colour his judicial attitude as to make people suspect him as a partisan politician. Furthermore, he must not accept elevation or preferment in circumstances which make it appear that his elevation or preferment is made for partisan ends. Above all, he must never let it be known, unless he is Lord Chancellor of Britain, for which specific political party he has sympathy or leaning. The moment his party sympathy or leaning is publicly known he is due to go.
In the case of Justice Fatayi- Williams, it is now publicly known that, when he was Judge in the old Western Region, he had strong sympathy for the NNDP. Indeed his action on the Bench was the immediate cause of the wide-spread violence in most parts of that Region in 1965.
To be continued