Daily Law Tips (Tip 576) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
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CAN A STATE GOVERNOR LEGALLY DECLARE PUBLIC HOLIDAYS IN HIS STATE?
Public holiday in Nigeria, is an issue in the exclusive legislative list, so state legislatures cannot make laws on public holidays. It is only the federal legislature (National Assembly) that can make laws on public holidays in Nigeria or in any state or part in Nigeria.
First of all, what is holiday? “In the case of KAIGAMA v. NEC (1993) 3 NWLR (Pt.284) 681 and many others, “holiday” is defined as a ‘day which is a Sunday or a public holiday'” Section 1 of the Public Holidays Act Cap P.40, Laws of the Federation of Nigeria, recognizes only the days listed in the schedule to the Act as ”Public Holidays’.” Per, GALADIMA, J.S.C (P. 41, paras. A-B). Quote from the Supreme Court’s judgment in the case ONYEKWULUJE & ANOR v. BENUE STATE GOVT & ORS (2015) LPELR-24780(SC).
Generally, matters in the exclusive legislative list of the constitution of Nigeria, are federal matters. As such, they are above the powers of any state government in Nigeria. The Public Holidays Act 1979, is a federal legislation that provides for all public holidays in Nigeria and in any part of Nigeria. The said legislation empowers the President of Nigeria to declare any special day as a public holiday across Nigeria or in any part of Nigeria. However, the same legislation also empowers a state Governor to declare any special day as a public holiday in his state or any part of his state, but ‘subject to’ the powers of the President to do so. Hence, a Governor can exercise his powers to declare public holidays in his state so far as it does not conflict with that of the President of Nigeria. Any state law on public holidays (whether for founders’ day or state creation day) is illegal, unconstitutional and contrary to the constitution of Nigeria and consequently nullified.
Going by the provisions of the Public Holidays Act, although public holiday is a federal matter within the exclusive powers of the National Assembly, a Governor is allowed to also declare public holidays for his state. Note that this does not empower any state House of Assembly to make laws on public holidays. So, while public holiday is a federal government matter and power that a state Governor can legally exercise, state legislatures are not legally allowed to exercise such powers.
My authorities, are:
1. Sections 1 and 4 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Item 51, Part 1, Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999.
3. Sections 1, 2, 3 and 7 of the Public Act, 1979.
4. The Supreme Court’s judgment (on the meaning of ‘holiday’) in the case of ONYEKWULUJE & ANOR v. BENUE STATE GOVT & ORS (2015) LPELR-24780(SC)
5. The Supreme Court’s judgment (on meaning of ‘subject to’) in the case of BALONWU & ORS v. GOV OF ANAMBRA STATE & ORS (2009) LPELR-729(SC)
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