COVID-19: Court Dismisses Suit Seeking To Declare Lockdown Period As “Public Holiday” For The Purpose Of FHC Computation Filing Time

The Federal High Court presided over by Hon. Justice Ijeoma L. Ojukwu has dismissed a suit filed by Legal Defence & Assistant Project (LEDAP) seeking to declare as a public holiday, the period of Coronavirus pandemic lockdown, by virtue of the Executive Order issued by the President.

This suit was filed by LEDAP vide an originating summons dated 4th day of May, 2020 where it sought five declarations as follows:

1. A DECLARATION that the Executive Order made by the President of the Federal Republic of Nigeria on the 30th day of March, 2020 for the total lockdown of the Federal Capital Territory, Abuja and some other States with the effect of curtailing the spread of the COVID-19 Pandemic amounts to Public Holidays as envisaged by Section 2 (1) and 2 (3) of the Public Holidays Act (Amendment Bill 2019).

2. A DECLARATION that the time-limited for filing of court processes as prescribed by the Federal High Court (Civil Procedure) Rules, 2019 and other enactments and Directions made pursuant thereto shall be calculated to exclude the period covered by the Executive Order CAP Q2, LFN, 2004 as provided under Section 15 (4) and (5) of the Interpretation Act.

3. AN ORDER of this Honourable Court restraining the Defendant, his agents, privies and all officers working under his authority in the Federal High Court, Abuja, and other States affected by the executive lockdown from calculating the period covered by Executive Order CAP Q2 LFN, 2004 as period of default in filing any process of Court which is time-limited by the Federal High Court (Civil Procedure) Rules, 2019 and other enactments and Directions made pursuant thereto.

4. AN ORDER directing the Defendant to receive and ensure that the various Court documents that are already out of time as provided for filing by the Federal High Court (Civil Procedure) Rules, 2019 are duly accepted for filing without any recourse to the payment of any default fees for the periods covered by the Lockdown due to COVID19 Pandemic.

5. AND SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.

However, the suit was greeted by a preliminary objection filed by the defendant where it contended that the defendant sued as “THE CHIEF REGISTRAR, FEDERAL HIGH COURT, ABUJA” does not have juristic personality and urged the Court to strike out the suit.

Dismissing the preliminary objection, the Court held that:

“In my summation, it will be stretching the issue too far to hold that the addition confers a non-juristic personally to the defendant. The plaintiff argued that it is a misnomer and should not vitiate the proceedings. “

Furthermore, it was held that the addition of “Abuja” does not mean the defendant lacks juristic personality and hence, expunged same.

“I therefore hold that the defendant is juristic person and capable of being sued oe nomine as stated on the process.” The Court stated.

Meanwhile, on the strength of the originating summons, the Court stated that having regards to the practice direction issued by the Chief Judge of Federal High Court, it has taken care of the Plaintiff’s concerns.

“Bearing in mind the attendant concerns this period may create to Court users, especially in Computation of Time and penalty for filling fees, Paragraph 2, Part A of the Federal High Court of Nigeria Practice Directions 2020 for the COVID-19 PERIOD provides that;

“ ‘For the purpose of computation of time for doing any act under the Rules of this Court, the period beginning from Tuesday the 24th of March 2020, as directed by the National Judicial Council, through the Honourable the Chief Justice of Nigeria and Chairman of the National Judicial Council, by letter with Ref. No. NJC/CIR/HOC/11/631 dated 23rd day of March 2020, to the commencement of these Practice Directions, being the period of the lockdown for reasons of the COVID-19 pandemic shall be excluded.

“Provided that any act done within the said period pursuant to the Rules of Court shall remain valid’. “ The Court stated.

“This in effect has taken care of the issue or concerns of the plaintiff in regard to penalty for filing fees. The Practice Direction also stated in its preamble/objectives that the aim of the directions is to ensure effective provisions of judicial services as provided for by the Federal High Court (Civil Procedure) Rules, 2019. It is meant to compliment the Rules of this Court for effective judicial services and justice delivery and not to create a glitch.” The Court added.

Furthermore, the Court held that to grant the supplications of the Plaintiff would be capable of invalidating the administration of justice system carried out in the process of the lockdown.

“From the reliefs sought by the Plaintiff, if the entreaty of the plaintiff is granted in this regard, it will in effect nullify all that was done in the justice delivery system at the Federal High Court within the lockdown period. That is not the intendment of the Practice Direction and the Rules of this even if sought for the purposes of penalty for late filing.”

In addition, on the “public holiday” and whether the lockdown can be construed to amount to holiday, the Court refused to agree with the Plaintiff.

“In other words, only the days listed in the schedule are recognized as public holidays. The listed days do not include lockdown period unless it is specifically designated or declared so by the President. Section 2 (1) of the Act provides that the President may by public notice appoint a special day to be kept as a public holiday either throughout Nigeria or in any part thereof, and any day so appointed shall be kept as public holiday. In the instant case, the Executive Order on the lockdown did not designate or appoint the lockdown period as public holiday, therefore this court cannot usurp the executive powers of the President to make such officious appointment.” It was held.

Besides, that since the President did not specifically so declare, the Court is not imbued with the power to so do.

“It bears re-stating, contrary to the supplication and submission of the plaintiff that The Executive Order of the President on the COVID-19 Regulations did not declare the lockdown period as public holiday, in consonance with Section 2 (1) of the Public Holiday Act, which permits the President to appoint or declare any other day as public holiday. The Court cannot dress the lockdown period in that toga.”

“It also bears repeating to state that the personal concerns presented by the plaintiff in respect to computation of time and penalty for late filing are speculative and hypothetical for the reason that they do not exist.” The Court added.

Finally, the Court dismissed the suit for want of merit.

“In the final analysis and premised on the ongoing, I hold the humble but firm view that the Plaintiff has failed to establish his claims. It is for that reason that this Suit must fail. The case of the Plaintiff fails and it is accordingly dismissed.” The Court concluded.

Dr. Agada Elachi (PhD) and Stella I. Aighuette represented the Plaintiff while Adamson Adeboro and Oluwagbenga Adeosun represented the Defendant.