1. Introduction

Owing to the prolonged lockdown that was occasioned as a result of the Coronavirus pandemic ravaging the globe, this necessitated the closure of all Courts for a while and therefore, the administration of justice was grounded save for urgent cases that fall within the stipulated categories. Besides, Judges were apparently on break as a result of the pandemic for a while. Meanwhile, the Rules of the various Courts still provide for an annual vacation which is a customary practice for the Judges.

However, Hon. Justice Aminu Sabo Ringim, the Jigawa State Chief Judge canceled the vacation scheduled for July 12 to September 11 while  Ogun State Chief Judge, Hon. Justice M.A Dipeolu equally did the same. This, to us, is apparently not unconnected to the break the Court had already witnessed as a result of the pandemic.

Conversely, Federal High Court is to proceed on its annual vacation on 27th day of July, 2020 , Oyo State to commence hers by 25th day of July, 2020, FCT High Court on 20th day of July, 2020 and National Industrial Court to begin come 27th day of July, 2020.

In this light, we seek to review the power of Chief Judges to declare or cancel annual vacation as done in the two States.

  1. 2. Provisions Relating to Annual Vacation

Firstly, let it be noted that the power of the Heads of Court to make Rules is derived from the 1999 Constitution. Sections 236,  248, 254, 259, 264, 269, 274, 279 thereof, amongst others.

For ease of reference, Section 274 provides for High Court as follows:

Subject to the provisions of any law made by the House of Assembly of a State, the Chief Judge of a State may make rules for regulating the practice and procedure of the High Court of the State.

By these provisions of the Constitution, it therefore means that Rules can be made to regulate the practice and procedures of the Courts. Meanwhile, having made the various High Court Rules, there exists  provisions  for annual vacation. To mention but a few:

  • Order 46 Rule 4 & 5 of Federal High Court Civil Procedure Rules, 2019
  • Order 45 Rule 4 & 5 of Bayelsa State High Court (Civil Procedure) Rules (2010)
  • Order 57 Rule 4 & 5 of Benue State High Court (Civil Procedure) Rules (2007)
  • Order 45 Rule 4 & 5 of Borno State High Court (Civil Procedure) Rules (2012)
  • Order 3 Rule 4 & 5 of Cross River State High Court (Civil Procedure) Rules (2008)
  • Order 45 Rule 4 & 5 of Ekiti State High Court (Civil Procedure) Rules (2011)
  • Order 45 Rule 4 & 5 of Enugu State High Court Rules (2006)
  • Order 49 Rule 4 & 5 of High Court Of Lagos State Civil Procedure Rules, 2019
  • Order 52 Rule 4 & 5 of High Court Of The Federal Capital Territory, Abuja (Civil Procedure) Rules (2018)
  • Order 42 Rule 4 (iv) of Kaduna Sstate High Court Civil Procedure Rules, 2007

However, one common thing in the various Rules as regards vacation is that it admits of a discretionary power of the Chief Judge to so declare. For example, Order 42 Rule 4(iv) of Kaduna Rules provide:

  1. Subject to the directions of the Chief Judge, sittings of the High Court for the despatch of civil matters shall be held on every week day except:

(iv) during an annual  vacation of the Court to commence on such date in August and of such duration, not exceeding six weeks, as the Chief Judge may appoint .

Order 58 Rule 4(2) of National Industrial Court Rules, 2017 provides:

(2) The Court may proceed on an annual vacation not exceeding forty two (42) working days commencing on a date in July and ending on a date in September as may be contained in a Practice Direction to be issued by the President of the Court.

Order 45 Rule 4(b) of Jigawa State High Court Civil Procedure Rules, 2008 provides:

  1. Subject to the directions of the Chief Judge, sittings of the High Court for the despatch of civil matters shall be held on every week day except:

(b)during the long i.e the period beginning middle of July and ending on a date not more than six weeks later as the Chief Judge may by notification in the Gazette appoint .

The Law is rock solid that statutes are to be construed in their literal and ordinary meaning.  EGBE vs. ALHAJI (1989) 1 NWLR (PT. 128) 546 AT 584 ,the Supreme Court through Per NNAMANI, JSC held:

It does appeal to me that the words used in this legislation are  plain and ought to be given their ordinary meaning. It is indeed the first rule of interpretation of statues that statutes are to be construed in their ordinary and natural meaning of the words.

Also,  in the case of LAMIDO V FRN unreported Appeal No. CA/K/436/C/2013 ,per Abiru, JCA that:

“It is a fundamental rule of interpretation of statute that words  used in a statute are not put there for fun; they are for a purpose…could not have been by mistake or by oversight. It was intended to have a meaning and effect.”

See also BRILA ENERGY LTD v.FRN (2018)LPELR-43926(CA)

It is our view that the power to either declare or cancel the annual vacation of Judges is at the preserve of an exercise of discretion of the Heads of Court  by the lieteral meaning of the above Rules, most particularly with the use of “MAY”. In the case of  THE OWNERS OF THE M. V.LUPEX V. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD.(2003) LPELR-3195(SC), the Supreme Court stated that:

“An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law.” Per Mohammed, J .S.C

Besides, we submit that the Law is equally beyond conjecture that when the word “may” is adopted and when painstaking regards is had to the circumstances of the enactment, it is generally construed in a directory or permissive sense. In the case of Rimi v. INEC & ANOR(2004) LPELR-7402(CA), the Court held:

“The word “may”, when used in a statute poses some difficulty in interpretation. Authorities are not unanimous on any particular interpretation of the word. It may imply that it is only directory or permissive or can be imperative as the case may be, depending on the context within which it has been used. 

See also Mokelu v. Federal Commissioner for Works and Housing(1976) LPELR-1904(SC).

Finally, it is our respectful view that Chief Judges possess the power to cancel annual vacation in their discretionary power as prescribed by the Rules. Hence, although it is within the powers of the Chief Judge to declare the Court’s annual vacation notwithstanding the technical break the pandemic earlier foisted on them and also, the Chief Judges who had canceled their annual vacations for one reason or the other, laudable as it appears, is properly valid in Law.

TheNigerialawyer Editorial 

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