The announcements to embark on 2020 annual Vacation by different Courts are worrisome and smack of the indifferent attitude of the judiciary towards its roles which would further be crippled should the judges embark on vacation. While some jurisdictions are still on either complete or partial lockdown, some have lifted theirs barely few weeks ago in tandem with the gradual phasing of lockdown policy of the Federal Government.
As one may argue that annual vacation is a requirement of the law, I intend to show that 2020 annual vacation is not only inexpedient, but also not unlawful should it be suspended. I shall start with Order 58 Rule 4(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017.
The Order provides that “the Court MAY proceed on an annual vacation not exceeding forty-two 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”. (Emphasis on ‘may’ is mine)
As can be seen, the word used in this provision is “may”. The discussion on the meaning to be ascribed to the word “may” whenever it is used in a law is far from being settled. However, it is generally accepted that the ordinary construction to be given to the word is that conferring discretion and not a mandate. University of Ilorin & Anor v. Oluwadare (2002) LPELR-7179 (CA), Hillary Farms Ltd & Ors v. M.V. Mahtra & Ors (2007) LPELR-1365 (SC), Ibrahim v. Nigerian Army (2017) LPELR-43212 (CA).
In some other cases, the courts have departed from the literal meaning and interpreted the word to be mandatory. CBN v. Akingbola & Anor (2013) LPELR-21475 (CA), AG Lagos State v. Keita (2016) LPELR-40163 (CA). Be that as it may, whatever interpretation a court chooses to adopt must reflect the intendment of the provision being construed as well as the need to do justice at any point in time. Nnajiofor v. FRN (2018) LPELR-43925 (CA), Willbros West Africa Inc & Ors v. Mcdonnel Contract Minning Ltd (2015) LPELR-24808 (CA).
There is nothing in Order 58(4)(2) that should warrant a departure from the literal construction of the word “May”. Neither will it occasion injustice should the discretionary meaning be stuck to. In fact, the injustice would lie in giving the word a mandatory connotation when the Order is read from the beginning.
Since the annual vacation of the National Industrial Court has been shown to be discretionary, it follows that the discretionary power must be exercised judicially and judiciously, giving consideration to all the relevant factors. Discretion, after all, does not empower a man to do what he likes because he is minded to do so. Onovo & Ors v. MBA & Ors (2014) LPELR-23035 (SC), Ibigbami & Anor v. Military Governor, Ekiti State & Ors (2003) LPELR-5619 (CA), Ero & Ors v. Ero & Ors (2018) LPELR-44154 (CA).
The fact that the Courts barely resumed from a ‘compulsory vacation’ brought upon them by the scourge of the COVID-19 Pandemic together with the need to decongest the courts are sufficient reasons to suspend this year’s annual vacation. This is if we decide to ignore the large number of lawyers who have been put out of business on account of the shutdown of courts. Sadly, they would have to wait for another two months or thereabout should the courts embark on this this year’s vacation!
Finally, the National Industrial Court Rules is just one out of the Rules of the various Courts that provided for annual vacation of judges. The language of the Rules of other Courts may vary from the use of ‘may’ to ‘shall’ or any other words which would further the arguments on the right interpretation to be adopted- whether discretionary or mandatory. It is submitted that however strict the language of any provision on this matter may be, the amendment of that provision would be as easy as its coming into force. The High Court Rules are products of the different Heads of Courts. If there be any need for amendment or further directive, it will not be difficult. In all, the need to enhance justice delivery must be of paramount consideration. It is for this reason that I hold that the annual vacation for this year should be cancelled.