IN THE SUPREME COURT OF NIGERIA

On Friday, the 20th day of October 1978

SC. 268/1976

Between

OBOREUBORIITAYE & 7 ORS ...................................... APPELLANTS

And

CHIEF OKUOWEEKAIDERE & 4 ORS ............................... RESPONDENTS

The concluding part of the plaintiffs (herein respondents) case was heard on the 15th day of August, 1975, a date which fell within the period 31st July to 30th August, 1975 constituted and declared by the Chief Justice under Order 25 Rule 5 High Court Rules, as Annual Vacation. Before this hearing counsel for appellants due to ill-health applied in writing for an adjournment till after the annual vacation. The application was refused by the trial Judge who then heard the concluding part of the respondents case and after the appellants objection to stating their defence without their counsel, closed the defence and proceeded to write and deliver the judgment in favour of the respondents.

It is against this judgment that the appellants have appealed to the Supreme Court.

HELD

(1)     It is the law that the High Court will not normally sit or open during vacation to hear or continue the hearing of cases. While the annual court vacation cannot be described as public holiday, its legal effect on court proceedings is similar.

(2)     The effect of Order 25 Rule 5 and the notification, Midwestern Notice 131 of March, 1975 was to deprive the trial Judge of the authority to sit and decide the matter now on appeal before us during the period of vacation in the absence of any leave granted pursuant to an application made by both parties to him for leave to continue the hearing or trial during the period. As there was no such application, the proceedings, that is, hearing the judgment delivered on the 25th of August, 1975 is a nullity.

(3)     The provision of section 33 of the High Court Law 1964 recognises that during vacation the court is not open for the hearing of general legal business pending therein.

(4)     Section 32 (2) of the High Court Law makes the jurisdiction to sit for the trial of cases (criminal and Civil) subject to the direction that may be given by the Chief Justice. By the ordering of the vacation and notification the Chief Justice has directed suspension of sitting except for the purpose and in the manner described in the Notice. The trial Judge should not have sat during vacation to hear this matter without first seeing that the conditions precedent set out in the Rules have been complied with.

Appeal allowed.

A.O. Akpedeye for the appellants.

T.J.O. Okpoko for the respondents.

Cases referred to:

Julius Oyayemi Ososami V.C.O.P. (1952/1955) 14 W.A.C.A. 24.

Statutes referred to:

High Court (Civil Procedure) Rules 1958.

High Court Law 1964.

Obaseki, J.S.C.-This appeal is against the judgment of Ekerruche J. delivered on the 15th day of August, 1975 in suit No. W/38/74 at the High Court Warri in the Warri Judicial Division of the High Court of Justice of Midwestern now Bendel State of Nigeria.

The appellants were defendants to a claim filed by the respondents as plaintiffs in the High Court, Warri for (in the terms endorsed on the writ).

"1.     As against all the defendants jointly and severally a declaration that an unauthorised Deed of Lease dated the 23rd day of March, 1973 and registered as instrument No. 39 at page 139 in Volume 143 of the Lands Registry in the office at Benin City made between the 1st to the 6th defendants of the one part, and the 7th and 8th defendants of the other part, which said Deed of Lease was made without the knowledge consent or authority of the 1st plaintiff (the head of Osemorhor family) and the other principle members of the plaintiffs family, is void ab initio and of no legal effect in accordance with the Uvwie/Urhobo customary law.

2.      As against the 2nd and 8th defendants only, an order of permanent injunction restraining them, their servants, agents and/or privies from entering the land described in the said Deed of Lease referred to in Relief (1) above or in any way dealing with or interfering with the same land.

3.      As against the 7th and 8th defendants jointly and severally the sum of N4,000.00 as damages for trespass committed by them upon the said land."

Pleading were ordered and duly delivered and at the close of pleadings, the matter was set down for hearing before Ekeruche J. on the 21st day of October, 1974. It was not heard on that day but a new date the 3rd day of March, 1975 was fixed by the learned trial Judge and the case was adjourned accordingly to that date. On the 3rd day of March, 1975, when the case came for hearing although some of the parties were present, no hearing took place and the learned trial Judge again adjourned the matter to a new date the 14th day of March, 1975 for hearing. On the 14th day of March, 1975, the parties appeared and hearing commenced. The plaintiffs case opened with the evidence of the 1st plaintiff. He had not concluded his testimony in chief before the end of the day and the court had to adjourn further hearing to the 27th day of March, 1975. There was no sitting of the court on 27th day of March, 1975. However, the case came up for hearing again on the 4th day of April, 1975 when the 1st plaintiff concluded his testimony (both in chief and in cross examination). Further hearing was then fixed for April 24 and 25th, 1975 and the case was accordingly adjourned.

No evidence was taken on the 24th or 25th of April, 1975. There is no evidence on record of the appearance of parties or their counsel. The case was however adjourned by the learned trial Judge for further hearing on May 13, May 14 and May 15, 1975. Again, there was no hearing on May 13, 14 or 15. There is no evidence on record of any appearance of the parties or their counsel on May 13 when the learned trial Judge adjourned the matter to June 19, 1975 for further hearing on June 19 and June 20. On June 19, 1975 the court did not sit. However, the court sat on June 20, 1975 and evidence of plaintiffs' 1st witness, Julius Eyituoyo Odiete was taken. At the conclusion of his testimony the case was adjourned and further hearing was fixed for June 26 and 27, 1975.

On June 26, 1975 the 2nd plaintiff, the 4th plaintiff, and plaintiffs' witness No.2 Umunkande testified.

At the conclusion of the testimony of Umunkande (p1/w.2), the court adjourned the case to July 4, 1975 for further hearing. No evidence was taken on July 4, 1975 before the learned trial Judge adjourned the matter at the instance of the defendants to the 29th day of July, 1975 for further hearing on July 29 and July 30, 1975.

On July 29, 1975 there was no evidence taken because Chief Unumhoro, counsel for the plaintiffs/respondents asked for adjournment on the ground of illness of his witness the 3rd plaintiff who was to testify. He also informed the court that:

"there was a move to settle the case and that the settlement was at an advanced stage."

The learned trial Judge thereupon without objection from counsel for the defence who was present adjourned the matter to July 30, 1975 for further hearing.

The court sat on July 30th, 1975 but took no evidence. Instead, in the presence of both counsel and the parties (with the exception of 5th plaintiff and 6th defendant) the learned trial Judge adjourned the matter to August 7, 1975 "with a view to settlement."

On the 7th day of August, 1975, the court sat. The plaintiffs and their counsel were present but the defendant's counsel together with the 2nd, 4th, 5th, 7th and 8th defendants were absent. The other defendants were present. Chief Unurhoro, counsel for the plaintiffs, then announced to the court that "no settlement has been reached." Therefore, the learned trial Judge ordered hearing to continue and adjourned the case to August 12, 1975 "for hearing from day to day until hearing is completed."

The court did not sit on the 12th day of August, 1975. The case was placed on the cause list for the 14th day of August, 1975. Again the court did not sit on August 14, 1975 but early on that day Mr A.O. Akpedeye addressed and caused to be delivered a letter to the Senior Register of the High court imploring the Senior Registrar to bring to the notice of the learned trial Judge the contents of the said letter which in essence was an application for adjournment to a suitable date in September, 1975 after the court annual vacation, on the ground that he was indisposed suffering from malaria fever and has been advised by his doctor to rest for 14 days.

The contents of this letter were brought to the attention of the learned trial Judge and on the 15th day of August, 1975 the court sat, considered and refused the application and instructed the Senior Registrar to communicate his refusal to him. This, the Senior registrar did. The plaintiffs and their counsel were present in court. The 1st to 5th defendants were also present in court but the 6th, 7th and 8th defendants together with defendants' counsel were absent. The court heard and took the evidence of the 5th plaintiff and the 3rd plaintiff. They testified in chief and each of the 5 defendants present on being asked to crotch the witnesses, stated that he had nothing to ask as his lawyer was absent.

Counsel for the plaintiff then closed the case for the plaintiff. The Court thereafter called the defendants for their defence.

On being asked for their defence, the 1st, 2nd, 3rd, 4th and 5th defendants stated that they could not offer any defence without their counsel.

The learned trial Judge thereupon closed the case for the defendants and proceeded to write and deliver his judgment in favour of the plaintiffs. He declared the Deed of Lease void ab inito, granted the injunction against the 2nd and 8th defendants and awarded N1,000.00 damages against the 2nd and 8th defendants together with N750.00 costs.

The defendants, being aggrieved, have now appealed to this Court to set aside the judgment and order a new trial and the grounds of appeal filed read:

"1.     The judgment is against the weight of evidence.

2.      That the learned trial Judge has no jurisdiction to proceed with the case to judgment without the consent of the defendants/appellants and indeed against their consent and that of their counsel having regard to order 25 of the High Court (Civil Procedure) Rules.

3.      The learned trial Judge erred in law in failing to give the defendants/appellants a fair hearing.

Particulars

Having refused to grant the application of counsel for the defendants/appellants asking for adjournment, the learned trial Judge proceeded immediately thereafter with the case to conclusion without giving the defendants/appellants the opportunity of briefing another counsel to present their case and thereby denied them the opportunity of stating their case."

Before us the only ground fully argued was ground 2 above and indeed the success of that ground will dispose of the other two grounds i.e. ground 1 which was wisely, in our opinion, abandoned and ground 3 which, although argued, was later abandoned by learned Counsel. Ground 2 challenged the jurisdiction of the learned trial Judge to continue the hearing during the annual vacation. Learned Counsel for the appellants, canvassing the point of objection, drew attention to Midwestern State Notice No. 131 of 26th March, 1975 published at page 163 of the Midwestern State of Nigeria Gazette No. 20, Vol. 12 of 10th April, 1975. It is a Notice under Order 25, Rule 5 of the High Court (Civil Procedure) Rules, 1958 issued by the Chief Justice of Midwestern States of Nigeria which reads:

"IN THE HIGH COURT OF JUSTICE MID WESTERN STATE OF NIGERIA

NOTICE UNDER ORDER 25 RULES OF THE HIGH COURT (CIVIL PROCEDURE) RULES 1958 ANNUAL VACATION

The High Court of Midwestern State of Nigeria will be on vacation as from Thursday, 31st July, 1975 until Saturday 30th August, 1975 (both dates inclusive).

2.      The Legal Year 1975/76 will commence on the 1st day of September, 1975.

3.      During the vacation, their Lordships will deal with urgent civil and criminal matters, the civil actions may be heard only by leave of a judge on the application of both parties to the suit or their counsel.

Dates at Benin City this 26th day of March, 1975.

Mason Begho (Chief Justice)

Midwestern State of Nigeria."

By this notice, the period "31st July, 1975 to 30th August, 1975" was constituted the court's annual vacation.

Learned Counsel further cited the provisions of Order 25 Rules 5 and 6 of the High Court (Civil Procedure) Rules 1958 and then submitted that the combined effect of these rules is to deprive the learned trial Judge of the jurisdiction to hear or continue the hearing of any civil matter during annual vacation unless leave of the court to the hearing was obtained on the application of both parties.

Learned Counsel then submitted that although the hearing of this matter now on appeal was commenced before the annual vacation the proceedings complained of were the proceedings which took place during the annual vacation period already referred to and in particular the hearing (proceedings and judgment) that took place on the 15th and 25th of August, 1975.

He finally submitted that the hearing was without jurisdiction as the leave of the court to have the case heard was neither applied for not obtained by both parties. In conclusion, he observed that he applied in writing for adjournment of the hearing till after the annual vacation bearing in mind the above Notice of Annual Vacation and also referred to his state of health.

Mr Okpoko, learned Counsel for the respondent agreed with learned Counsel for the appellant that the hearing of the case on the 15th day of August, 1975 fell within the period of the annual vacation. He also conceded the point that the hearing was not done pursuant to any leave of court previously granted as required by the provisions of Order 25 Rule 6 of the High Court (Civil Procedure) Rules 1958. He was at considerable pains to defend the hearing on the 15th day of August, 1975 and finally agreed with the submission of appellants' counsel that the proceedings on that day was a nullity.

There is a dearth of reported authorities either here in Nigeria or in England on the point raised in this appeal.

The only case cited to us by counsel for the respondent was the case of Macfoy Vs. United Africa Co. Ltd. (1962) AC 152. That case is not on all fours with this instant appeal. It was a Sierra Leone case which went on appeal from the Supreme Court to the West African Court of Appeal and from there to the Privy Council. It dealt with delivery of pleadings during the long vacation under the Rules of the Supreme Court of Sierra Leone which contained no express provision as regards the time set by the rules for pleadings during the long vacation, and by virtue of Order 52 Rule 3 of the Rules of Sierra Leone supreme Court resort was made to the provisions of the English Rules and the Privy Council held that delivery of the statement of claim in the long vacation was only voidable and not void - it was only an irregularity and not a nullity.

There was no express exclusion of vacation period in the calculation of time for delivering pleadings as is now contained in our rules.

We think that the provisions of Order 25 Rules 4 and 6 of the High Court Rules 1958 applicable to Midwestern State now Bendel State which are relevant in the determination of the issues raised before us need our further consideration.

The two rules read:

"(5)    There shall be an annual vacation of the court to commence on such date in six weeks as Chief Justice may by notification in the Regional Gazette appoint.

(6)     During the annual vacation, criminal cases may be tried, but civil actions may be tried only by leave of a judge on the application both parties thereto

Interlocutory applications of an urgent nature shall be dealt with as soon as possible."

The authors of Vol. 5 Strouds Judicial Dictionary Edition at P. 2921 define the phrase 'time of vacation' of the courts as follows:

"Time of vacation" of the courts held to mean such time as the court is not sitting (Walsh Vs. Grier in Rep 4 Eq 303 Blake Vs. Blake 8 Ir. Rep 505)"

There is no definition of 'vacation' in our Rules but there is in the white Book, i.e. supreme Court Practice 1976; therein the definition given in Order 1, rule 4 reads:

"Vacation means the interval between the end of any of the sittings mentioned in Order 62 Rule 1 and the beginning of the next sittings."

We are therefore in no doubt that it is the law that the High Court will not normally sit or open during vacation to hear or continue the hearing of cases. While the annual court vacation cannot be described as public holiday, its legal effect on court proceedings is similar.

In the case of Justus Olayemi Ososami Vs. The Commissioner of Police (1952/1955) 14 WACA Verity C.J., dealing with the legality of sitting on public holidays, said at page 24

"It has recently been held by this Court that a public holiday is like a sunday, dies non juridicus, and that no law proceeding, can be held on a such a day."

The important and effect of vacation is brought out by rule 7 of Order 25 of the High Court (Civil Procedure) Rules 1958 which reads:

"7.     The time for filing and service of pleadings shall not run during the annual vacation unless otherwise directed by the Court or a judge."

When, therefore learned Counsel for the appellant complains that the learned trial Judge had no jurisdiction to proceed to judgment all he was saving is that the learned trial Judge has no authority to sit on the cause at the time he did i.e. on the 15th day and 25th day of August, 1975. Jurisdiction is defined by the learned authors of Halsbury's Laws of England 4th Edition in paragraph 715 at page 323 as follows:

"By jurisdiction is meant that authority which a court has to decide matters that at litigated before it or to take cognizance of matters presented in a formal way for its decision."

It is clear to us that the effect of Order 25 Rule 5 and the notification, Midwestern Notice 131 of March, 1975 was to deprive the learned trial Judge of the authority to sit and decide the matter now on appeal before us during the period of vacation in the absence of any leave granted pursuant to an application made by both parties to him for leave to continue the hearing of trial during the period. As there was no such application, the proceedings i.e. hearing the judgment delivered on the 25th day of August, 1975 are a nullity.

More importantly, the provision of section 33 of the High Court Law 1964 No. 4 now Cap 65 of Laws of the Bendel State of Nigeria 1976 recognises that during vacation the Court is not open for the hearing of general legal business pending therein. That section reads:

(1)     Subject to rules of Court and subject to vacations as may be prescribed the Court shall be open throughout the year for the transaction of the general legal business pending therein.

(2)     Provisions shall be made by the rules of Court for the hearing during vacation by judges of the High Court of all such applications as may require to be immediately heard.

Also section 32(2) of the High Court Law makes the jurisdiction to sit for the trial of cases (criminal and civil) subject to the directions that may be given by the Chief Justice. It reads:-

"Every judge, subject to say to any direction that may be given by the Chief Justice, shall sit for the trial of criminal and civil causes and for the disposal of other legal business pending at such places in the State and at such times as he may think fit."

By the ordering of the vacation and notification in the Gazette, the Chief Justice has directed suspension of sitting except for the purposes and in the manner described in the Notice. This may have escaped the notice of the learned trial Judge who, we observe, indicated his reason for refusing an adjournment till after the period of vacation in his comments on the conduct of defence counsel in the case as a post script to his judgment.

Commenting on the conduct of counsel, the learned trial Judge observed "on the last day of hearing one of the counsel who had appeared for the defendants in this case wrote asking for an adjournment on the ground that he was suffering from malaria and that his doctor has advised him to rest for a fortnight...The said counsel for the defendants knew very well I had to go on transfer by the end of the month and his asking for an adjournment to some time in September clearly pointed to his not wanting the hearing to be conducted before I proceeded on transfer."

Whether a matter or application is urgent or not is a question for the learned trial Judge and this fact can only be determined in an application filed in court in accordance with the Rules of Court.

The court must be satisfied that there is urgent need for the hearing to take place during the annual vacation. (See Re Showerings Vine Products & Whiteways Ltd. (1968) 3 All E.R. 276). There is no assumed urgency. Facts indicating urgency are facts relevant to the cause or matter not arising from the disposition or deployment, redeployment or transfer of the learned trial Judge.