The ongoing debate over the hearing of cases during the legal vacation may benefit from a return to the text of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), particularly Order 79.

Order 79 Rule 1(1) provides, in material part, that:

“Subject to the Courts Act, 1993 (Act 459) as amended, the Chief Justice may appoint any day including vacations for the hearing of causes or matters as circumstances require.”

Three features of this provision deserve emphasis.

First, the power is vested in the Chief Justice. Rule 1 identifies the Chief Justice as the person who may appoint a day for the hearing of causes or matters.

Second, Rule 1 expressly extends that power to “any day including vacations.” Vacation is therefore not, of itself, a period during which causes or matters are incapable of being heard. The Rule expressly contemplates hearings during vacation.

Third, the criterion stated in Rule 1 is “as circumstances require.” Subject to the Courts Act, therefore, the judgment entrusted to the Chief Justice under Order 79 is whether the prevailing circumstances require the appointment of days, including days falling within vacation, for the hearing of causes or matters.

It is difficult to read into that provision an additional condition which Rule 1 itself does not state. Once the Chief Justice determines that the circumstances require the appointment of vacation days for hearings, disagreement with that assessment does not, without more, displace the power expressly conferred by the Rule. To allow some other person or body effectively to determine whether that power may be exercised would risk fettering, if not usurping, a power which the Rules vest in the Chief Justice.

Rule 4 must be read subject to Rule 1

Order 79 Rule 4, which prescribes the vacations of the High Court, is equally important. Significantly, it does not begin with an unqualified declaration of vacation. It begins with the words:

“Subject to Rule 1(1)…”

The expression “subject to” is important. It makes the operation of Rule 4 subordinate to, or qualified by, Rule 1(1). Thus, although Rule 4 provides for periods which shall be observed as vacations, it does so expressly subject to the Chief Justice’s power under Rule 1(1) to appoint days during those vacations for the hearing of causes or matters.

The two provisions are therefore complementary, not contradictory.

Rule 4 establishes the vacation. Rule 1 permits hearings within that vacation where the circumstances require.

It would consequently be difficult to invoke Rule 4 as establishing an absolute prohibition against hearings during vacation when Rule 4 itself expressly submits to Rule 1.

“For the hearing of causes or matters”

The language chosen by the drafter is also significant. Rule 1 does not limit the Chief Justice’s power to the hearing of “urgent applications”, “motions” or “interlocutory matters”. It uses the broader expression:

“for the hearing of causes or matters.”

It is true that the word hearing is not, throughout C.I. 47, confined to a trial. The Rules also use the word in relation to motions and applications. “Hearing” should therefore not be treated as a technical synonym for “trial”.

But that does not narrow Rule 1. On the contrary, it demonstrates the breadth of the language employed. Nothing in Rule 1 confines vacation sittings to motions, applications or interlocutory business. Had the framers intended such a restriction, they could readily have said so.

The expression “cause or matter” is not defined in C.I. 47. It is, however, an expression used widely in the Constitution, the Courts Act and the Rules of Court in reference to proceedings before a court. Nothing in that usage suggests that the expression, as employed in Rule 1, is confined to motions or interlocutory applications.

Indeed, the significance lies not in attempting to assign a narrow technical definition to “cause or matter”, but in observing the breadth of the language actually chosen. Rule 1 does not say that the Chief Justice may appoint vacation days merely for the hearing of applications. It authorises the appointment of such days “for the hearing of causes or matters.”

There is therefore no apparent textual basis in Rule 1 for the proposition that substantive proceedings or trials, as distinct from motions and applications, are necessarily excluded from vacation sittings.

What if a lawyer cannot attend?

There is also a practical way of looking at the matter.

Outside vacation, if a case is fixed for hearing and a lawyer is unable to attend for some legitimate reason, what does the lawyer ordinarily do?

The lawyer informs the court, states the reason for the inability to attend and seeks an adjournment. Whether the adjournment should be granted is then a matter for the court.

There appears to be no reason why that principle should fundamentally change merely because the hearing date happens to fall within a vacation duly appointed for sittings under Order 79 Rule 1.

The two questions should therefore not be confused.

Whether courts may sit during vacation is an institutional question governed by Order 79 Rule 1. Whether a particular lawyer is able to attend a particular case is an individual case-management question for the court.

The latter cannot properly be transformed into a veto over the former.

A lawyer who is unable to attend has the ordinary remedy of applying for an adjournment upon stated grounds. His inability to attend a particular case does not determine whether the Chief Justice was entitled to appoint the day for hearings in the first place.

Conclusion

The language of Order 79 appears reasonably clear.

Vacation is provided for under Rule 4, but Rule 4 is expressly made “subject to Rule 1(1).” Rule 1(1), in turn, expressly empowers the Chief Justice to appoint “any day including vacations for the hearing of causes or matters as circumstances require.”

The Rules therefore appear to have answered both the question of who decides and the criterion upon which that decision is made: the Chief Justice, as circumstances require.

Rule 4 creates the vacation, but does so subject to Rule 1. Rule 1 expressly contemplates the hearing of causes or matters during that vacation where the circumstances require.

Once vacation sitting days have been appointed pursuant to that power, a lawyer who is unable to attend a particular proceeding may seek an adjournment on the usual grounds. What would be more difficult to reconcile with the text of Order 79 is the proposition that individual disagreement or inconvenience can be elevated into a competing authority over a power which the Rules have expressly vested in the Chief Justice.

By: Emmanuel Adabayeri

The writer is a private legal practitioner