VACATION

• Date: 06 February 2019

(1) "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 v. Grier In Rep 4 Eq 303 Blake v. Blake 8 lr 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 v. The Commissioner of Police (1952/ 1955) 14 W.A.C.A. 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 such a day." The importance 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 saying is that the learned trial Judge had no authority to sit and adjudicate 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 Laws of England 4th Edition in paragraph 715 at p. 323 as follows: - "By jurisdiction is meant the authority which a Court has to decide matters that are litigated before it or to take cognisance 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, Mid-western 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 or...