FOUR LEARNING POINTS FROM THE 2019 ANNUAL VACATION

1.0.        INTRODUCTION

For the first time, I handled a vacation matter during the this year’s long vacation of the High Court of Lagos State. It was a bail application; client was arraigned towards the end of June. I filed a bail application on his behalf middle of July and believing that his bail was urgent; being an infraction of his constitutional rights to personal liberty and presumption of innocence (lawyer-speak), I filed a Motion Ex-Parte for vacation hearing despite the counsel of my mentor that it would not be considered urgent.

As it turned out, the Honourable Court considered it urgent and ruled in that light; I won this, I had thought. However, having appeared before three judges and effecting service of Summons for Bail, Hearing Notice and Enrolled Order and being ready for argument, I could not move my Summons for Bail because the Defendants were not in court and my matter to my chagrin was sent back to the trial court and adjourned to October while my client remains in custody. What did I learn in during the about 5 weeks I tried to secure my client’s bail pending trial?

2.0.        MY LEARNING POINTS:

a.    APPLICATIONS FOR VACATION HEARING MUST RELATE TO SPECIFIC APPLICATIONS: While reviewing one of the files in my mentor’s office, I had seen the first point come to life. An application for vacation hearing cannot be in the air; it must state the application the Applicant desires to be heard during vacation. If it does not, it is liable to be struck out. So, to merely pray for vacation hearing without being specific on what one wants to be heard during vacation, is a waste of time; the court usually being unwilling to consider an omnibus prayer[2] and perhaps due to being worn out throughout the legal year is a little bit impatient. Further to this, the fact that one has secured an order for vacation hearing in respect to an application does not mean, the vacation judge can hear other applications without specific applications seeking to hear these other applications during vacation. So the fact for example that one secured an order to hear an application for a Garnishee Order Nisi during vacation does not necessarily mean that a vacation judge is the appropriate fora to make it absolute; I observed this scenario in court.

b.    VACATION HEARING IS FOR REAL AND NOT MADE UP URGENCY:[3] Vacation hearing is for real urgency. So, if A files a suit in April and does nothing until vacation period on his suit only to wake up in July to be praying for vacation hearing of a motion, he may not be heard. On the alternative if the matter is not urgent and a party desires to be heard in respect to certain applications during vacation, he must get the other parties to agree with him and then pray the vacation judge for an order permitting vacation hearing.

c.     JUSTICE IS TECHNICAL: Off the record, a trial judge who I admire and before whom I had a matter during the legal year observed that if one wants judges to clear their docket within a twinkle of an eye, one should remove the fair hearing provision from the Constitution. I think I saw this play out during this vacation. When the second vacation judge before whom I appeared ordered that I served enrolled order and hearing notice on the Complainant after I had merely served hearing notice, I complained to a senior lawyer sitting close to me that where was that in the Rules. He informed me that it was not in the Rules but that was the practice. I was like why will it be the practice if it is not in the Rules. However, as I reflected later, I saw reasons why it was necessary that the enrolled order be served together with hearing notice especially in a multi-defendants’ criminal matter like mine where multiple lawyers represent the defendants and some of the defendants incriminated one another. Enrolled order together with the hearing notice gives notice to the Complainant to know what particular application has been set down for Vacation Hearing; hearing notices that were previously issued by the Registrar of the first Vacation Judge did not state the particular Summons for Bail that was set down for hearing. Fast forward to two weeks later while before another vacation judge and being informed that all the Defendants must be in court at every hearing of a criminal matter and that the Defendants may have one or two things to say on my Summons for Bail, I just had to conclude that Justice is technical. I sincerely do understand the judges; due process must always be followed if their decisions will not be overturned unnecessarily on appeal on grounds of lack of fair hearing.[4] A Legal Practitioner must be skilled in practice (judicial due process) to swim through the requirements that the law many times place before granting prayers he seeks.

d.    KNOW YOUR JUDGE: I think more than ever before especially for the young lawyer who has not traversed the length and breadth of the courts within his jurisdiction, the long vacation period provides an opportunity to appear before a variety of judges. So, it is very important that such a lawyer knows the preferences and leanings of the judges. I attended the hearing before the first vacation judge that handled my matter a day before my matter was scheduled to hold. I was conversant with the practice (other than My Lord’s vacation practice so I did not have any idea that the Honourable Court will order that I serve the Enrolled Order) of the second vacation judge that sat over my matter. After, I secured an Order for vacation hearing, the Honourable Court ordered that I served Hearing Notice on the Complainant. I did. I effected service only to appear before the same vacation judge and have my matter adjourned for argument before another vacation judge who thought it fit to return my file back to the trial judge for determination because all the Defendants were not before him. Well, as it turned out, my mentor had hinted me that the last vacation judge before whom I appeared will not grant my application. I had having had a pip into the record of the court the previous day (the court returned most criminal matters, which must have been bail applications back to registry) had fears about the viability of my Summons for Bail. Thou Lawyer know thy judge.

3.0.        CONCLUSION

I am a more skilled Legal Practitioner because of the experience I have garnered during this vacation period. I hope to use this experience in the fulfilment of my dreams and aspirations. Did you handle any vacation matter during this Annual Vacation or previously? What was your experience? I will like to know. Kindly share.

[1] Oluwakemi S. Adeyemi Esq is an Associate at P O Bajowa Chambers, a law firm based in Lagos and his research interest covers litigation (trial and appellate courts), the institution of effective pension system that caters for present needs while preparing for the future, the interface between law and the economy of nations especially Africa, the development of an efficient and effective transportation model for Africa’s mega cities. He shares some of his thoughts on these issues and more via www.medium.com/@aolulaw17 and interfaces on Twitter via twitter.com/@aoluwakemi17. He may be reached via [email protected].

[2] Nsofor JCA in Oginni v. IMB Ltd. (1994) 3 NWLR (Pt. 330) 89 at 90 observed: “‘And further such order(s) as this Honourable Court may deem fit to make in the circumstances’ I shall pause here for a while to say straightaway for the purposes of completeness to put the point aside, that the prayer above …, in my respectful view does not constitute a known prayer. The opinion which I have consistently held and I had so expressed myself on other occasions. See Oye v. Governor Oyo State (1993) 7 NWLR (Pt. 306) 437 is that such a ‘Prayer’ is no specific prayer. The order and the rule of court, the relevant and proper law/rule on which the court is called to consider the application, grant it or refuse it, does not provide for such a head of prayer. I have therefore not considered that head of prayer. It is not in my view considerable.”

[3] Order 49 Rule 5 of the High Court of Lagos State Civil Procedure Rules 2019 provides that: “Notwithstanding the provisions of Rule 4, any cause or matter may be heard by a judge during any of the periods mentioned in paragraphs (b), (c), (d) of Rule 4 (except on a Sunday or public holiday) where such cause or matter is urgent or a Judge, at the request of all the parties concerned, agrees to hear a cause or matter”

[4] Akaninwo v. Nsirim (2008) 1 SC (Pt. III) 151 at 183 per Oguntade JSC: “It has always been said that justice should not only be done, it should manifestly appear to be done. A follow up to that is that every opportunity must be afforded the parties to a dispute in court to put their case fully before the court.”