Substituting May 29 with June 12 as Public Holiday is Illegal – Aikhunegbe Malik

Late Chief MKO Abiola

In addition to granting posthumous awards on the late Chief MKO Abiola and Chief Gani Fewehinmi respectively, His Excellency, Mr. President also proclaimed that henceforth, June 12 of every year shall be observed as a public holiday. In doing this, Mr. President cancelled, annulled or avoided May, 29 as a public holiday in Nigeria.

Clearly, the action of Mr. President discerns serious legal issue(s) and expectedly arguments and commentaries have been flying out of different quivers, all contending the correctness or legality of Mr. President’s action. While some commentators see nothing wrong in it, others, including (expectedly) the Senate have kicked against it. Now, upon a dispassionate perusal of the relevant statutory provisions and case laws, I hold the considered view that Mr. President was absolutely wrong on this. Indeed, what Mr. President has done, with profound humility, amounts to a usurpation of the legislative powers of the National Assembly with the proclivity to set the Executive and Legislative arms on a collision course.

There is no denying the fact that under and by virtue of section 2(1) of the Public Holidays Act, cap P40, LFN 2004, the President is imbued with the power to appoint, nominate or declare a special day to be kept as public holiday in Nigeria. For ease of reference and for purpose of completeness, I have set down below the ipsissima verba of section 2(1) of the Public Holiday Act thus:

   “2(1) In addition to the days mentioned in the schedule to this Act, the President may by public notice appoint a special day to be kept as a public holiday either throughout Nigeria or in any part thereof, and any day so appointed shall be kept as a public holiday”

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It is beyond argument that the afore quoted provision of our law is clear and unambiguous. In a situation such as this, therefore, the words employed therein must be interpreted literally as the intention of the lawmakers is not obscure. This is a principle of law that has been stated and restated by with emphasis by our courts that it has become weather-beaten. See Awolowo vs.Shagari (1979) 6-9 SC 51, IBWA vs. Imano Nig. Ltd. & Anor. (1988) 7 SCNJ (Pt. II) 326 at 344-345, Cotecna  Int. Ltd. vs. Churchgate (Nig) Ltd (2010) 18 NWLR (Pt. 1225) 346 SC.

Now, applying the literal rule of interpretation to the aforequoted provision, what comes out clearly is that the power which is donated to the President and which he can exercise is the power to “appoint” or “nominate” or “designate” or “declare” a day, in addition to the days mentioned in the schedule to the Act, as a public holiday in Nigeria. By no stretch of imagination or invention is the President given the power to “substitute” any day listed as public holiday in the said schedule with another one. Such power is within the exclusive preserve of the National Assembly by virtue of section 4 of the Constitution.

Be it noted that the critical operative phrase in section 2(1) of the Public Holidays Act is “In addition to…” which connotes the combination of two or more things. Put differently, whenever the words are used, the implication is that a thing can be added but certainly not the exclusion of the other.

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The phrase “in addition to” received judicial construal in SPDC Nig. Ltd. vs. Donatus Ezeukwu & Ors. (2010) LPELR-4911 (CA) where the court of appeal cited with approval the definition of the phrase offerred by the Blacks Law Dictionary, 6th ed. at page 38 as “Implies physical contact, something added to another” and the New Webster’s Dictionary of English Language where the phrase is defined as and meaning  “as well as” to hold that whenever the phrase is employed, it means that nothing can derogate from whatever is stated therein. There can only be an addition to it.

The net effect of the foregoing is that in the exercise of his power under and by virtue of section 2(1) of the Public Holidays Act, the President can only add to the list of the days listed in the schedule to the Act and not subtract therefrom. Therefore, to the extent that 29th May has been recognised and codified as a public holiday in the Act, the President cannot whimsically delete, remove, subtract or obliterate same from the Act by a public notice. His power under the law is clearly circumscribed and limited to adding another day, as he has done now with June 12.

The sum total of all I have said is that the substitution of May 29 with June 12 as Democracy Day, and therefore, a public holiday in Nigeria by HE, Mr. President is unlawful and illegal. It’s an act which cries to high heavens for support in fact and in law.

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Abuja Nigeria


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