GBA President ‘in error’ on legal vacation, trial – Deputy AG

Legal practitioner Dr. Justice Srem-Sai has faulted the President of the Ghana Bar Association (GBA) over claims made in a letter to the Chief Justice dated August 10, 2024, regarding the conduct of trials during the legal vacation.

In the letter, the GBA President made two key assertions. First, that “Vacation Courts” only handle emergencies, “usually interlocutory matters and never trials.”

Second, was that the decision to proceed with substantive matters during vacation “has always been the willingness, availability of Counsel to appear,” meaning “Counsel are not under any compulsion whatsoever to appear before a Vacation Court.”

However, Dr. Srem-Sai in statement says both claims are unsupported by law, rules, practice, or reason.

Dr. Srem-Sai explained that court work is divided into two: substantive proceedings which can finally determine a case, including trials; and interlocutory proceedings such as motions and summons which do not.

He noted that during the “long legal vacation” in August and September, superior courts only “scale down significantly”, they do not shut down. A few judges are designated to work by a warrant issued by the Chief Justice, who is the administrative head of the courts.

“It is the Chief Justice who determines when and where a Court should work,” Dr. Srem-Sai wrote. A lawyer or a body of them do not determine that,” he stated.

He argued that giving lawyers the power to decide whether to appear would undermine the purpose of courts.

According to him, “A lawyer’s primary duty is to his client not to the client of another lawyer. If allowed to determine how justice is administered… lawyers will decisively make decisions which will promote his client’s interest over the interest of another lawyer’s client.”

Citing England, where the vacation practice originated, he noted that the Civil Procedure Rules Practice Direction 2F vests discretion in the bench with phrases like “as the Court may direct” and “subject to the discretion of the Judge,” The same, he said, applies in Ghana.

He noted that contrary to the GBA President’s claim that trials are “never” held during vacation, Dr. Srem-Sai said vacation judges can and do conduct substantive proceedings, but only in respect of cases in their own courts.

According to him, this is because a vacation judge eventually takes his leave during term time, and another “term judge” then handles only interlocutory matters in his court until he returns.

The arrangement, he explained, prevents cases in a vacation judge’s court from suffering “disproportionate delays.”

For cases from other judges’ courts, a vacation judge may only take interlocutory matters, because only a substantive judge can finally determine a case.

“So, again, one is not particularly clear what the GBA President grounds the allegation that courts ‘never’ conduct trials during legal vacations on,” he stated.

Dr. Srem-Sai acknowledged that law practice is draining and that legal vacation offers a needed rest. He said judges have traditionally accommodated lawyers’ requests to scale down work, but “always upon request, on case-by-case basis, and is subject to the consideration of the Judge.”

“What a professional lawyer is not entitled to do, and cannot do is to, in vacuo, beforehand, declare that he will not attend proceedings at all,” he concluded.

He warned that the GBA President’s proposition “seeks to move the power to manage and control court proceedings and to do justice from the hands of the Judge into the hands of a lawyer,” a move with “severe and far-reaching policy implication for justice administration in Ghana.”

By Edem Mensah-Tsotorme