GBA president’s legal vacation claims challenged by Srem-Sai

A legal commentator has rejected two claims made by the President of the Ghana Bar Association (GBA) about the conduct of court proceedings during Ghana’s legal vacation, arguing that the authority to manage cases rests with the bench rather than lawyers.

In a letter to the Chief Justice dated 10 August 2024, the GBA president argued that a vacation Judge does not hear matters relating to the substance of a case or conduct trials during the legal vacation. She also maintained that any decision to proceed with substantive matters during that period should depend on the lawyers involved, rather than the court.

Srem-Sai, writing in response, says neither position is supported by law, procedural rules, established practice or sound reasoning.

The argument is based on a distinction between two broad categories of court proceedings. Substantive proceedings are those capable of finally determining a case and generally include trials and hearings on the merits. Interlocutory proceedings, by contrast, concern motions and summons that do not bring a case to a final conclusion.

Superior courts traditionally reduce their workload substantially during August and September. This period is commonly known as the “summer vacations” or the “long legal vacation”, and is sometimes informally referred to as “Judges’ vacation”. It is not, Srem-Sai says, a “lawyers’ vacation”.

The courts do not close entirely during this period. A limited number of judges continue working, with the Chief Justice, as the administrative head of the courts, determining which judges will sit. That responsibility also operates alongside a judge’s inherent judicial authority to manage and control the work of his or her court.

A judge is authorised to sit during the legal vacation through a warrant issued by the Chief Justice. Such a judge, known as a vacation Judge, may hear cases from two sources: matters in the judge’s own court and matters belonging to courts whose judges are on vacation.

For cases from the vacation Judge’s own court, both interlocutory and substantive proceedings may be heard. However, where cases come from another court, the vacation Judge may deal only with interlocutory matters. The explanation given is that only the substantive Judge, rather than a holding Judge, can finally determine a case.

Who decides whether a case proceeds?

Srem-Sai disputes the suggestion that lawyers should determine whether substantive proceedings take place during the legal vacation.

The central argument is that a lawyer’s primary duty is to his or her own client, not to another party represented by a different lawyer. Allowing lawyers to control the administration of justice could therefore enable them to prioritise their clients’ interests over those of other litigants. Balancing those competing interests is one of the fundamental reasons courts and judges exist.

Against that background, Srem-Sai describes as “fundamentally disturbing” the GBA president’s assertion that “the overriding consideration in any matter brought before a Vacation Judge has always been the willingness/availability of Counsel to appear before the Court in any matter slated for conduct during the vacation.”

The practice in England, where the tradition of legal vacations originates, is cited in support of the argument. The Civil Procedure Rules Practice Direction 2F governs vacation work in the English High Court and repeatedly leaves decisions to the court or the relevant judge. It refers, among other things, to situations where “the senior judge of that Division determines …”, “if the Court is satisfied …”, “as the Court may direct” and matters being “Subject to the discretion of the Judge”.

Srem-Sai says the same principle has long applied in Ghana. The Chief Justice decides when and where a court should sit and may, through a warrant, direct a judge to sit even at weekends. Ghanaian courts have also conducted trials during legal vacations as part of customary practice.

Trials during the legal vacation

The response further argues that vacation Judges can and do hear substantive matters, including trials, in cases assigned to their own courts.

A vacation Judge is eventually entitled to take his or her own period of vacation during term time. At that point, another judge takes responsibility for the court’s cases. That replacement judge may hear interlocutory matters, but substantive proceedings in the absent judge’s cases remain suspended until the substantive Judge returns.

This arrangement is intended to prevent cases in a vacation Judge’s court from suffering disproportionate delays simply because that judge has undertaken vacation duties. Srem-Sai therefore questions the basis for the claim that courts “never” conduct trials during legal vacations.

The article acknowledges that legal practice can be physically, mentally and emotionally draining, and says many lawyers suffer serious physical, behavioural and mental illnesses as a result. Some, it adds, manage their lives through indulgences and addictions.

Legal vacations can consequently provide lawyers with an opportunity to rest. Judges may accommodate requests to reduce work, but such arrangements are made on a case-by-case basis and remain subject to the judge handling the proceedings.

Srem-Sai concludes that the GBA president’s proposal would transfer control over court proceedings and the administration of justice from judges to lawyers, with serious implications for justice administration in Ghana.

A lawyer who wishes to rest during the legal vacation may attend court and ask the judge for accommodation. The judge can grant the request fully or partly, or refuse it. What a lawyer cannot do, the article says, is declare in advance and “in vacuo” that he or she will not attend proceedings at all.