150 Years of the Supreme Court: Revisiting Chief Justice Azu Crabbe’s Centenary Address (1976)

My Lords, Members of the Supreme Military Council, Mr. Attorney-General, Commissioners, Your Excellencies, Members of the Legal Profession, Nananom, Ladies and Gentlemen,

We are met this morning at a great moment in the history of this nation; a moment of joy in past achievement, of pride in our present circumstances, of well-founded confidence in the future, but, above all, a moment that must be one of solemn and humble homage. Exactly one hundred years ago today Ordinance No.4 of 1876 that gave birth to a Supreme Court for this country, separate and distinct from the Courts of other British possessions in West Africa, acquired the force of law. The Supreme Court of the Gold Coast was born.

Since then, the Sovereign Power by whose will this majestic institution was implanted in our country has shed virtually all of its imperial grandeur. The testimony for which the Court itself was initially created took a little over a quarter of a century to assume the final form that Ghana has today. Within this testimony itself, it was not until 1935 that the machinery of the Judicial system was fully developed to give uniform coverage to the whole of the country.

The Supreme Court, as a physical institution, has heen growing steadily but slowly all through these hundred years. Indeed, the last major block in its structure was laid in place only last year, with the establishment of a High Court at Bolgatanga. It has been a century of slow but steady growth, physically.

With the law itself, the story is vastly different. The Ordinance of 1876 implanted among our people a system of legal ideas painfully developed over more than seven hundred years by a people not of our kindred, for purposes alien to our own, for reasons that are more accurately described as historical accident than anything else. Our conception of society is vastly different from that of the people who established this system of laws among us. Our instinctive sentiments of social right and wrong do not always coincide with theirs. With the establishment of their system of laws, they did make a small concession to the fact that our own peoples, in diverse ways, had found positive answers to most of the fundamental social problems that are the characteristic features of most systems of law.

But the concession was limited. Our customs were to be repugnant to justice, equity and good conscience, and little doubt existed as to the standpoint from which these criteria were not to be determined.

The laws which became our laws a hundred years ago were not necessarily given us to make our society, as it was then, in any abstract sense better-organised socially, better-founded morally, than it was before. Let us cherish no fond historical illusions. English law arrived among our people, fully developed, readily applicable by its developers, and completely equipped to enable another people to make our nation their own, and to facilitate the social and political re-organisation of our people at least as much for the benefit and convenience of the newcomers as for the indigenous people who make our nation of today.

If today the result is very different from what it might have been; if, instead of a system of laws totally alien to our African consciousness, we are the proud possessers of a system that is capable of responding to our every social need, which nevertheless preserves enough of its original features to remain recognisable, among the great legal systems of the world, as the common law, it behoves us as a people, to recognise and pay a homage of many facets upon the centenary of this great historical encounter; homage to the spirit behind the laws that arrived ready-made from the wisdom of a distant transmarine people; homage to our professional predecessors who received it, learnt it, nurtured it locally, and transformed it from a system of rules of domination into a handmaiden of our own social organisation, and, above all, homage to the native genius of our people, which, far t revolting against innovation, by a spirit of patient endurance, enquiring curiosity, a general disposition to trust the legal profession, and with infinite social good sense, have been content to place implicit trust in the ultimate effectiveness of the legal system for these hundred years. Without any, these factors, this great and extremely fertile admixture of social genius, this historical awe-inspiring cross-fertilisation of the ethnic genius of two very different societies, this living pro of the essential universality of human wisdom would have been impossible.

Let us, then praise the common law, let us praise our profession, and let us, above all, praise of people, on this glorious day.
In an inspired moment of perception, that pioneer of comparative law, Montesquieu, in passage that almost exactly anticipates the sentiments I wish to communicate today says this:

“….. it is necessary that People’s minds should be prepared for the reception of the best laws”.

Montesquieu next gives a specific warning about the transplantation of the laws of one people among another people who are totally different:

“Should there happen to be a country”, he says, “whose inhabitants were of a social temper, open-hearted, cheerful endowed with taste and a facility in communicating their thoughts; who were sprightly and agreeable; sometimes agreeable; sometimes imprudent, often indiscreet; and besides had courage, generosity, frankness and a certain notion of honour, no one ought to endeavour to restrain their manners by laws, unless he seeks to lay a constraint upon their virtues…. It is the business of the legislature to follow the spirit of the nation, when it is not contrary to the principles of government; for we do nothing so well as when we act with freedom; and follow the bent of our natural genius”.

My Lords, Your Excellencies, Nananom, Ladies and Gentlemen, those observations were made in just about a hundred years before the chiefs and elders of our country made their first formal submission to the supremacy of the common law in the Bond of 1844; and the creation of the Supreme Court, the formal state machinery for ensuring the effectiveness of that act of submission, must, on an occasion such as this, be appraised in terms of such a context of ideas.

For it was by no means certain at the time that the intricate and in many places obscure rules that form the common law would benefit the diverse tribes that were later to become the Gold Coast Colony, and, still later, the modern, free, and independent Republic of Ghana. Neither was it by any means certain that the people of this country would in time come not only to adopt this system of laws as their own, but adapt it with outstanding success to their own needs and develop a profession to operate it that would prove as adept in it application as can be found in the distant country of its origin.

What must have been certain to the British Colonial Administration of 1876 was that the extension of British law to our people by means of a formal machinery of Courts was an essential and extremely efficient means of consolidating the imperial gains of the last century in this part of the world.

How then, has it come about that we, a people who, twenty years ago, near this very spot, amid scenes of unprecedented jubilation, cast off the yoke of colonial bondoge, find ourselves today celebrating with equal pride a contury of the survival of a system that was thought, at its introduction, to be an indispensable part of the apparatus of colonialism?

The explanation, it seems to me, must be found not in any sentimental attachment to the foreign institution that has survived from our colonial past, but in the intrinsic excellence of the spirit of the common law itself; its obdurate insistence on protecting the legitimate immediate rights of the individual, no matter who, and under all circumstances; its intractable commitment to the collective common sense, not of its inventors alone, but, more important to the particular society which it serves; its infinite flexibility of texture, so that it responds not only to the accumulated historical wisdom of a people, but also to the felt necessities of the time, the prevalent moral and political theories, the intuitions of public policy, avowed or unconscious, and even to the prejudices which judges share with their fellow men. One result – perhaps the most important result – of these salient characteristics of the common law is that it never is a reliable instrument in the hands of any oppressor, no matter how determined he may be. No matter how hard he tries to use it, it sooner or later, in loyal conformity to its own spirit, becomes an ally of the oppressed.

Thus it is that the common law in this country, by an imperceptible but nevertheless steady and real process of change, has transformed itself and its role among our people from an instrument designed to assist colonial administration to the principal shield of our society against disorder, the surest guarantee of civil liberty, and the best yardstick of orderly social development that this nation has today. It is first to the genius of the common law, then, that we must pay homage today.

But to leave it at that would not be to furnish an adequate explanation of our reason for pride and joy on this day, and it would have left unacknowledged the tribute that must be paid to the people of Ghana themselves for their part in this process.

Of what then, should this tribute consist? Montesquieu, in the treatise from which I have just quoted, also spoke of a people who are open-hearted, cheerful, endowed with taste and a facility in communicating their thoughts; who are also sprightly and agreeable, sometimes imprudent, often indiscreet, having courage, generosity, frankness, and a certain notion of honour, and warned that the indigenous laws and customs of such a people should not be transformed by legislation without careful forethought. Could one describe our people less accurately than that? It is such a people who found themselves, a hundred years ago, the unsoliciting recipients of a new and comprehensive system of law which we know as the common law. Two different lines of development could have been predicated at the time. One might have followed the sentiment expressed by Coke in 1608 that the Queen of England was under no obligation to pay any heed to the established laws and customs of our people, because our land could not at the time be described as a Christian Kingdom. That is a doctrine of the common law, happily mute now, but by no means certainly dead in 1876. Another development, the more fruitful, was the one based on the more open-minded view of Lord Mansfield, in 1774, that such attitude as Lord Coke expressed was an absurd relic of the mad enthusiasm of the crusades. The latter view in more sober but no less forceful language, Lord Denning expressed in these terms in 1955:
“…. the common law cannot be applied in foreign lands without considerable qualification. Just as with an oak, so with the English common Law.

You cannot trans, want it to the African continent and expect it to retain the tough character which it has in England. It will flourish indeed but it needs careful tending. So with the common law. It has many principles of manifest justice and good sense which can be applied with advantage to peoples of every race and colour the world over: but it has also many refinements and technicalities which are not suited to other folk. In those far-off lands the people must have a law which they understand and which they will respect…”

So you have a flexible instrument that can only serve effectively when suitably adapted. It is indisputable tribute to the social genius of our people that they have succeeded in this process adaptation without altering beyond recognition that system of laws to which, by an accident history, they became the heirs.

For, ultimately, it is a people who must make their own laws, and in saying this, I do not: merely to the comparatively mechanical process of parliamentary legislation. I am also thinking of more subtle and more deeply-influential reactions of the people which indicate the lines along we their judges and lawyers must apply their minds in the more diffuse process of decision-making the development of legal principles. I am thinking of the vast army of ordinary Ghanaian litigants forever immortalised in our law reports, whose strong and unyielding sense of justice drove then imprint on the foreign common law the distinctively Ghanaian departures which give our law separate and recognisable character. I am thinking of the litigants who were prepared to sp considerable portions of their private means to ensure the exact articulation in modern legal term great social principles, characteristic of our law, like the just legal recognition of children born our welock, the communality of family property and obligations, the identification of practically er single Ghanaian individual with some land belonging to his ancestors, the social security of extended family system, and the formal prohibition of unseemly forms of address. Each of th major features of the law, our common law, as we have developed it in these hundred years is t result of some litigant bound in loyalty to the customs of his people, insisting to his lawyer: “Go the Court, and remain there as my advocate, until this conception of our ideal of social wisdom vindicated and imprinted upon the law”.

It is for this contribution to the development of our law that I, on behalf of the legal profession, its admirers, its practitioners, its judges, on behalf of the legal system itself, am proud to have honour to salute the people of Ghana on this centenary day.

Of the legal profession itself, modesty prevents me from speaking in terms of extended euless while duty and piety towards our predecessors demands that very form of reminiscence. My Lord Commissioners, Distinguished Guests, Ladies and Gentlemen, the social and political history of the nation may be very fittingly compared to a kente cloth every line of whose richly variegated design corresponds to the efforts, forensic, political, or purely social of some great Ghanaian lawyer. In the most senior of the professions in Ghana, our people have been indeed blessed. The natural facilities of our people for self-expression and persuasive speech, fertilised by the rigid discipline of training that the common law demands as a condition of its mastery have combined, at every period of a political history, to give this nation an ample supply of lawyers ever ready to respond to the needs: the time.

One group of such men, at the beginning of this century, by the application of the very techniques they learnt from our foreign governors, managed to persuade the British Government! leave the juridical control of the systems of our land tenure in the care of our people, and thus save our times from the bitter armed struggles that, for the last thirty years have stained the history of decolonisation in other lands. Another group, when the opportunity offered, by exploiting the chand to advise the Colonial administration in our past Legislative Councils, demonstrated early in ou political history the rich potential of leadership manpower that this nation even then possessed an thereby ensured that our moral case for independence and nationhood would become, and remait unanswerable.

In our comparatively short period as an independent nation, there has never been a time when in the turbulence of the struggle for the balance of political forces within the body politic, some lawyer has been wanting, when the need arose, for the lonely to be defended, for the social outcome before the tribunals of the state to find a loyal advocate. There have, in the period that we are reviewing today, been occasions when some of them, driven by a greater sense of loyalty to the profession than by the more comfortable attractions of peace, social comfort and security, preferred to differ from the general feeling prevailing at the time, and not only to differ, but publicly an without equivocation, to state their difference of view in the practice of their profession. Many deserted litigant has found, at such times, that his lawyer is his only friend. Many a distressed accused, shunned by his friends, execrated by the public, has found that his salvation and rehabilitation has been initiated by the fearless impartiality of his judge.

The price at such times for the profession has not always been inexpensive. Sometimes, in a few individual cases it has even come very near to social martyrdom.

Betore you today, ladies and gentlemen, you see, in their slightly fussy, and perhaps unfashionable and certainly uncomfortable robes, the present members of this social priesthood. Like you, they are subject to all the human passions and failures. But they have had the patience to learn, and the courage to profess, the articulation of the law, and its use in the guidance of the nation. They, and we, the ministers of justice in your Courts of law, are in your hands. We need your prayers.

Finally, let me end with a plea to the Almighty for the future of the Courts and the continued beneficial development of the law. May our temples of justice be holy and true. May the ministers of the law therein be pure in heart. May they, at all times be conscious of the deep cleavage between good and evil. May the law be benign, benevolent and boundless in its inventiveness. May mercy and goodwill towards all, even our adversaries, temper our gropings towards the light of justice. May this nation, for the next, and many more centuries thereafter, flourish in freedom and justice.

Thank you.

Credit: Judicial Service.