Mensima and Others v. Attorney-General and Others [1997-98] 1 GLR 159

Material Facts:

The plaintiffs were at one point members of the Egyaa Co-operative Distillers/Retailers Society, a registered co-operative society whose members were into the production of akpeteshie, a local gin. In 1983, they decided to withdraw their membership from this Co-operative society and subsequently formed Egyaaman Distillers Ltd., a limited liability company with the objective of manufacturing and selling akpeteshie.

The second and third defendants, who were agents of the Egyaa Co-operative Distillers/Retailers Society, and with the help of the police, began impounding the products of the plaintiffs on the grounds that the plaintiffs were no longer part of a co-operative society and could no longer distil and sell akpeteshie by virtue of regulations 3(1) and 21 of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239) .

Regulation 3(1) of LI 239 provided that "every applicant for the issue of a distillers’ licence shall be a member of a registered Distillers Co-operative ," but the plaintiffs were not members of such a body.

Regulation 21 of LI 239 provided that "every distiller shall dispose of the whole of his production of spirits either to a registered co-operative or to a distiller or distillers directed to be placed under the control of the Excise Ordinance 1953 (No. 31 of 1953) in pursuance of the provision of section 2 of the Act."

In the present action, the plaintiff invoked the original jurisdiction of the Supreme Court for a declaration that regulations 3(1) and 21 of LI 239 were inconsistent with article 21(1)(e) of the 1992 Constitution , which provides for freedom of association, and were therefore null and void.

At the time of instituting the present action at the Supreme Court, there was a pending appeal at the Court of Appeal from the judgement of the High Court in an action for the enforcement of the plaintiffs’ rights to freedom of association.

Issues:

1. Whether or not the Supreme Court has jurisdiction to entertain the present action, considering that the plaintiffs initiated an unsuccessful action in the High Court for the same reliefs against which an appeal is pending at the Court of Appeal.
2. Whether or not regulations 3(1) and 21 of LI 239 are inconsistent with the letter and spirit of the 1992 Constitution of Ghana and therefore null and void

Arguments of the plaintiffs:

1. They are entitled as citizens to distil and retail akpeteshie without being members of any distiller’s cooperative, as required by regulation 3(1) of LI 239.
2. That they cannot be compelled to dispose of their products exclusively to the cooperative society, as required by regulation 21 of LI 239.
3. Despite them instituting an unsuccessful action in the High Court and the pending appeal at the Court of Appeal, the Supreme Court still has the jurisdiction to entertain this action because article 33(1) of the 1992 Constitution, which gives the High Court jurisdiction in human rights cases, also makes it possible for a party to resort to "any other action that is lawfully available". In the present case, resorting to the Supreme Court for a declaration that regulations 3(1) and 21 of LI 239 constitute a lawfully available action as it is only the Supreme Court that can make such declarations.
4. Article 21(1)(e) of the 1992 Constitution guarantees freedom of association, and to require or demand that one belong to a co-operative society before one is permitted to carry on one’s trade of distilling akpeteshie, according to the plaintiffs, is an unnecessary restriction on one’s freedom to form or join an association of one’s choice.

Arguments of the Defendants:

1. Raised a preliminary objection that the plaintiffs had earlier brought an action in the High Court, which ruled against them, so they cannot bring the same action to the Supreme Court and re-argue the same reliefs.
2. That this case is a human rights issue, and by virtue of article 130(1), the original jurisdiction of the Supreme Court is subject to the jurisdiction of the High Court in the enforcement of human rights.
3. That the entirety of LI 239 and the restrictions contained in regulations 3 and 21 thereof are necessary for the protection of public health and control of the government’s economic policy.
4. The restrictions in regulations 3 and 21 of LI 239 are an exercise of the executive power of the state pursuant to article 58(2) of the 1992 Constitution to regulate economic activities in the overall interest of the nation and are therefore consistent with the Constitution.
5. Article 24(4) of the 1992 Constitutionallows for the placing of restrictions on individual freedoms when such restrictions are necessary in the interest of national security, public order, or the protection of the rights and freedoms of others.
6. That the freedom of association mentioned in article 21(1)(e) of the 1992 Constitution relates to political activity and not to economic activity.

Holdings:

1. The Supreme Court has jurisdiction to entertain any action challenging the Constitutionality of any enactment or exercise of governmental power, and accordingly, it has jurisdiction to entertain the present action.
2. Only regulation 3(1) of LI 239 is inconsistent with article 21(1)(e) of the 1992 Constitution and is therefore null and void. Regulation 21 , however, is not inconsistent with the Constitution.

Ratio Decidendi:

On the first issue, the Court noted that while the action before the High Court was for the enforcement of the plaintiffs’ human rights, the action before the Supreme Court presently is one for the interpretation and a declaration that regulations 3(1) and 21 of LI 239 are inconsistent with the 1992 Constitution. This issue of Constitutionality is not the same issue that was raised and resolved by the High Court, as that Court has no jurisdiction to grant such reliefs.

Also, the fact that the High Court has jurisdiction over the enforcement of human rights does not mean that a party cannot invoke the original jurisdiction of the Supreme Court to declare unconstitutional any provision that goes contrary to the human rights provisions of the 1992 Constitution. In the words of Bamford Addo JSC,

the clear meaning of article 33(1) of the Constitution, 1992 is that a party who chooses to seek the enforcement of his fundamental human rights at the High Court, may also apply to any other court for other reliefs, even if on the same facts, lawfully available to him. In this case even though the plaintiffs have already applied to the High Court for the enforcement of their fundamental human rights they are entitled to apply to this court for a declaration that regulations 3(1) and 21 of LI 239 are unconstitutional and therefore null and void, because this is another relief open to them, especially when the High Court had no jurisdiction to grant that relief in respect of regulation 3(1) of LI 239 anyway.

Accordingly, the Supreme Court has the jurisdiction to entertain the present action and is the only court with such jurisdiction.

On the second issue, and in a 3-2 split, Acquah JSC, as part of the majority, noted that whenever an action is instituted in the Supreme Court for a declaration that a law is inconsistent with the 1992 Constitution, the duty of the Court is twofold. First, the Supreme Court must determine if, based on the language of the alleged Constitutional provision, the law is indeed inconsistent with that Constitutional provision. If it is not, then the applicant fails in his challenge. Having satisfied itself that the law complained of is indeed inconsistent with the Constitutional provision, the second step is

to determine whether notwithstanding the inconsistency on the face of it, the law can be justified on any of the limitations or provisions of the Constitution, 1992. If the law can be justified, then the law is Constitutional and the applicant’s action is dismissed. But if the law cannot be justified on any of the provisions of the Constitution, 1992 then that law is inconsistent with the letter and spirit of the Constitution, 1992 and consequently null and void [@31]

The provision in article 21(1)(e) on the freedom of association also invariably includes the right to refrain from associating with people with whom one does not wish to associate, and any law that seeks to force an individual to associate with others with whom he does not wish to associate, erodes the freedom of association. Accordingly, the provision in regulation 3(1) of LI 239 that requires that distillers of akpeteshie be part of a cooperative union is, on the face of it, contrary to the freedom of association provided for in article 21(1)(e) of the 1992 Constitution.

However, the justices agreed that rights and freedoms, including the freedom of association contained in article 21(1)(e) , are not absolute and are subject to other Constitutional provisions. In the words of Acquah JSC,

The fundamental human rights and freedoms including that of association enshrined in chapter 5 of the Constitution, 1992 can certainly not be absolute, otherwise society will be in chaos, as each individual will strive to assert his full right. For as Aristotle stated in The Politics: "Man when perfected is, the best of animals, but if he be isolated from law and justice, he is the worst of all." To secure these rights and freedoms therefore, it is essential that there must be some machinery or safeguard to prevent the exercise of these rights degenerating into licence, and also to organise the relations between one individual and another without which the life of the individual becomes "solitary, poor, nasty, brutish and short." Thus article 12(2) of the Constitution, 1992 provides that these rights and freedoms are "subject to respect for the rights and freedoms of others and for the public interest

The question now to be answered was whether the restrictions being placed on the plaintiffs’ right to freedom of association were justifiable within the provisions of the 1992 Constitution, primarily because such restrictions were necessary for the public's interest and health.

In answering the above question, Bamford Addo JSC and Kpegah JSC believed that the need to be part of a cooperative society was necessary to enable effective monitoring of the mode of production and the quality of the akpeteshie produced in the interest of public health. They submitted that under the 1992 Constitution,

the general public interest is paramount and is to be considered above private economic interest. Therefore, any laws meant to safeguard such public interest cannot be judicially overridden by the courts when the Constitution, 1992 itself permits such laws in article 21(4)(c) though of course on certain conditions.

However, majority of the justices believed that membership in a cooperative society did not contribute in any way to ensuring that the akpeteshie produced was wholesome for public consumption. The first reason for this position was that the objective of a registered cooperative society is often to promote the economic interests of its members, and not the health, safety, and security of the consuming public, as alleged by the defendants. Secondly, and more importantly, the idea that the plaintiffs must be part of a cooperative society before they can be adequately regulated was unfounded. The justices noted that the state has various organs for checking all economic activities in the country, amongst which is the National Standard Board, which controls the quality of imported and locally manufactured goods. Acquah JSC noted:

With the existence of all these organs, I do not see the necessity for requiring an individual or association to join another association before it could obtain a licence to carry out its trade, particularly, when it has not been demonstrated satisfactorily that the other association has the machinery or a better form of machinery for checking or controlling the mischief which the Act or legislative instrument is presumed to avoid.

In addition to these state organs, other provisions in LI 239 and in the Liquor Licensing Act, 1970 (Act 331) adequately provided for the monitoring and control of anyone involved in the production of akpeteshie. For instance, Act 331 mandates inspectors and police officers in uniform to enter and inspect a distillery in respect of which a distiller’s, licence has been granted. Regulations 13, 14, 15, 16, and 17 of LI 239 regulate the locality and construction of a distillery, the specification for the vessels and plant, and the materials used in the production of spirits, inter alia.

The court also noted the discriminatory nature of regulation 3(1), which sought to target only producers of akpeteshie, even though these producers are not the only manufacturers of consumable products that may pose health hazards. There are chop-bars, meat-sellers, palm-wine sellers, kenkey-sellers, all of whom do not need to be members of cooperative societies before selling their produce.

Regulation 21 of LI 239, however, was not inconsistent with the freedom of association since the distiller has a whole array of distillers placed under the Ordinance for him to select whoever he wishes to sell his products to.

Other essential principles:

Some principles:

1. Rights are not absolute:

The Constitution, 1992 itself makes it abundantly clear that the enjoyment of the fundamental human rights and freedoms is not absolute but subject to the rights of others: see article 12(2) of the Constitution, 1992 which stipulates that the enjoyment of rights is "subject to respect for the rights and freedoms of others and for the public interest." It should be noted that the exercise of rights naturally calls for the observance of duties. So that one cannot enjoy his rights, if in doing so, he interferes with the rights of his fellow beings, that is why rights go with obligations: see articles 41 and 12(2) of the Constitution, 1992 [per Bamford JSC]

2. Guide to Interpretation:

In construing instruments, you must have regard, not to the prescribed intention of the parties or the framers but to the meaning of the words which they have used. "One must consider the meaning of the words used, not what one may guess to be the intention of the parties" per Jessel MR in Smith v Lucas (1831) 18 ChD 531 at 342. A statute should be construed in a manner to carry out the intention of the legislature.

It may reasonably be asked—How is the intention of the legislature to be discovered? First, from the words of the statute itself. If plain, they will indicate either directly or impliedly the intention with which the statute was passed and the object to be attained by it. Secondly, if the words are ambiguous, the policy of the legislature and the scope and object of the statute, where these can be discovered, will show the intention which may further be brought to light by applying the various rules and presumptions of construction.

…Thus, the construction adopted if possible, should be in accordance with the policy and object of the statute in question, and this must be confined to cases in which the policy and object of the legislature are clear from the statute itself though the words may be ambiguous. The danger of these rules concerning "intention", "object", "policy" and so on, is that they may open the door to individual bias or opinion or result in guessing at the intention…

3. Freedom of association must be to promote legitimate interests:

An association with criminal objects, e.g., to commit murders or thefts would be illegal; there is no legal liberty to form such a body; its existence would not be recognised and no rights of members would be enforced. Accordingly, the objects for which freedom of association can be exercised and recognised must be those which are legitimate, legal and not contrary to public policy. The right to association means the right to have others, with whom one has a common interest, associate with, to achieve a legitimate goal.

4. Constitutionalism:

It can certainly not be doubted that the executive has power to regulate the economic activities of the nation for the public good. But the exercise of this power, like the individual’s exercise of his fundamental rights and freedoms, are all products of the Constitution, 1992 and both must therefore be exercised within the limits of the Constitution. Neither is vested with a limitless power. Accordingly, the exercise of the executive power must be such as not to unduly erode these rights and freedoms. The executive power must be exercised in such a way as to maintain the equilibrium between the enjoyment of the individual’s rights and freedoms and the preservation of law, order and welfare of the public.