BAMFORD-ADDO JSC: The plaintiffs invoked the original jurisdiction of the Supreme Court under article 2(1) of the Constitution, 1992 seeking the following reliefs:
"(a) A declaration that sections 3(1) and 21 of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239) are inconsistent with the letter and spirit of the Constitution, 1992 and therefore null and void.
(b) An order setting aside sections 3(1) and 21 of LI 239 as being inconsistent with the letter and spirit of the Constitution, 1992 of the Republic of Ghana.
(c) An order of perpetual injunction restraining the defendants, their agents or servants or assigns under the pretext of acting under sections 3(1) and 21 of LI 239 from doing anything to prevent the plaintiffs from distilling and retailing local gin (akpeteshie).
(d) An order of perpetual injunction restraining the second and third respondents from in any way doing anything to prevent the third plaintiff from including in its objects the distillation and retail of akpeteshie."
The facts of this case briefly are that the first and second plaintiffs were members of the Egyaa Co-operative Distillery Retailers Society. On 8 October 1993 they, together with others, took a decision to withdraw their membership of the said society and after sending a petition to that effect proceeded to form a company, namely the third plaintiff company known as Egyaaman Distilleries Ltd. Among the objects of the said third plaintiff company was the manufacture of akpeteshie. According to the plaintiffs, while engaged in the distilling enterprise, the second and third defendants' agents with the assistance of the police, started to harass them by impounding their products namely akpeteshie, on the ground that the plaintiffs are not members of a registered distillers co-operative society and they cannot by virtue of regulations 3(1) and 21 of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239) distil and sell akpeteshie. The Registrar-General also advised the plaintiffs to amend the objects of the third plaintiff-company to exclude the manufacture of akpeteshie by a resolution passed by the said company which they did. They have applied to this court under article 2(1) of the Constitution, 1992 for a declaration that regulations 3 and 21 of LI 239 offend against article 21(1)(e), 36(1)(2)(a) and (b) and (6) and 37(1)(a) and (2)(a) of the Constitution, 1992 and are null and void. It is the contention of the plaintiffs that whether as individuals or a group, they are entitled as citizens to distil 'and retail akpeteshie without necessarily being members of any distillers' co-operative, nor is it right for them to be compelled to dispose of their products exclusively to the co-operative society.
The defendants took a preliminary objection, namely that:
"(1) Having brought the issue of breach of their fundamental human right of association before the High Court which ruled against them, the plaintiffs are not entitled to re-argue the same reliefs in the Supreme Court by invoking the original jurisdiction of the court.
(2) That the plaintiff cannot invoke the original jurisdiction of the Supreme Court under article 130 of the Constitution, 1992 where an appeal from a judgment of the High Court for the same or substantially the same relief is pending at the Court of Appeal.
(3) That the plaintiff has no cause of action at law for their claim herein. The defendants argued that by article 130(1) of the Constitution, 1992 the original jurisdiction of the Supreme Court is subject to the jurisdiction of the High Court in the enforcement of the fundamental human rights and freedoms as provided in article 33 of the Constitution, 1992."
According to the defendants the plaintiffs are precluded from invoking the original jurisdiction of this court because the application before the High Court in respect of which there is an appeal pending before the Court of Appeal, was for "the same or substantially the same reliefs." The matter which went before the High Court, Cape Coast was for:
"(a) A writ of prohibition to issue restraining the respondents their agents or servants or assigns from in any way doing anything to prevent the applicants from amending their objects to include the distillation or retailing of local gin (akpeteshie).
(b) For an order restraining the respondents from doing anything to prevent the applicants from distilling and retailing local gin (akpeteshie).
(c) For an order declaring regulation 3(1) of LI 239 null and void to the extent that it contradicts article 21(e) of the Constitution, 1992 of the Republic of Ghana."
To that motion, the defendant herein raised the preliminary objection to the effect that the High Court, Cape Coast had no jurisdiction to determine the issue of the constitutionality of regulation 3 of LI 239. Counsel for the applicants conceded the point and accordingly, relief (c) was withdrawn. That issue was not therefore part of the issues decided by the High Court against which an appeal is pending at the Court of Appeal.
The plaintiffs herein referred us to article 33(1) of the Constitution, 1992 which states:
"33. (1) Where a person alleges that a provision of this Constitution on the fundamental human rights and freedoms has been, or is being or is likely to be contravened in relation to him then, without prejudice to any other action that is lawfully available that person may apply to the High Court for redress."
(The emphasis is mine.)
It was submitted that this provision makes it possible for a party in addition to seeking redress at the High Court for enforcement of ones fundamental human rights under the Constitution to also resort to "any other action that is lawfully available.”
The present action is for the interpretation and a declaration that regulation 3(1) and 21 of LI 239 are inconsistent with the Constitution, 1992 and are therefore null and void. The issue of the constitutionality of regulation 21 of LI 239 was not even raised before the High Court, Cape Coast, only that of regulation 3(1) of LI 239 was, and since that issue of interpretation of regulation 3(1) of LI 239 was also withdrawn at the High Court, it cannot be said that that same issue was decided by the said High Court. It can be seen therefore that the issues before this court cannot be the same or substantially the same as that decided by the High Court, nor that the appeal pending at the Court of Appeal is of the same substance as this present case. Further, 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. True the High Court could have referred that issue to this court, but this was not done, rather the plaintiffs withdrew the matter from the High Court and applied to the Supreme Court for relief (a) above which they are perfectly entitled to do, in view of article 33(1) of the Constitution, 1992 and irrespective of the pending appeal at the Court of Appeal.
For these reasons, I would dismiss the preliminary objection and proceed with the merits of this case. After a careful reading of LI 239, my view is that, that law is an economic regulation dealing with the industrial production, sale, and payment of taxes on spirits, including akpeteshie. The issue for determination is whether or not regulations 3(1) and 21 of LI 239 are null and void as being inconsistent with the Constitution, 1992. I would in the course of this judgment refer to certain pertinent enactments which I would rely on in deciding this case.
The Liquor Licensing Act, 1970 (Act 331) deals with the manufacture, sale, distribution and consumption of spirits including akpeteshie. Sections 1 (1) and (2), 3 and 6 of Act 331 state:
"1. (1) No person shall manufacture or commence to manufacture spirits except under and in accordance with a distiller's licence.
(2) The Minister responsible for Finance may, after consultation with the Minister, by executive instrument direct that any distiller or group of distillers of refined spirits nominated in the instrument be placed under the control of the Excise Ordinance, 1953 (No 31).
2. (1) An Inspector may enter at any time any premises in respect of which a distiller's licence is in force.
(2) Any police officer in uniform may enter at any time any premises on which he has reasonable grounds to suspect that spirits have been or are being manufactured in contravention of this Act.
(3) A person empowered to enter premises under this section may-
(a) inspect the premises and any still, spirits or other articles therein;
(b) require any person on the premises to give any information in his possession as to the activities carried on in the premises and the person by whom they are carried on;
(c) take away any sample not exceeding one third of a pint from any container of a liquid found on premises.
3. (1) The Minister may by legislative instrument make regulations-
(a) for the issue of distillers' licences by the Minister, and the conditions attached to and duration of such licences;
(b) for the method of collection of the fees payable therefore;
(c) designating persons to act as Inspector for the purposes of section 2;
(d) altering or revoking the fees set out in the First Schedule;
(e) otherwise for carrying out the principles and purposes of this Part.
(f) for materials and apparatus for distilling akpeteshie;
(g) for the storage of akpcteshie for purposes of maturity.
(2) Regulations made under this section may authorise the inclusion in a distiller's licence of a condition requiring that spirits manufactured under the licence be offered for sale to any statutory corporation or other person named for that purpose in the regulations ....
6. (1) No person shall sell akpeteshie under any spirit licence unless the licence is expressly endorsed to authorise the licensee to sell akpeteshie.
(2) A spirit licence may be limited to the sale of akpeteshie.
(3) No spirit licence shall be required for the sale of akpeteshie to any statutory corporation or other person prescribed by regulations.
(4) A distiller of refined spirit shall have a first option on the purchase of all products of a distiller of akpeteshie.
(5) The rate per gallon of the duty payable on akpeteshie produced shall be that set out in the Third Schedule:
Provided that no duty shall be payable on the sale by a manufacture of akpeteshie of his products to a manufacturer of refined spirit."
Section 10 of Act 331 authorises the minister to make regulations by legislative instrument for prescribing the procedure for the grant of a licence and rules relating to the payment of duty on akpeteshie and the method of collection of such duty, etc. The regulations referred to is LI 239 which was saved under section 23(2) of Act 331. Regulations 3(1) and 21 of LI 239 are the provisions which the plaintiffs complain interfere with their freedom of association under article 21(e) of the Constitution, 1992.
It is to be noted that no law compels anyone to choose the occupation of manufacturing spirits in commercial quantities, but when this occupation is freely chosen, such a distiller has to comply with the rules and regulations governing the industry. The rules and regulations in LI 239 sum up government policy concerning the manufacture and sale of spirits in this country and this is permitted under the state power to regulate and control the economy, to ensure that the national economy is managed in such a manner as to maximise the rate of economic development, as well as to ensure the maximum welfare and happiness of every person in Ghana: see the provisions of article 36 of the Constitution, 1992. Manufacturers of spirits are therefore bound to comply with the provisions of regulations 3(1) and 21 of LI 239 if they choose to enter the distilling industry in this country, since these regulations are required in the public interest. 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.
The right of freedom of association under article 21(e) of the Constitution, 1992 includes also the freedom to form or join trade unions or other trade associations, national or international, for the protection and promotion of the specific interests of the members. It is with this objective that the provisions of section 2 of the Cooperative Societies Decree, 1968 (NLCD 252) as well as regulation 3(1) of LI 239 should be viewed. Persons desirous of obtaining a distiller's licence are required to be members of a registered distillers' co-operative society under regulations 3(1) of LI 239. I shall endeavour to unearth the purpose for this requirement in regulations 3(1) and 21 of LI 239 in the course of this judgment.
They are for the protection of the members of the distillers' society and also for the protection of the public health in the greater public interest and for effective collection of taxes on the sales of akpeteshie. The processing and distillation of akpeteshie was forbidden in this country by certain laws until December 1959 when the Spirits (Distillation and Licensing) Bill was passed in Parliament and received the royal assent on 22 December 1959. According to the Minister of Presidential Affairs of the time, the purpose of the bill was to legalise the distillation, sale of same and taxation on locally made gin, that is to say akpeteshie. Provision was made under section 1 (2) for the said Act to be brought into force on a specified date by order of the Governor-General. This order was never made and the said Act never came into force. The 1959 Act in section 4 thereof required the formation of the Ghana Association of Alcohol Distillers, and it took time to form that association and this is said to have contributed to the non-making of the order to bring it into force, since it was essential to have one recognised body with whom the government could deal with in regard to the licensing of distillers.
Then when Ghana became a Republic it was recognised that certain amendments to the 1959 Act had to be made before it could be brought into operation. Accordingly, a new bill, The Akpeteshie Bill was prepared which was presented to Parliament. On 24 July 1961 during the second reading of the Akpeteshie Bill by the Hon Minister for Presidential Affairs (Mr AEA Ofori Atta) he had this to say, which sums up government policy on the Akpeteshie Bill which was passed into law in 1961: see the Akpeteshie Act, 1961 (Act 77):
"The Akpeteshie Bill
Minister Responsible for Presidential Affairs (Mr. A.E.A Ofori Atta): I beg to move, That the Akpeteshie Bill be now read a Second time. Hon. Members will recall that in December, 1959, the Spirits (Distillation and Licensing) Bill was passed by this House and received the royal assent on the 22nd December, 1959. The purpose of the Bill was to legalise the distillation, sale and taxation of locally made gin, that is to say, akpeteshie, and provision was made under section 1 (2) for the Act to be brought into force on a specified date by the order of the Governor-General ... The principle in the new Bill follows closely those outlined when the Spirits (Distillation and Licensing) Act was introduced in this House on 7th December, 1959. It provides for the distillation and sale and taxation of akpeteshie in Ghana, and for the making of regulations by Legislative Instrument for the proper and efficient conduct of the industry. It gives full recognition to the Ghana Co-operative Association of Alcohol Distillers, which has branches organized in towns and villages throughout the country, as the body through whom Government will work for the control of the akpeteshie industry.
Clause 1 provides a definition of akpeteshie for the first time. This is essential in connection with any case which may be taken to the courts, arising from the operation of the law.
Clause 2 provides that no one may, if this Bill becomes law, manufacture akpeteshie, except under licence. With the object of effectively controlling the manufacture of wholesome akpeteshie, it is intended to issue licences only to persons who are members of the Distillers' Co-operatives and in respect of stills being operated hygienically.
Clause 3 of the Bill provides for the inspection of akpeteshie stills. In order to ensure the attainment of the object I have just mentioned it is proposed to provide by regulation both for the inspection of stills before they are licensed and during the period of validity of licences.
Clause 4 provides for penalties for any acts done in contravention of the provisions of the law. To manufacture akpeteshie without licence or to refuse inspection of stills or process of manufacture of akpeteshie renders the person concerned liable to a fine not exceeding £G200 and the confiscation of any apparatus and spirits in respect of which an offence is committed.
Clause 5 relates to the sale of akpeteshie to the Ghana Distilleries for refining and the collection of duty on such akpeteshie. In this connection I should like to state that it is the intention of the Government that in due course all akpeteshie manufactured locally should be rectified, that is to say, be made to undergo a multiple process of distillation and so become wholly refined before it is offered for sale. At present the capacity of the Ghana Distilleries to take akpeteshie for rectification is about 500,000 gallons per annum, which is believed to be only a tenth of the total gallonage of akpeteshie produced a year.
Clause 6 provides for the issue of two sets of licences. One for distillers to enable them to sell to wholesalers, and one for wholesalers to enable them to sell to consumers. Both licences are obtainable at £G5 per year and £G2 10 per half year. No licence is required for sale to the Ghana Distilleries; such sales will be regulated under the Regulations to be made and it is intended that for the sake of convenience distillers with addresses near the Ghana Distilleries will be required to offer all or part of their production to the Ghana Distilleries up to the capacity of the Government owned plant.
Clause 7 empowers the President, who assumed responsibility for industries when Ghana became a Republic, to make the regulations necessary for the purposes of this Bill. By clauses 8 and 9 provision made for the collection of excise duty on akpeteshie has been abolished and in consequence, the laws relating to the said duty repealed. It is considered much more convenient to achieve the object of the excise duty by introducing a fee in respect of the licence for the manufacture of akpeteshie and a tax which will be paid by only one body, namely, the Ghana Distilleries. Other additional revenue will of course be obtainable from licences for the sale of akpeteshie which both distillers and wholesalers are required to take out.
Mr. Speaker, this Bill will, I trust, be acclaimed by all hon. Members as a bold and imaginative attempt on the part of the Government to put on a sound basis, and to provide the conditions for development into a respectable means of earning a livelihood, an industry which has been operated in this country for upwards of forty years in devious illegal ways. On behalf of our resourceful leader, Osagyefo Dr. Kwame Nkrumah, I would state that as soon as possible after this Bill has become law, there will be published the Regulations necessary to achieve this laudable end of establishing firmly a legal activity in which none would be ashamed to participate. I beg to move."
(The emphasis is mine.)
Both the minister's speech as well as the debate on this bill show clearly that as intended by the government, Act 77 was passed to ensure that the quality of the distilled akpetehise was wholesome for public consumption to protect public health, and for efficient collection of taxes etc: see especially sections 2(1) and (2), 4(1) and (2) and 5(1) and (2) of Act 77, which provided:
"2.(1) No person shall manufacture akpeteshie except under and in accordance with a licence granted under this section (in this Act referred to as a distiller's licence.
(2) Regulations may provide for the issue, conditions and duration of distiller's licences, and may authorise the inclusion in a distiller's licence of a condition requiring akpeteshie manufactured under the licence to be offered for sale to the Industrial Development Corporation or any subsidiary thereof ...
4. (1) An act done in contravention of the preceding provisions of this Act, or of the conditions included in a distiller's licence, shall constitute an offence punishable by a fine not exceeding £G200 and by the confiscation of any apparatus and spirits in relation to which the offence was committed.
(2) In proceedings under this section a document purporting to state the results of an analysis carried out by direction of the Chief Medical Officer shall be prima facie evidence of the facts stated therein.
5.(1) A tax at such rate per gallon as may be prescribed by regulations is hereby charged on all akpeteshie sold to the Industrial Development Corporation or any of its subsidiaries on or after 1st July, 1961, and shall be payable by the Corporation.
(2) Within one month after the end of each financial year the Corporation shall pay to the Accountant-General the amount of the tax due under this section in respect of the financial year."
Section 7 of Act 77 gave power for making of regulations for purposes under the Act and the Akpeteshie Regulations, 1962 (LI 170) was passed to regulate the manufacture and sale of akpeteshie. Regulation 1 of LI 170 sets out the procedure for application for the licence required under section 2 of Act 77 Regulation 1 of LI 170 states:
"1. (1) An applicant for a distiller's licence shall send three copies of his application in the form specified in the Schedule to these Regulations, together with the licence fee, to the Chief Industrial Promotion Officer.
(2) The Chief Industrial Promotion Officer shall forthwith transmit one of the copies to the Manager of the Ghana Distilleries Limited and another to the Secretary of the Ghana Co-operative Association of Alcohol of Distillers
(3) On receipt of his copy of the application, the Secretary shall ascertain whether or not the applicant is a member of an akpeteshie distillers' co-operative and is a proper person to be granted a distiller's licence, and shall report accordingly to the Chief Industrial Promotion Officer.
4. (1) After considering the reports of the Manager and the Secretary and such other matters (if any) as appear to him to be material, the Chief Industrial Promotion Officer shall, as he thinks fit, either issue the licence in the form specified in the Schedule to these Regulations or notify the applicant that the application is rejected but that he has a right-of appeal under Regulation 7 ...
(10) The rate of tax charged under section 5 of the Akpeteshie Act, 1961(Act77) shall be four shillings per gallon."
(The emphasis is mine.)
Under LI 170 three application forms are required: one each to be sent to the Chief Industrial Promotion Officer, the manager of Ghana Distilleries Ltd and the secretary of the Ghana Co-operative Association of Alcohol Distilleries. The manager of the Ghana Distilleries would then inspect the stills and report to the Chief Industrial Promotion Officer. Under section 3 the secretary of the Ghana Co-operative Association of Alcohol Distilleries shall ascertain whether or not the applicant is a member of an akpeteshie distillers' co-operative and is a proper person to be granted a distiller's licence and report to the industrial promotion officer to this effect before, if he thinks fit, the latter officer would issue a licence to the applicant, at a fee.
The stringent conditions under the distillers' licences are all designed to ensure the wholesomeness of the distilled akpeteshie for human consumption in the interest of public health. It also shows that the government policy was to tie up the distillation industry with the co-operative movement for efficient monitoring as succinctly stated by the Hon Minister Ofori-Atta, namely:
"The principles in the new Bill ... provides for the distillation and sale and taxation of akpeteshie in Ghana, and for the making of regulations by Legislative Instrument for the proper and efficient conduct of the industry. It gives full recognition to the Ghana Co-operative Association of Alcohol Distillers, which has branches organised in towns and villages throughout the country as the body through whom the Government will work for the control of the akpeteshie industry."
(The emphasis is mine.)
The tax to be levied on the buyers of the distilled akpeteshie is specified in section 5 of Act 77. See also regulation 10 of LI 170 which refers to tax on akpeteshie sold to the Industrial Development Corporation, which body pays taxes straight to the government through the Accountant-General. The relevant sections, I have referred to above in Act 77, were repeated to the same effect in the Manufacture and Sale of Spirits Act, 1962 (Act 154) which repealed Act 77, and 239 which by necessary implication repealed LI 170. LI 239 was the regulations made under section 16 of Act 154. Act 154, section 1 corresponds with section 2 of Act 77 and regulations 1, 2, 3 and 4 of LI 170. Section 2 of Act 154 corresponds with section 5 and 2(2) of Act 77 as well as with regulation 10 of LI 170.
In 1970 the Liquor Licensing Act, 1970 (Act 331) was passed repealing Act 154 in section 23(1), but saving LI 239 in section 23(2) thereof. Act 331, ss 1 and 2(2) repeat the requirement for obtaining a distiller's licence already referred to above in all preceding enactments, as well as the sale of the akpeteshie to the statutory corporation and other persons named for that purpose in these enactments. These are now contained in LI 239 and the relevant sections are regulations 3(1) and 21 thereof.
The policy of the government in respect of the distilling industry is what I have endeavoured to unearth and to state above, which policy is clearly apparant in Act 331 and LI 239 under consideration in this case. It can be seen that government policy in the 1959 Act which was never brought into effect, is the same as that contained in Act 77, Act 154, and Act 331 as well as in LI 239. Under article 21(e) of the Constitution, 1992 all persons have freedom of association, including freedom to form or join trade unions of their choice. Regulation 3(1) of LI 239 does not compel anyone to join the distillers' co-operatives, but when distillers freely choose the distilling industry as their occupation, namely the manufacture of akpeteshie, then they are required to obtain a distiller's licence under regulation 3(1) of LI 239. To obtain this licence the applicant must fulfil certain conditions, eg the applicant must be a member of a registered distillers' co-operative society, ie a society registered under NLCD 252 s 2.
Section 2 of NLCD 252 states:
"2. Subject to the provisions of this Decree, any society which has as its object the promotion of the economic interest of its members in accordance with co-operative principles, may be registered under this Decree with or without limited liability."
(The emphasis is mine.)
A registered society has privileges under NLCD 252 and these include the power to make bye-laws, imposition of fines on members, grant of loans to members, provision of government assistance including financial assistance, power to invest funds by a registered society, payment of dividends to members, exemption from certain duties and fees, etc. All these benefits are geared to the promotion of the economic interests of members of a registered society, like a co-operative distillers' society, which may register under NLCD 252 in order to obtain a distillers' licence as specified in regulation 3(1) of LI 239, itself authorised by Act 331. It is to be noted that section 2 of NLCD 252 is permissive not mandatory and does not compel registration but in the case of distillers of spirits it is a requirement under regulation 3(1) of LI 239, for obtaining of the necessary licence to distill, that an applicant must be a member of a registered distillers' co-operative. This is to enable effective monitoring of the mode of production and the quality of the spirit produced in the interest of public health-a government economic policy, the licence contains certain conditions including the correct apparatus and proper materials to be used to produce spirits, to ensure that only wholesome and good quality spirit is produced. Considering the potential dangerous effect on consumers of unwholesome akpeteshie, it seems to me that it is necessary to ensure the quality of akpeteshie. Therefore, regulation 3(1) of LI 239 is not only desirable but most reasonable in the interest of public health. In the Constitution, 1992 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. It is my opinion that under the Constitution, 1992 itself the government, is entitled to adopt any economic policies which are reasonable to maximise economic development and to promote public welfare. To ensure that such policies are effected, government is empowered to enact legislation adapted for that purpose.
It is for this reason, that when government policies are declared in an enactment they should not be overridden by the courts provided that those laws have a reasonable relation to the proper legislative purpose, are not discriminatory and are within the spirit of the Constitution, 1992. The American case of Munn v. Illinois, 94 US 113 (1871) is commonly viewed as a symbol of judicial deference to legislative judgments, it at the same time suggests potential limits on legislative power. In that case, the court rejected an attack on a state law regulating the rates of grain elevators. Chief Justice Waite's majority opinion emphasised that the police power of the State included regulations of individual use of property "when such regulation becomes necessary for the public good." Chief Justice Waite added:
"We know that this is a power which may be abused; but that is no argument against its existence ... "
It is conceded that the government has power to make regulatory laws respecting trade, industry and commerce when the public interest so demands. This view is supported in the Constitution, 1992 in article 21(4)(c). There is no doubt that upon the proper occasion and by appropriate measures, the State may regulate a business in any of its aspects, including the mode of manufacture to ensure the wholesomeness of the end product by imposition of necessary conditions such as contained in regulations like LI 239. The State can also regulate the prices to be charged for the products or commodities as well as prescribe the mode of sale and the imposition of taxes on manufactured goods and method of collection of same. For this purpose, as stated above, the State is free to adopt whatever economic policy that may reasonably be deemed to promote public welfare and to enforce such public policy by legislation adapted to its purpose provided that the conditions stated above are satisfied. Even though the plaintiffs based their claim on article 21 (1)(e) of the Constitution, 1992 they surprisingly failed to take note of article 21(4)(c) thereof, which provides a complete answer to their complaint that regulations 3 and 21 of LI 239 are inconsistent with articles 21(e) and 37(2) of the Constitution, 1992 regarding the freedom to associate or join trade unions for the protection of the interest of members.
The provisions of article 2 1 (4)(c) of the Constitution, 1992 are clear and unequivocal as authorising such laws as Act 331 and LI 239. Regulation 3(1) of LI 239 deals with the qualification and conditions for obtaining a distiller's licence and regulation 21 is designed to facilitate the effective collection of taxes on the sale of akpeteshie. Regulation 3 of LI 239 provides that:
"3.(1) Every applicant for the issue of a distillers' licence shall be a member of a registered Distillers Co-operative.
(2) An application for the issue of such a licence shall be in the form set out in the First Schedule addressed to the District Commissioner of the district in which the spirits to which the licence applied for, relates are to be manufactured and shall be delivered by hand or by post to the office of such District Commissioner."
The form of application for a distiller's licence in the First Schedule relate to the following matters, namely:
(1) Name of applicant
(2) Address of applicant
(3) Address of premises to be licenced
(4) (a) Number of stills to be licenced
(b) Total capacity of stills in gallons
(5) Estimated total capacity of spirits per month.
(6) Ingredients used in manufacture of spirits
(7) Name of applicants co-operative society
(8) Number and date of applicants registration in the books of his co-operative society
(9) Particulars of any previous distillers' licence held.
It is after consideration of these matters that the application for a licence would be granted on payment of a fee for a period of one year renewable, or refused; which refusal is subject to appeal to the Minister whose decision shall be final: see regulations 14 to 17 of LI 239 which deal with apparatus and mode of distillation, especially regulation 17 thereof which states:
"No materials shall be used in the production of spirits unless such material are approved by the Minister who may prohibit the use of any material in such production."
It is evident from the provisions I have referred to above, that the purpose of requiring a licence under regulation 3(1) of LI 239 is to ensure the wholesomeness of the spirits produced in the interest of public health. I have stated that the policy of the government is to tie up the manufacture of spirits with the co-operative movement for the benefit of .the distillers and to permit effective monitoring of the end product, in this case akpeteshie, for quality. It can be seen that the policy of government has been consistent and runs through all laws, since 1961 as regards the distilling industry. LI 239, reg 3 qualifies section 2 of Act 331 in the requirement of an application for a distiller's licence by its provision that the applicant for a distiller's licence must be a member of a registered distillers' co-operative society; this regulation is intended to protect public health.
I now proceed with consideration of regulation 21 of LI 239.
The arguments advanced above in support of regulation 3(1) apply equally to regulation 21 and should result similarly. If regulation 21 of LI 239 is constitutional, then regulation 3(1) should also be constitutional and vice versa. This section is meant to ensure easy and effective collection of taxes. Regualtion 21 of LI 239 states:
"21. 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. 3J of 1953) in pursuance of the provision of section 2 of the Act."
(The emphasis is mine.)
The Excise Ordinance, 1953 (No 3 of 1953) mentioned in regulation 21 of LI 239 is an Ordinance to provide for the levying, and collection of excise duties on articles manufactured in the Gold Coast (now Ghana).
On regulation 21 of LI 239, the plaintiffs submitted that it is not right for distillers "to be compelled under section 2 of LI 239 to dispose of their products exclusively to the co-operative society." The plaintiff gave no reasons at all for this submission, nor did they state any injury to their proprietary interest as a result of regulation 21 of LI 239. Indeed, I see none. It seems to me from the implication of their submission on this point,that they are adverting to their right to enjoyment of property free from interference. If so, the answer is that property rights under article 18(2) of the Constitution, 1992 is subject to laws limiting the enjoyment of this right. Article 18(2) of the Constitution, 1992 provides:
"(2) No person shall be subjected to interference with ... property ... except in accordance with law and as may be necessary in a free and democratic society, for public safety or the economic well-being of the country, for the protection of health ... or for the protection of the rights or freedoms of others."
The purpose of regulation 21 of LI 239 is evident, namely for easy collection of taxes.
Having discovered the nature and purpose of regulations 3 and 21 of LI 239 it is left to find whether such laws are permissible under the Constitution, 1992. Article 21(e) of the Constitution, 1992 dealing with the freedom of association, including trade unions, limits this right in article 21(4)(c) of the Constitution, 1992 which is as follows:
"(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of this article to the extent that the law in question makes provision- ...
(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally or any class of persons ...
except so far as that provision or as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution. "
(The emphasis is mine.)
The impugned sections of LI 239, in my view, fall squarely within the category of laws permitted under articles 21(4)(c) and 18(2) of the Constitution, 1992 in the public interest, for protection of public health and public order. Therefore those two impugned provisions cannot be said to be inconsistent with the Constitution, 1992;' on the contrary, they are consistent with it. There is clear authority under the Constitution, 1992 for necessary regulatory enactments in the public interest, and tested by this consideration the plaintiff's challenge of the unconstitutionality of the two sections of LI 239 cannot be correct. As I said earlier on, regulation 3(1) is designed to protect public health and the interest of distillers, and regulation 21 is intended to facilitate the effective collection of taxes on spirits locally manufactured, considering that it is the duty of citizens to satisfy all tax obligations under article 41 (j) of the Constitution, 1992. It is also the duty of the President to take effective steps to implement sound economic policies for the establishment of a just and free society and in particular to ensure a healthy economy and the right to good health of all citizens. These constitutional duties and obligations provide the reason and necessity for the regulations complained of by the plaintiffs, and compel me to the conclusion that they are reasonable and justifiable. I find regulations 3(1) and 21 of LI 239 as being permissible economic regulatory laws within the spirit of the Constitution, '1992 by reason of the provisions of article 21(4)(c) and I so hold.
To hold otherwise, would be to prescribe the recipe for chaos in the distillation of akpeteshie industry, as well as other occupations which need to be regulated in the public interest, eg the medical profession. It would also amount to subordinating the general public interest to the private economic interest of a small group of people whose school of thought happens to be different from government policy. This is not to be taken as allowing any or all economic regulatory enactments, no, this is because they are subject to the limitations specified in the Constitution, 1992 which I have discussed above, and for this reason each case would depend on its merits.
In conclusion, I am of the firm opinion that in view of the provisions of articles 12, 21(4)(c), 24(3) and (4), 34, 36, 37 and 41(j) of the Constitution, 1992, regulations 3(1) and 21 of LI 239 far from being inconsistent with the constitution, are laws reasonably necessary and permitted by the Constitution, 1992 itself for the protection of public health and public order, and to ensure effective collection of taxes-all in the public interest. The impugned sections of LI 239 are reasonable, not discriminatory and are not only in the public interest but justified within the spirit of the Constitution, 1992.
It is for these reasons that I would dismiss the plaintiffs' claims and enter judgment for the defendants.
AMPIAH JSC: By their writ, the plaintiffs seek:
"(a) A declaration that sections 3(1) and 21 of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239) is inconsistent with the letter and spirit of the Constitution, 1992 and therefore null and void.
(b) An order setting aside sections 3(1) and 21 of LI 239 as being inconsistent with the letter and spirit of the Constitution, 1992 of the Republic of Ghana.
(c) An order of perpetual injunction restraining the defendants, their agents or servant or assigns under the pretext of acting under sections 3(1) and 21 of LI 239 from doing anything to prevent the plaintiffs from distilling and retailing local gin (akpeteshie)
(d) . An order of perpetual injunction restraining the second and third defendants from in anyway doing anything to prevent the third plaintiff from including in its objects the distillation and retail of akpeteshie."
The first and second plaintiffs represent former members of the Egyaa Co-operative Distillers/Retailers Society and the third plaintiff is a limited liability company registered under the laws of Ghana. The plaintiffs have as their business the distilling and retailing of akpeteshie, a locally manufactured gin.
On or about 18 October 1993, the group represented in this action by the first and second plaintiffs withdrew its membership of the Egyaa Co-operative Distillers Retailers Society and formed the third plaintiff-company for the purpose of more effectively carrying on their trade or business as distillers. This conduct of the plaintiffs provoked the second and third defendants to the extent that with the assistance of the police and other agents, the second and third defendants resorted to harassment of the plaintiffs by impounding their products (akpeteshie) on the grounds that without remaining with the defendants' society, they (the plaintiffs) could not either manufacture or sell akpeteshie. They (the defendants) relied on regulations 3(1) and 21 of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239).
LI 239 contains "regulations" and not "sections." "Sections" 3( 1) and 21 referred to in the declarations sought by the plaintiffs could only mean, from the evidence before us, regulations 3(1) and 21. I would accordingly amend the declarations and refer to these "sections" as "regulations" where necessary in my judgment.
The plaintiffs contend that regulations 3(1) and 21 of LI 239 are inconsistent with or in contravention of the provisions of the Constitution, 1992, particularly, articles 21(1)(e), 36(1)(a) and (b), and (6) and 37(1) and (2)(a). They argue that to the extent that regulation 3(1) of LI 239 restricts their right to manufacture akpeteshie unless they become members of a co-operative society and, regulation 21 of LI 239 compels them to sell their products only to specified persons or bodies, these provisions are inconsistent with article 21 (1)( e) of the Constitution, 1992 and are therefore null and void.
The defendants on the other hand contend that these restrictions are necessary for the protection of public health and control of the government's economic policy. In paragraph (10) of their statement of case, the first and second defendants say:
"(10) That the freedom of association guaranteed by the Constitution, 1992 does not extend to the management of the national economy which has been reserved to the executive and the legislature for public safety and health by the Constitution, 1992."
And in paragraph (10) also of the statement of case of the third defendant, he repeats the averment stating that:
"the object of sections 3(1) and 21 of LI 239 is to cater for the security, safety and public health of the consumers of the local gin (akpeteshie) and same is stated in article 24(4) of the Constitution, 1992."
I have ruled elsewhere in a previous judgment that the provisions of articles 34-41 of the Constitution, 1992 coming under chapter 6 (the Directive Principles of State Policy) are themselves not justiciable as they only serve as a guide in "applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society."-see New Patriotic Party v. Attorney-General [1997-98] 1 GLR 378, SC.
Regulation 3(1) of LI 239 provides,
"Every applicant for the issue of a distiller's licence shall be a member of a registered Distillers Co-operative."
And, regulation 21 of LI 239 provides:
"21. 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 provisions of section 2 of the Act."
Article 21(1)(e) of the Constitution, 1992 relied on by the plaintiffs however provides that:
"21. (1) All persons shall have the right to-
(e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest."
(The emphasis is mine.)
To require or demand that one should 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. Equally restrictive is the direction that the product of one's business should be sold only to some specified bodies or persons. In other words, without becoming members of a co-operative society, no licence would be issued to the plaintiffs to carryon with their business as distillers of spirits which by definition include akpeteshie. Consequently, the plaintiffs have sought the aid of this court to have those restrictive provisions of LI 239 declared null and void, and deleted from the statute books of Ghana.
The Constitution, 1992, art 1(2) provides that,
"This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void."
The defendants, however, contend that though restrictive, these provisions of LI 239 are permissive under the Constitution, 1992. They refer to articles 17(4)(a) and 21(4)(e) of the Constitution, 1992. Article 17(4)(a)and (5) of the Constitution, 1992 states:
"117.(4) Nothing in this article shall prevent Parliament from enacting laws that are reasonably necessary to provide-
(a) for the implementation of policies and programmes aimed at redressing social economic or educational imbalance in the Ghanaian society ...
(5) Nothing shall be taken to be inconsistent with this article which is allowed to be done under any provision of this Chapter [ ie chapter 5 of the Constitution]."
Further, article 21(4)(c) of the Constitution, 1992 provides:-
"21. (4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision- ...
(a) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health or the running of essential services, on the movement or residence within Ghana of any person or persons generally, or any class of persons;
except so far as that provision or as the case may be, the thing done under the authority of that law is shown not to be reasonably justifiable in terms of the spirit of this Constitution."
Therefore, unless the plaintiffs are able to show that regulations 3(1) and 21 of LI 239 could not be reasonably justifiable in terms of the spirit of the Constitution, 1992, they cannot complain that these provisions are inconsistent with or in contravention of the provisions of the Constitution, 1992.
As a guide to the interpretation of these provisions of LI 239, regard must be had to articles 36(1) and (2)(a) and (b) and 37(1) and (2)(a) of the Constitution, 1992 which state:-
"36. (1) The State shall take all necessary. action to ensure that the national economy is managed in such a manner as to maximize the rate of economic development and to secure the maximum welfare, freedom and happiness of every person in Ghana and to provide adequate means of livelihood and suitable employment and public assistance to the needy.
(2) The State shall, in particular, take all necessary steps to establish a sound and healthy economy whose underlying principles shall include-
(a) the guarantee of a fair and realistic remuneration for production and productivity in order to encourage continued production and higher productivity;
(b) affording ample opportunity for individual initiative and creativity in economic activities and fostering an enabling environment. for a pronounced role of the private sector in the economy ...
37. (1) The State shall endeavour to secure and protect a social order founded on the ideals and principles of freedom, equality, justice, probity and accountability as enshrined in chapter 5 of this Constitution; and in particular, the State shall direct its policy towards ensuring that every citizen has equality of rights, obligations and opportunities before the law.
(2) The State shall enact appropriate laws to assure-
(a) the enjoyment of rights of effective participation in development processes including rights of people to form their own associations free from state interference and to use them to promote and protect their interests in relation in development processes, rights of access to agencies and officials of the State necessary in order to realise effective participation in development processes; freedom to form organisations to engage in self-help and income generating projects and freedom to raise funds to support these activities."
LI 239 does not show on the face of it why an individual or an association should become a member of a co-operative society before a licence is issued to him or it for the manufacture of akpeteshie or for the sale of akpeteshie to particular persons or group . of persons or body. It is rather unfortunate that these legislative instruments are made by individuals or authorities who have to act under a parent Act passed by the peoples' accepted representatives. LI 239 was made under powers conferred on the Minister responsible for Industries by section 16 of the Manufacture and Sale of Spirits Act, 1962 (Act154) which parent Act was repealed by section 23(1) of the Liquor Licensing Act, 1970 (Act 331), section 23(2) of which saved all statutory instruments made under Act 154. Significantly, while Act 331 provides for the making of regulations for sale to specific bodies, of manufactured akpeteshie, there is no provision for regulating membership of co-operative society as a condition for obtaining a distillers's licence: see section 3(2) of Act 331. Thus, although there is some provision in the parent Act to regulate the sale of akpeteshie, there is no provision in the parent Act to regulate specifically the requirement of membership of a co-operative society as a condition for the issue of a distiller's licence. The question then arises whether a single minister can in making regulations under a parent Act, include provisions which the framers of the parent Act had not specifically authorised or intended.
Be that as it may, in the instant case, it cannot be said that the intention of the legislature is obvious on the face of the enactment. This has given rise to speculation! In an attempt to justify the restrictions contained in LI 239, it has been argued that these restrictions have been made to safeguard public interest, ie safety, health and the economy. Reference has been made to the history of the manufacture of akpeteshie and the dangers posed to public health; it is feared that if the manufacturing of akpeteshie is not controlled, the State would be in danger socially and economically.
The supposed object or intention of the legislature stated by the defendants does not appear on the face of the legislative instrument, neither is it ascertainable from the words used. It remains a speculation! As was stated in Salomon v. Salomon [1897] AC 22 at 38, HL:
"In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact either in express words or by reasonable and necessary implication."
Evershed MR in Prince Ernest of Hanover v. Attorney-General [1956] Ch 188 at 201 observed:
"As is stated in the first sentence of Maxwell on the 'Interpretation of Statutes' ... the fundamental rule of interpretation to which all others are subordinate, is that a statute is to be expounded 'according to the intent of them that made it'."
The meaning of a document and for that matter a statute is to be sought for in the document or statute itself; what a man intends and the expression of his intention are two different things. He is bound by his expressed intention. If that expressed intention is unfortunately different from what he really desires, so much the worse for those who wish the actual intention to prevail. The court cannot understand the true intent of the indenture (or statute) but only by the words of the indenture (or statute): see Kidder v. West (1684) 3 Lev 167. 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. "Intention of the legislature" has been described by a high authority as a "common but slippery phrase": see Salomon v. Salomon (supra) at 38 per Lord Watson -- which popularly understood may signify anything from intention embodied in the positive enactment to speculative opinion as to what the legislature probably would have meant although there has been an omission to enact it; and of course care must be taken to avoid the vicious circle. The intention of the legislature must not be assumed or surmised. As Lord Haldane LC said in Lumsden v. Inland Revenue Commissioners [1914] AC 877 at 892, HL:
"But a mere conjecture that Parliament entertained a purpose which, however natural, has not been embodied in the words it has used if they be literally interpreted is no sufficient reason for departing from the literal 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: see Lumsden v. Inland Revnue Commissioners (supra). In Inland Revenue Commissioners v. Dowdall O'Mahoney and Co. [1952] AC 401 at 426, HL Lord Radcliffe said:
"The beliefs or assumptions of those who frame Acts of Parliament cannot make the law."
Speaking about LI 239 generally, section 7 of the Statutory Instruments Act, 1959 (No 52 of 1959) provides:
"7. An enactment conferring power to make a statutory instrument shall not be taken to authorise the inclusion in the instrument of any provision amending, repealing or conflicting with the enactment except as may be expressly stated in the enactment conferring the said power."
Act 154 under which LI 239 was made did not specifically provide for the making of regulations for the issuing of distiller's licence conditioned on being a member of a co-operative society. There is thus a clear amendment of the enabling Act by the statutory instrument (ie LI 239) made under it. Some statutes provide that rules and orders made under them shall have the same effect as if enacted in the Act. This phrase has been said to make the subordinate legislation as completely exempt from judicial review as the statute itself. This opinion was considered and distinguished in 1931 by Lord Dunedin speaking on a scheme framed under the Housing Act, 1925, s 40. He said in R v. Minister of Health; Ex parte Yaffe [1931] AC 494 at 503, HL that:
"The confirmation makes the scheme speak as if it was contained in the Act of Parliament, but the Act of Parliament in which it is contained is the Act which provides for the framing of the scheme, not a subsequent Act. If therefore the scheme as made conflicts with the Act, it will have to give way to the Act "
And, in Rossi v. Edinburgh Corporation [1905] AC 21 where a licence to sell ice cream was in question, the Edinburgh Corporation Acts made such a licence necessary, but the licence issued to the appellant limited the days and hours of sale. It was held that the licence was ultra vires as being a restraint upon the ordinary right of every British subject and a restraint of trade. In the instant case, not only is this particular provision not empowered under Act 331 but also that it is inconsistent with the Constitution, 1992.
Since an attempt has been made to provide the intention of the framers of LI 239 by reference to the origin of akpeteshie, it is necessary for a proper and fuller understanding of the whole matter to trace the history of akpeteshie. "Akpeteshie" is a Ga word meaning "hide and buy." Akpeteshie once described as an illicit gin can no longer be so described. It acquired such notoriety that it was invariably, referred to by various appellations such as "bomkotoku", "kill me quick", "Ogogro", "mete megyaho", "maka maka", "kwankyensorodo", "VC 10", "fametu" etc, etc. The word came into use because of the obnoxious law which empowered the police to apprehend distillers of the drink as well as sellers of the liquor: see the speech of the Parliamentary Secretary to the Ministry of Commerce and Industry at the National Assembly during the passing of the Spirit (Distillation and Licensing) Bill on 7 December 1959. During that period it was an illicit gin; distillers distilled it secretly in forests and remote villages. The Liquor Ordinance dated 31 December 1920, chapter 219 of the Laws of the Gold Coast banned the drink. Section 5 of that law provided that it shall not be lawful for any person to manufacture a distilled alcoholic beverage of any kind. This law remained in force until 4 March 1957 when it was repealed by section 8 of the Excise (Amendment) Ordinance, 1957 (No 38 of 1957). Various laws have affected the manufacture of akpeteshie. These legislative restrictions occurred during part of the colonial era when our colonial masters considered the drink unhealthy and a danger to health. Perhaps there was a need for this attitude!. Now, akpeteshie is manufactured and sold publicly. Apart from schnapps, it is now proudly and publicly served at funerals and on festive occasions like any other consumable commodity, its health hazards can now be adequately controlled; there are protective provisions under LI 239 to do that without necessarily tying distillation to co-operative societies. "Akpeteshie" therefore cannot now be referred to as an illicit gin. The attempt therefore to control its manufacture by the requirement that any person who intends to distill akpeteshie should be a member of a co-operative society, to say the least, is discriminatory and a derogation from the principle underlying the formation of co-operative societies. The third plaintiff is not the only association in the country which manufactures consumable products which pose health hazards. There are chop-bars, meat-sellers, palm-wine sellers, kenkey-sellers etc, etc. All these have associations which need not be members of co-operative societies. It is presumed that there is adequate control of these associations, without the need to join co-operative societies.
The attempt to curtail or restrict the individual's or association's right to distill akpeteshie by refusing them licence unless they become members of a co-operative society is in fact a conduct which goes against the Directive Principles of State Policy which requires in article 37(2)(a) of the Constitution, 1992 that:
"(2) The State shall enact appropriate laws to assure-
(a) the enjoyment of rights of effective participation in development processes including rights of people to form their own associations free from state interference and to use them to promote and protect their interests in relation to development processes; rights of access to agencies and officials of the State necessary in order to realise effective participation in development processes; freedom to form organizations to engage in self-help and income generating projects; and freedom to raise funds to support those activities."
This court has not been shown what machinery the cooperative societies have for the arrest of the mischief which LI 239 is supposed to avoid. Co-operative societies were established under the Co-operative Societies Ordinance, Cap 190 of 1937 which was repealed by section 70 of the Co-operative Societies Decree, 1968 (NLCD 252). Section 2 of NLCD 252 provides:
"2. Subject to the provisions of this Decree, any society which has as its object the promotion of the economic interest of its members in accordance with co-operative principles, may be registered under this Decree with or without limited liability."
What are these "co-operative principles"? Historically, co-operative societies were set up in the nineteenth century. People came together to set up shops to sell low-priced goods to poor people. As the name suggested, people grouped to work or act together with one another or others. Thus the whole principle was to act or work together for a common purpose. Whatever was established, was owned and run by those participating, with profits shared by them. There was no compulsion; membership was voluntary; a joint association of people who were willing to be helpful to themselves. Any attempt to force people to join or become members of a co-operative society before they could do their work freely undermines the principle of co-operation.
Although these co-operative societies have power to make bye-laws, we were not shown any of the bye-laws of the cooperative society which could include machinery for the control of the mischiefs which are presumed to be the targets of LI 239. In fact, under section 34 of NLCD 252, a co-operative society reserves the right to refuse membership to applicants. It is therefore not open to an individual or association to insist on membership.
If the intention of the makers of Act 331 and LI 239, as presumed by the defendants, was for the protection of public health or that the restrictions were reasonably necessary in the interest of the State for the "the implementation of policies and programmes aimed at redressing social, economic or educative imbalance in the Ghanaian society", then, I think, LI 239 itself, save regulation 3, has catered for all these. As stated before in this judgment, there is evidence that the plaintiffs, particularly, the third plaintiff of which the first and second plaintiffs are members, is a registered company which has been paying its taxes, and custom and excise duties regularly: see exhibits attached to the motion filed on 4 November 1994 for an interim injunction, referred to in these proceedings.
Regulation 3 of LI 239 deals with the location of a distillery and regulation 14 with the type of construction required; regulation 5 regulates the discharge of spent wash lees or other residues and regulation 16 regulates the size, materials and method of construction of all vessels and plant used in the distillery. Regulation 17 talks about what materials are to be used in the distilling and regulation 18 requires the issue of licences. All these requirements are contained in the licence which is to be issued: vide the First Schedule to LI 239. Besides, Act 331 caters for the appointment of inspectors who may enter at any time premises in respect of which a distiller's licence is in force: see section 2( 1) of Act 331. Any police officer in uniform may also enter at any time any premises for distilling where he has reasonable grounds to suspect that spirits are being manufactured in contravention of the Act: see section 2(2)(3) of Act 331. By regulations 7 and 8 of LI 239, it is required that every distiller shall pay assessed duty.
The district chief executive who is empowered to issue the distiller's licence has the responsibility of seeing to it that all the required conditions for the issue of a licence are satisfied. The State, independently has organs for the control and checking of economic activities in the country generally: the Internal Revenue Service has machinery for the collection of taxes; the Customs, Excise and Preventive Service collects all customs and excise duties and sees to it that no goods are smuggled in or out of the country; the National Standard Board controls the quality of goods manufactured in the country and those coming into the country. Staff of the Ministry of Health go about checking and controlling the health hazards involved in the manufacturing and selling of food and drinks. 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.
I have no doubt in my mind, considering all the evidence before us, that regulation 3(1) of LI 239 is not only inconsistent with or in contravention of the Constitution, 1992 but also it is in conflict with its own parent or enabling Act, ie Act 331. Besides, the provision is discriminatory as it offends against article 17(2) of the Constitution, 1992.
The same, however, cannot be said of regulation 21 of LI 239.
Admittedly, this regulation directs as to which bodies the distilled liquor (akpeteshie) should be sold, but it gives the seller a wide choice. Although restrictive in nature, it does not leave the seller without a choice. An association which is itself a co-:-operative society may sell to itself or sell to a distiller of its choice provided it fulfils the conditions set down under the Excise Ordinance, 1953 (No 31 of 1953).
In conclusion, I find the plaintiffs' claim proved in part. I would declare that regulation 3(1) of LI 239 is inconsistent with or in contravention of the Constitution, 1992 and to that extent void.
KPEGAH JSC.: I have seen the opinion just read by my respected sister Bamford-Addo, JSC and I agree with her conclusion that the regulation impugned is reasonably required in the interest of the public and therefore not inconsistent with the Constitution, 1992.
I will also dismiss the plaintiffs' action accordingly.
ACQUAH JSC.: The issue for determination in this action is whether regulations 3(1) and 21 of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239) are inconsistent with the letter and spirit of the Constitution, 1992, in particular, article 21(1)(e) thereof. But first, the facts.
The first and second plaintiffs were for sometime, members of the Egyaa Co-operative Distillers/Retailers Union. They broke off and formed not a co-operative union but a limited liability company, called the Egyaaman Distillers Ltd, which is the third plaintiff in this action. Thereafter, as alleged by the plaintiffs, the second and third defendants started harassing them by impounding their products and preventing them to distill akpateshie on the ground that since they, the plaintiffs, do not belong to any registered distillers' co-operative as required under regulations 3(1) and 21 of LI 239, they cannot distill akpateshie. The plaintiffs then took an action at the High Court, Cape Coast for an order of injunction to restrain the defendants from harassing them, and further for a declaration that the said regulations violate their freedom of association guaranteed in article 21 (1)( e) of the Constitution, 1992 and consequently null and void. Realising that the High Court has no jurisdiction to declare an enactment null and void on grounds of its inconsistency with the Constitution, 1992, they issued the instant writ in this court for an order to declare the said regulations null and void.
The plaintiffs contend that regulation 3(1) of LI 239 which makes it mandatory for an applicant for a distiller's licence to belong to a registered distillers' co-operative; and regulation 21 which makes it obligatory for a distiller to dispose of his products to specified persons or bodies, are both inconsistent with the exercise of their freedom of association guaranteed in article 21(1)(e) of the Constitution, 1992. They allege that the said freedom guarantees the right of the individual to associate with any person or group of persons of his choice, and that in so far as the said regulations mandatorily direct them to associate with particular associations against their wish, the regulations violate their freedom of association, and consequently null and void.
The defendants denying that regulations 3(I) and 21 of LI 239 are inconsistent with the letter and spirit of the Constitution, 1992, buttressed their denial with a three-fold argument: First, as contended by the third defendant, LI 239 and the Liquor Licensing Act, 1970 (Act 331) which repealed the Manufacture and Sale of Spirits Act, 1962, (Act 154) are existing laws which have not been specifically repealed by either the Constitution, 1992 nor any legislation. The said laws therefore continue to be valid, and their provisions must be complied with. Secondly, as contended by the Deputy Attorney-General on behalf of the first and second defendants, the matters sought to be regulated by LI 239 are related to "economic activity and not association for political purposes of expressing political views, opinions or attempting to bring political ideas or ideology to bear on the political decision. making or governance of the country": see paragraph (7) of the statement of the defendants' case. This argument presupposes that the freedom of association guaranteed in article 21(1)(e) of the Constitution, 1992 does not extend to associations for economic activity but only those for political activity. Is this right? Finally, the defendants contend that the regulations are necessary for the security, safety and public health of the consumers of the local gin, and that as contended by the third defendant, this is justified by article 24(4) of the Constitution, 1992.
I will examine each of these arguments before considering whether the two regulations do violate the freedom of association guaranteed in the Constitution, 1992.
1. Existing laws vis-a-vis the Constitution, 1992:
Now, LI 239 was made by the Minister of Industries in the exercise of powers conferred on him by section 16 of Act 154. Act 154 was repealed in 1970 by Act 331. But section 23(2) of Act 331 saved all statutory instruments made and in force under Act.
154. Thus LI 239 continued to be in force under Act 331 at the time the Constitution, 1992 came into force. And of course, Act 331 is still in force. Accordingly, as rightly contended by the defendants, LI 239 and Act 331 are existing laws. And article 1(5) of the Constitution, 1992 provides that the existing laws, subject to the provisions of the Constitution, are not to be affected by the coming into force of the Constitution, 1992. Article 11(5) of the Constitution, 1992 therefore makes the continued operation of the existing laws subordinate to the provisions of the Constitution. The reason for this being that article 1 (2) thereof provides that the Constitution, 1992 is the supreme law of the land; "and any other law found to be inconsistent with any provision of this Constitution, shall to the extent of the inconsistency, be void."
Now, in view of articles 1(2) and 11(5), the Constitution, 1992 accordingly directs in article 11(6) that the existing laws shall be construed:
"……….with any modifications, adaptations, qualifications and exceptions necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to, or enable effect to be given to, any changes effected by this Constitution. "
Taylor J (as he then was), speaking about the import of article 1(2) of the Constitution, 1969 which provision is the same as that of the Constitution, 1992 in Sam v. Comptroller of Customs and Excise [1971] 1 GLR 289 at 316, put it thus:
"It seems to me that this constitutional provision at once cast into a crucible ... all the laws of the land and subjected them to the test of constitutional propriety. All those that failed the test became void and the task of an interpreter and therefore of a Ghanaian judge became to some extent simplified: It is to search in the crucible for the relevant remnants of the inconsistent provisions so that he can refuse to give effect to them. "
In my view therefore, article 1(2) of the Constitution, 1992 is the bulwark which not only fortifies the supremacy of the Constitution, but also makes it impossible for any law or provision inconsistent with the Constitution, 1992 to be given effect to. And once the Constitution, 1992 does not contain a schedule of laws repealed by virtue of article 1 (2), whenever the constitutionality of any law vis-a-vis a provision of the Constitution, 1992 is challenged, the duty of this court is to examine the relevant law and the Constitution, 1992 as a whole to determine the authenticity of the challenge. And in this regard, the fact that the alleged law had not specifically been repealed is totally immaterial, and affords no validity to that law. For article 1 (2) of the Constitution, 1992 contains an in-built repealing mechanism which automatically comes into play whenever it is found that a law is inconsistent with the Constitution, 1992. It therefore follows that the submission based on the fact that regulations 3(1) and 21 of LI 239 had not specifically been repealed, and therefore valid, misconceives the effect and potency of article 1 (2) of the Constitution, 1992 and thereby underrates the supremacy of the Constitution, 1992. I am there-fore duty-bound to determine the authenticity of the plaintiffs' claim. But before then, I have to examine the scope of the freedom of association guaranteed in article 21(d) and (e) of the Constitution, 1992, having regard to the second argument of the defendants.
2. The scope of the freedom of association
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 "solutary, 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." Article 41(d) thereof reinforces the above limitation by postulating that the enjoyment of these rights and freedoms goes along with corresponding duties and obligations which include respect for the rights, freedoms and legitimate interests of others, and a restraint from doing acts detrimental to the welfare of other persons. In realisation of these limitations, article 21 (4) of the Constitution, 1992 legitimises, inter alia, laws which are reasonably necessary to maintain the equilibrium between the competing interests and rights of the individual and those of the State.
Now, article 21(1)(e) of the Constitution, 1992 states:
"21.(1) All persons shall have the right to- ...
(e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest."
The above provision is neither unique nor novel in our constitutional history. Of course the Republican Constitution, 1960 as held in Re Akoto [1961] GLR 523, SC, did not contain any justiciaple provisions on human rights. But article 23(1) of the Constitution, 1969 and 29(1) of the Constitution, 1979 provided for freedom of association in the same wording as that of article 21(1)(e) of the Constitution, 1992.
Now, the word "association" presupposes a voluntary grouping for a common purpose The purpose for which the grouping is formed is neither specified nor limited in article 21(1)(e). The Deputy Attorney-General by his submission limits the purpose to expressions of political views, opinions, ideas or ideologies. I concede that the right to form political parties is an indisputable consequence of the freedom of association. And this was acknowledged in the Report of the Committee of Experts on Proposals for a Draft Constitution of Ghana 1991: see para 91, p 73. Indeed, at page 107, para 234 of the said Report the committee said: "The right of citizens to form political parties is a logical derivative of their freedom to associate." This is true. But that is not all there is to the idea of freedom of association. If the right to form political parties and express our political views, ideas etc were all what was involved in the freedom of association in article 21(1)(e), article 21(3) of the Constitution, 1992 would not have been enacted. Article 21(3) of the Constitution, 1992 provides:
"(3) All citizens shall have the right and freedom to form or join political parties and to participate in political activities subject to such qualifications and laws as are necessary in a free and democratic society and are consistent with this Constitution."
Now, a national Constitution like ours, being a living document expected to meet the needs and challenges of the present and future generations, ought to be interpreted broadly and liberally. And except where the clear and unambiguous language of a provision read in the light of the other provisions of the Constitution, 1992 as a whole, admits of a restricted interpretation, it would be illegitimate to restrict the meaning of any constitutional provision in a way patently unprovided for in that provision.
Freedom of association in essence means the liberty of any two or more individuals to form a body for the furtherance of any object. However, having regard to the injunctions imposed in articles 12(2) and 41(e) of the Constitution, 1992 this liberty is recognised provided the objects are not illegal or their promotion such as to involve crime or illegality. An association with criminal objects, eg 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. Thus, individuals in an area without electricity and other social amenities, may come together as an association to fight for these amenities; individuals of one tribe living in a foreign country, may come together to form an association to promote their welfare and culture; individual way-side fitters may come together to adopt measures to improve the standard of their work; vegetarians, dancers etc, etc may all form their individual associations to promote their own welfare. The legitimate object for which individuals may form an association to promote, covers not only political, but also religious, economic, labour, social, cultural, sports, education, health and so on. Thus in article 16(1) of the American Convention on Human Rights, 1969, some of the purposes for which the right to associate freely may be exercised are listed as ideological, religious, political, economic, labour, social, cultural and sports.
Now, the right to associate invariably includes the right not to associate with people with whom one does not wish to associate. Thus, people cannot be forced to join a political party. They may also decide whom they wish to exclude from their private association. In article 20(2) of the Universal Declaration of Human Rights, it is specifically provided that: "No one may be compelled to belong to an association." Indeed, the essence of the freedom of association is the liberty or lack of compulsion on the individual to form or join an association. As soon as there is compulsion on the individual to join another or to belong to an association, his freedom to join that association is eroded.
However, the fact that the individual is at liberty to form or join an association with others, does not derogate from the power of the State to make laws regulating the modalities and sometimes the manner in which the association can achieve its objective. Thus, individual artisans who have voluntarily come together to form an association to promote their business, and who wish to secure loans from a bank, may be required to have a constitution and even register their association.
Now, the freedom of association provided in article 21(1)(e) of the Constitution, 1992 includes freedom to form or join a trade union of one's choice. The plural "unions" is used, indicating that a trade union monopoly is excluded. The freedom also includes the liberty to form or join other national and international associations. Clearly, then, the language of article 21(1)(e) of the Constitution, 1992 does not permit the interpretation put on the scope of objects in respect of which individuals may exercise their freedom of association. And I therefore hold that freedom of association may be exercised in respect of any object which is legal and not contrary to public policy. I will now proceed to discuss whether regulations 3(1) and 21 of LI 239 are inconsistent with the letter and spirit of the Constitution, 1992 in particular article 21 (1)(e) thereof.
3. Regulations 3(1) and 21 of LI 239 and the Constitution, 1992
As stated earlier on, our Constitution, 1992 like the 1969 and 1979 ones, provides limitations on the exercise of the fundamental human rights and freedoms. Therefore the duty of the court in a suit alleging inconsistency of a law with a provision of the Constitution, 1992 is two-fold: First, to determine whether from the language of the alleged constitutional provision the law is, indeed, inconsistent with that provision. If it is not, the applicant fails in his challenge. But if it is, the court must proceed to the next step. And this 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.
In determining whether a law is justified on any of the constitutional provisions, especially if it is alleged that the law is reasonably necessary in the public interest, the court must examine, inter alias, the aims, objectives, functions, memoranda and other relevant materials on the law vis-a-vis the constitutional provision to find out whether the law is sufficiently necessary for the desired objective to override a constitutionally protected right or freedom. The court may even receive evidence including statistical and other statements of social and economic facts. It is the duty of the court in this analysis to balance societal interests with those of the individual and groups.
Now, regulation 3(1) of LI 239 reads:
"Every applicant for the issue of a distiller's licence shall be a member of a registered Distillers Co-operative."
And regulation 21 of LI 239 also reads:
"21. 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 provisions of section of the Act."
I will begin with regulation 21 of LI 239. Regulation 21 from its plain language restricts the distiller to specified person or body in the disposal of his products. The distiller is not permitted to sell his products to any individual or body of his choice but to registered co-operative, or to a distiller or distillers placed under the Excise Ordinance, 1953. Now, freedom of association, as pointed out earlier, is the right of two or more persons coming together to form a body for a common object, or the right of the individual to join an association of his choice. The question is: When an individual goes to sell his products to the public, is that individual going to form an association with the public or the one he sells to, for a common purpose? A seller sells his products to those in need, and there is no question of the formation of any association in the course of selling the products. After all, under regulation 21 of LI 239 the distiller is at liberty to sell his products to a registered co-operative, or any of the distillers placed under the Excise Ordinance, 1953. The distiller thus has a whole array of distillers placed under the Ordinance for him to select whoever he wishes to sell his products to. The distiller is not prevented, if he cares to, from coming together with one or more of the distillers placed under the Excise Ordinance, 1953 to form a body to promote their mutual interest. I am therefore of the considered view that regulation 21 of LI 239 does not violate the freedom of association guaranteed in article 21(d) and (e) of the Constitution, 1992.
Now, regulation 3(1) of LI 239, on the other hand, makes it mandatory for an applicant for a distiller's licence to belong to a registered distillers' co-operative. In plain language what this means is that anyone who desires to obtain a distiller's licence must first, whether he likes it or not, be a member of a registered distillers' co-operative. The applicant has no choice in this regard. He must be a member of that body. From the language of regulation 3(1) of LI 239 therefore, it cannot be doubted that in so far as it compulsorily directs an applicant to belong to these registered distillers' co-operatives, that regulation infringes the applicant's right to join an association of his choice.
In the instant case, the defendants contend that the membership of a registered distillers' co-operative requirement is an exercise of the executive power of the State as provided under article 58(2) of the Constitution, 1992 to regulate economic acfivities in the overall interest of the nation, and that this requirement is necessary to safeguard the health, safety and security of those who consume the products of the distillers. The third defendant even cites article 24(4) of the Constitution, 1992 in support of this stand.
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. Thus the issue herein is not whether the executive has power to regulate economic activities, which of course is not denied, but whether the executive in exercising its power has exceeded the bounds of reasonableness and thereby unjustifiably encroached on the individual's right of association guaranteed in article 21(1)(e) of the Constitution, 1992. The reliance on article 8(2) of the Constitution, 1992 therefore begs the question and does not resolve the issue.
Now, article 24(4) of the Constitution, 1992 relied on by the third defendant reads:
"(4) Restrictions shall not be placed on the exercise of the right conferred by clause (3) of this article. except restrictions prescribed by law and reasonably necessary in the interest of national security or public order or for the protection of the rights and freedom of others."
It is clear from the language of the above provision that it creates an exception to article 24(3) of the Constitution, 1992 which entitles every worker to form or join a trade union of his choice for the promotion and protection of his economic and social interests. And this is not the issue arising from regulation 3(1) of LI 239.
But article 21(4)(c) of the Constitution, 1992 provides:
"(4) Nothing in, or done under the authority of, a law shall be held to be inconsistent with, or in contravention of, this article to the extent that the law in question makes provision - ...
(c) for the imposition of restrictions that are reasonably required in the interest of defence, public safety, public health."
Now, to rely on such a provision it must be established or demonstrated that that law is indeed reasonably necessary. For it is no defence to a challenge to the constitutionality of a law, for one merely to cite a provision like article 21(4)(c) of the Constitution, 1992 and rest his defence that because of that provision, that law in question is justified. If this is enough, every challenge to the constitutionality of a law will fail. The requirement for proof of an allegation in a trial applies to all branches of legal suits including that of constitutional law litigation. Thus, the onus of proving that a law is reasonably necessary is on the party seeking to uphold the law. The standard of proof is the civil standard of preponderance of probabilities.
The problem with regulation 3(1) of LI 239 therefore boils down to this: Why is it mandatory for an applicant for a distiller's licence to belong to a registered distillers' co-operative? If as alleged by the defendants, membership of this body is necessary for the public safety, security and health, what part does this registered distillers' co-operative play in ensuring public security, safety and health? Act 154, Act 331 and LI 239 offer no answer to the above questions. Nothing at all is said in any of these three laws on the nature, aims and functions of a registered distillers' co-operative to enable the court to determine whether its objectives are sufficiently important and necessary to override a constitutionally protected freedom. In fact, Acts 154 and 331 do not mention a registered distillers' co-operative in any of their provisions. It is in regulations 21, 22 and 23 of LI 239 that this body is mentioned in relation only to the disposal of the products of a distiller.
At the time LI 239 was made, the Co-operative Societies Ordinance, Cap 190 was the applicable law on co-operative societies. Section 34(1) of Cap 190 which deals with qualification for membership of a registered society, even compounds the problem. It is provided therein that an applicant for membership of a registered society must be:
"(a) capable of entering into a legally enforceable contract,
(b) resident within or in occupation of land within the area of operations of the society as defined in its articles of association."
This means that where there is no registered society in the area an intended applicant resides, or has no land, he cannot become a member of a registered co-operative society and consequently cannot apply for a licence. And as to societies eligible for registration under Cap 190, it is provided in section 5 thereof as follows:
"5. Subject to the provisions of this Ordinance, any society which has as its objects the promotion of the economic interest of its members in accordance with cooperative principles, may be registered under this Ordinance with or without limited liability."
(The emphasis is mine.)
Thus the objective of a registered cooperative is the promotion of the economic interests of its members and not, as alleged by the defendants, the promotion of the health, security and safety of the consuming public. Cap 190 was repealed by the Co-operative Societies Decree, 1968 (NLCD 252), and sections 2 and 34(1) of NLCD 252 re-enacted sections 5 and 34(1) of Cap 190 respectively.
The position therefore is that, the defence that the membership requirement of a registered distillers' co-operative is necessary for the safety, security and health of the public is patently unfounded and unsupported. by NLCD 252 itself, Act 331 and Act 239. The defendants have been unable to produce any material in support of their bare and speculative claim. Nothing is said of the nature, aims and functions of registered distillers' co-operative in either Act 331 or 239. And from the objective of a co-operative society as set out in section 2 of NLCD 252, it is evident that the health, safety and security of the public are not their objectives.
Indeed, elaborate provisions are made in Act 331 and LI 239 to ensure the health, safety and security of the public. And in all those provisions, a registered distillers' co-operative plays no part. Act 331 mandates inspectors and police officers in uniform to enter and inspect a distillery in respect of which a distiller's licence had 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. Apart from the requirement that an applicant must be a member of a registered distillers' co-operative, this body plays no part under the law in the issue of licence. The licence is issued by the district assembly. And if one talks of the health of the public, the district assembly has its own health team who are better and more knowledgeable than a group of distillers whose objective is to promote their economic interest.
In 1962 when LI 239 was made, the Republican Constitution, 1960 which was then in force, made no provision for an enforceable individual's right of association, at least as held in Re Akoto (supra). And in the face of the elaborate human rights provisions in our Constitution, 1992, this compulsory requirement of a membership of a body whose aims and objective are simply for the promotion of their economic interests, can no longer stand side by side with the provisions of article 21(1)(e) of the said Constitution. The compulsory requirement of membership cannot be justified in terms of article 21(4)(c) for the reasons already stated. I am therefore of the firm view that regulation 3(1) of LI 239 is inconsistent with the letter and spirit of the Constitution, 1992, particularly article 21 (1)(e) thereof. And I so declare.
ATUGUBA JSC: I have had the privilege of reading before-hand the vigorous and well-reasoned judgment of my brother Acquah JSC and I am largely in agreement with him. He has succinctly stated the facts of this case and I therefore do not need to repeat them. The crucial issues for determination in this case are:
(1) whether or not sections 3(1) and 21 of LI 239 are inconsistent with the letter and spirit of the Constitution, 1992 of the Republic of Ghana; and
(2) whether or not sections 3(1) and 21 of LI 239 are void and ought to be set aside.
Regulation 3(1) of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239) provides:
"3.(1) Every applicant for the issue of a distiller's licence shall be a member of a registered Distillers' Co-operative",
while regulation 21 provides:
"21 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 section 6 of the Act."
In their statement of case filed on 7 December 1994 the first and second defendants contended in paragraph (10) thereof:
"that the freedom of association guaranteed by the Constitution does not extend to the management of the national economy which has been reserved to the executive and the legislature for the public safety and health by the Constitution."
This was substantially reiterated before us in oral argument by the Hon Deputy Attorney-General.
Reliance was placed on articles 58 and 12(2) of the Constitution, 1992 during argument. So far as relevant, article 58 of the Constitution, 1992 provides as follows:
"58. (1) The executive authority of Ghana shall vest in the President with and shall be exercised in accordance the provisions of this Constitution.
(2) The executive authority of Ghana shall extend to the execution and maintenance of this Constitution and all laws made under or continued in force by this Constitution."
(The emphasis is mine.)
Article 12(2) of the Constitution, 1992 provides:
"(2) Every person in Ghana, whatever his race, place of origin, political opinion, colour, religion, creed or gender shall be entitled to. the fundamental human rights and freedoms of the individual contained in this Chapter but subject to respect for the rights and freedoms of others and for the public interest."
The plaintiffs' plaint is that the provisions of regulations 3(1) and 21 of LI 239 erode their constitutional right to freedom of association. This right exists under article 21(1)(e) of the Constitution, 1992 as follows:
"21.(1) All persons shall have the right to-
(e) freedom of association, which shall include freedom to form or join trade unions or other associations, national and international, for the protection of their interest."
It is demonstrable that the powers of the President under article 58 of the Constitution, 1992, like any other power, are not without limits under the Constitution, 1992, and if those limits are justiciable then the realistic argument that can be put forward by the defendants, which they eventually did, is that the impugned regulations are within those limits.
The preamble to the Constitution, 1992 as far as relevant, recites as follows:
"IN THE NAME OF THE ALMIGHTY GOD We the People of Ghana,
IN EXERCISE of our natural and inalienable right to establish a framework of government which shall secure for ourselves and posterity the blessings of liberty, equality of opportunity and prosperity; ...
AND IN SOLEMN declaration and affirmation of our commitment to; Freedom, Justice. Probity and Accountability; The Principle that all powers of Government spring from the Sovereign Will of People; ... The Rule of Law; The protection and preservation of Fundamental Human Rights and Freedoms. Unity and Stability of our Nation:
DO HEREBY ADOPT ENACT AND GIVE TO OURSELVES THIS CONSTITUTION."
(The emphasis is mine.)
This can be summarised to mean that the Constitution, 1992 is a framework of government in which several advantages to the people are secured with special emphasis on the protection and preservation of the fundamental human rights and freedoms.
To translate this into constitutional reality the very first two provisions of the Constitution provide as follows:
"1. (1) The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.
(2) This Constitution shall be the supreme law of Ghana and any other law found to be inconsistent with any provision of this Constitution shall, to the extent of the inconsistency, be void.
2. (1) A person who alleges that-
(a) an enactment or anything contained in or done under the authority of that or any other enactment; or
(b) any act or omission of any person is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect."
(The emphasis is mine.)
See also the provisions of article 130 of the Constitution, 1992.
My understanding of all this is that the Supreme Court, particularly, is to see to it that all "The powers of government are to be exercised in the manner and within the limits laid down" in the Constitution, 1992. The expression "government", in this context, is intended to have the widest meaning, embracing all conceivable powers the Constitution, 1992 may be concerned with expressly or otherwise, since it is inconceivable that any type of power is contemplated by the Constitution to be outside the purview of these provisions. Accordingly, the Supreme Court is enjoined to determine the existence or non-existence of a power claimed, the ambit of that power and the propriety of the exercise of that power both in terms of fact and law. What the Supreme Court cannot do is to exercise or purport to exercise a power it does not have. In certain exceptional circumstances the propriety of the exercise of a power may be a circumscribed question, eg in the accreditation of ambassadors, the expulsion of aliens and the proceedings of Parliament, as the latter have been interpreted. Powers of this nature disclose practically no terms upon which they may be exercised and which the Supreme Court may accordingly question, except in a situation to which article 296 of the Constitution, 1992 is applicable.
Rarer still are instances of absolute ban on the powers of the Supreme Court, eg the proceedings of Parliament. The fundamental rights in article 21(1)(e) if the Constitution, 1992 are reinforced by article 12(1) of the Constitution, 1992 as follows:
"12. (1) The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the courts as provided for in this Constitution."
(The emphasis is mine.)
I would even say that in a collision course between this provision and article 58(1) and (2) of the Constitution, 1992, the former will, on the principle of verba generalia specialibus non derogant, prevail over the latter. If therefore the arguments of the first and second defendants in this case tend to involve the doctrine of political question or the like, what I have so far said about the powers of the Supreme Court does answer the same.
The freedom of association in article 21(1)(e) of the Constitution, 1992 extends to the economic sphere and beyond. The conferment of that power is delineated by the word "include." In Ankrah v. Ofori [1974] 1 GLR 185 at 191-192, CA, Azu Crabbe CJ said:
"In delivering the opinion of their Lordships of the Judicial Committee of the Privy Council in Dilworth v. Commissioner of Stamps [1899] A.C. 99, P.C. Lord Watson said at pp. 105-106:
'The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word "include" is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to shew that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include," and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."
See also Tuffour v. Attorney-General [1980] GLR 637 at 649, CA. There is nothing in the context of article 21(1)(e) of the Constitution, 1992 to restrict the scope of the right of freedom of association except the usual riders in favour of public interest, etc laid down in articles 12(2) and 21(4)(c) of the Constitution, 1992.
By what criteria then can the validity of the restrictions imposed by regulation 3(1) of LI 239 be tested in the light of the provisions of articles 21(1)(e) and (4)(c) and 12(2) of the Constitution, 1992? In New Patriotic Party v. Inspector-General of Police [1993-94] 2 GLR 459 at 508, SC Charles Hayfron-Benjamin JSC commenting on the case of Francis v. Chief of Police [1973] 2 All ER 251, said:
"In the Francis case (supra) at 259 Lord Pearson writing for the board noted that:
'The American judges look for the inherent limitation which there must be in the fundamental freedoms of the individual if the freedom of others and the interests of the community are not to be infringed.'
Lord Pearson suggests two ways which will be useful in our context in construing constitutional provisions affecting fundamental human and civil rights. One way will be to read into our article 21(1)(d) of the Constitution, 1992 'the necessary limitations as are inherent' in the fundamental freedoms of assembly including the freedom to take part in processions and demonstrations. The other way will be to examine article 2l(l)(d) to see whether 'according to the literal meaning of the words there is a prima facie hindering of or interference with the freedom of assembly, procession or demonstration' and, if there is, to examine article 21 (4) 'to see whether such hindering or interference is justifiable.'
I fully subscribe to the two ways stated above for construing the constitutionality of article 21(d)."
In that case certain provisions of the Public Order Decree, 1972 (NRCD 68) were declared unconstitutional on the following principles: first, the said provisions are obsolete, (per Archer CJ and Edward Wiredu JSC). Secondly, they tend to curtail rather than restrict the right involved (per Aikins JSC) or as Charles Hayfron-Benjamin JSC put it at 500:
"In article 21 (4)(c) the power as required to control those situations mentioned therein must be granted by a law which imposes reasonable restrictions on the fundamental freedoms but does not deny the citizen the fundamental freedoms to which he is entitled. In other words, the citizen's freedoms may be restricted by law on the grounds stated in the Constitution, 1992 but they cannot be denied. Any such denial will be unconstitutional and void."
Thirdly, they are unnecessary, having regard to the circumstances of the particular restriction. As Charles Hayfron-Benjamin JSC put it at 507:
"In my respectful opinion, it is not necessary for effective policing that the police or any other authority shall be invested with the power to consent or issue permits. for the enjoyment or exercise of the fundamental human or civil rights of the citizen as enshrined in the Constitution, 1992."
Fourthly, they give an unfettered or capricious power to an official. Charles Hayfron-Benjamin JSC commenting on section 7(2) of the Public Order Decree, said at 501-502:
"The section 7(2) of NRCD 68 also provides that any such meeting or procession cannot be lawfully held 'except with the consent of the [Minister] or any person authorised by him.' This provision gives the minister an unfettered right to refuse his consent. To invest the minister with such unfettered discretion is to place those who assert their constitutional rights of assembly, procession and demonstration at his mercy. 'It gives him the awesome power' to decide who shall be permitted to approach those places mentioned in NRCD 68. Section 7(2) of NRCD 68 is also clearly unconstitutional."
I would however remark that in certain exceptional cases a restriction may be held to be constitutional though it tends to deny the very right conferred. Such a case is that of Republic v. Independent Media Corporation of Ghana [1996-97] SCGLR 258 decided on 23 July 1996 in which it was held that section 15(b) of the Telecommunications (Frequency Registration and Control) Decree, 1977 (SMCD 71) which provides that:
"15. Any person who- ...
(b) uses any radio frequency without the written consent of the Board ... shall be guilty of an offence and liable on summary conviction to a fine not exceeding ¢1,000.00 or to imprisonment not exceeding twelve months or to both."
is not unconstitutional, as otherwise, utter chaos and confusion would ensue. Applying the above-stated principles (which are by no means exhaustive) to this case, I hold that regulation 3(1) negates or denies the right to freedom of association rather than restricts it and is therefore unconstitutional.
In the Malaysian case of Dewan Undangan Negerikelanian v. Nardin Bin Sallah (1992) 1 Malayan Law Journal 697, SC it was held unconstitutional for a law to authorise Parliament by resolution to expel a member of Parliament who resigned from the political party for which he stood and won elections. The headnote states:
"Per Abdul Hamid Omar L.P.
1. In testing the validity of the state action with regard to fundamental rights, what the court must consider was whether it directly affected the fundamental rights or its inevitable effect or consequence on the fundamental right was such that it made their exercise ineffective or illusory.
2. The enunciation of the right to freedom of association in article 10(1)(e) of the Federal Constitution means a citizen's right to form, to join or resign from an association. Any restriction to dissociate from an association made the guaranteed right ineffective and illusory."
These holdings are very apt to this case.
Furthermore, as my brother Acquah JSC has demonstrated, there is nothing to show that the members of a distillers' cooperative are suited to oversee distilling processes. Regulation 3(1) of LI 239 therefore, in terms of the present constitutional right to freedom of association is obsolete.
Again, under section 2 of the Liquor Licensing Act, 1970 (Act 331) an inspector or a police officer may enter premises covered by the Act and inspect what is going on there, obviously in the interest of the health and security of the consuming public. As this section affects members of a distillers' co-operative themselves, it is clearly unnecessary and even-illogical to compel membership of their co-operative.
Finally, there is no guarantee that an applicant for a distiller's licence will be admitted to the membership of any distillers' cooperative, as the latter cannot contrary to their constitutional right be compelled to admit any person to their membership. Thus the requirement of membership of a distillers' co-operative as a prerequisite for a distiller's licence renders the right of an applicant for a distiller's licence, to freedom of association, illusory.
As regards regulation 21 of LI 239, it appears far-fetched to say that its requirements affect the right of the plaintiffs relating to association. This relates more to the domain of contract, of which the plaintiffs make no complaint. For these reasons, I hold that regulation 21 of LI 239 is not unconstitutional.
I therefore hold that the plaintiffs' action succeeds and grant them the reliefs sought in so far as they relate to the constitutionality of regulation 3(1) of LI 239 and the inclusion in their objects of the distillation of akpeteshie.
I emphasise, however, that the statutory requirement of procuring a licence to distil akpeteshie or the like by Act 331 still holds, except that the incumbrance of compulsory membership of a distillers' co-operative has by this judgment, been removed.
Application allowed in part.