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Mensima v Attorney General

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Course

Constitutional law (111)

130 Documents
Students shared 130 documents in this course
Academic year: 2022/2023
Listed booksRe: Akt! Reconstruction Re-Enactment Re-ReportingThe American Revolution
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Ghana Institute of Management and Public Administration

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MENSIMA & ORS. V ATTORNEY GENERAL & ORS. OTHERS.

AREA OF LAW: Supremacy of the Constitution, Judicial Review, Human Rights

FACTS OF THE CASE;

The first and the second plaintiffs were members of a registered cooperative union, they broke off from the union and formed a limited liability company. The object of the company was to distil a locally manufactured gin called akpeteshie. They were prevented from distilling akpeteshie by the officers of the co-operative union; they were also harassed and their products were impounded by the officers on the grounds, inter alia, that they did not belong to any registered distiller’s co-operative union; and also for having no licence as required by regulation 3 (1) of the Manufacture and Sale of Spirits Regulations, 1962 (L I 239), which provided that: “ Every applicant for the issue of a distiller’s licence shall be a member of a registered Distiller’s Co- operative.”

The plaintiffs therefore sued in the Supreme Court under article 2 (1) of the Constitution, 1992 for a declaration, inter alia, that regulation 3 (1) of LI 239, which made it mandatory for an applicant “ for the issue of a distiller’s licence” to belong to a registered distiller’s cooperative, was inconsistent with the letter and spirit of the Constitution, particularly the exercise of their fundamental right of freedom of association guaranteed under article 21(1) (e) of the Constitution. The said article 21(1)(e) provides that:

“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 defendants, however, contended, inter alia, that LI 239 and its parent Act, i. the Liquor Licensing Act, 1970 (Act 331), were existing laws within the meaning of article 11(5) of the Constitution; and that, that Act and the regulations made under it, had not been specifically repealed and must, therefore, be complied with.

Issues for Determination;

  1. Whether or not sections 3 (1) and 21 of the Manufacture and Sale of Spirits Regulations, 1962 (LI 239) (which made it mandatory for an applicant “for the issue of a distiller’s licence” to belong to a registered distiller’s co-cooperative) is inconsistent with the letter and spirit of the constitution, 1992 and therefore null and void?
  2. Whether or not LI 239 and its parent Act, i., the Liquor Licensing Act, 1970 (Act 331), were existing laws within the meaning of article 11(5) of the Constitution; and that, that Act and the regulations made under it, had not been specifically repealed and must, therefore, be complied with?

Ruling and reasoning for Issue 1;

By a majority decision of three to two, the court upheld the plaintiffs’ claim in relation to regulation 3 (1) of L I 239. The court declared regulation 3(1) of LI 239 as null and void for being inconsistent with the letter and spirit of the Constitution, particularly article 21(1)(e) thereof because of its mandatory requirement for an applicant for a distiller’s licence to belong to a registered distiller’s cooperative.

In support of the majority decision, Ampiah JSC said:

“L I 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 .. 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 a membership of a co-operative society as a condition for the issue of a distiller’s licence.”

the Supreme Court however upheld regulation 21 of L I 239 as not infringing article 21(1) (e) of the Constitution because, as a regulatory measure, L I 239 gave the distiller the choice of selling his product either to a registered co- operative or any of the distillers placed under the Excise Ordinance.

Ruling and reasoning for Issue 2;

The court’s power of judicial review was deployed to strike down regulation 3(1) as incompatible with the constitution. The court held that, the fact that the alleged law has not been specifically repealed is totally immaterial and affords no validity to that law. For article 1(2) contains a built-in repealing mechanism which automatically comes

The decision in Mensima v Attorney-General, upholding regulation 21 as constitutional and therefore enforceable on the ground that it was a law reasonably required in the economic interest of the public, is a very significant development in the law relating to enjoyment of the fundamental right to freedom of association. The decision constitutes a recognition by the Supreme Court that the fundamental right to freedom of association might be subordinated to the economic interest of the public, and not that of the individual.

The court upheld regulation 21 of L I 239 as not infringing article 21(1) (e) of the Constitution because, as a regulatory measure, L I 239 gave the distiller the choice of selling his product either to a registered co-operative or any of the distillers placed under the Excise Ordinance. It was this want of choice in the membership of an organization which was frowned upon and condemned by the Supreme Court in the subsequent case of New Patriotic Party v Attorney-General (Ciba Case).

There is no doubt that the decisions of the Supreme Court Mensima v Attorney-General and the Ciba Case have contributed significantly to the development of the Ghana Constitutional Law relating to the fundamental right to freedom of association within the meaning of articles 21(1) (e) and 27(2) (a) of the Constitution, 1992.

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Mensima v Attorney General

Course: Constitutional law (111)

130 Documents
Students shared 130 documents in this course

University: Ghana Institute of Management and Public Administration

Was this document helpful?
MENSIMA & ORS. V ATTORNEY GENERAL & ORS. OTHERS.
AREA OF LAW: Supremacy of the Constitution, Judicial Review, Human
Rights
FACTS OF THE CASE;
The first and the second plaintiffs were members of a registered
cooperative union, they broke off from the union and formed a limited
liability company. The object of the company was to distil a locally
manufactured gin called akpeteshie. They were prevented from distilling
akpeteshie by the officers of the co-operative union; they were also
harassed and their products were impounded by the officers on the
grounds, inter alia, that they did not belong to any registered distiller’s
co-operative union; and also for having no licence as required by
regulation 3 (1) of the Manufacture and Sale of Spirits Regulations, 1962
(L I 239), which provided that: “ Every applicant for the issue of a
distiller’s licence shall be a member of a registered Distiller’s Co-
operative.”
The plaintiffs therefore sued in the Supreme Court under article 2 (1) of
the Constitution, 1992 for a declaration, inter alia, that regulation 3 (1) of
LI 239, which made it mandatory for an applicant “ for the issue of a
distiller’s licence” to belong to a registered distiller’s cooperative, was
inconsistent with the letter and spirit of the Constitution, particularly the
exercise of their fundamental right of freedom of association guaranteed
under article 21(1) (e) of the Constitution. The said article 21(1)(e)
provides that:
“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 defendants, however, contended, inter alia, that LI 239 and its
parent Act, i.e. the Liquor Licensing Act, 1970 (Act 331), were existing
laws within the meaning of article 11(5) of the Constitution; and that,
that Act and the regulations made under it, had not been specifically
repealed and must, therefore, be complied with.
Issues for Determination;

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