MANZAH AND OTHERS v. REGISTRAR OF CO-OPERATIVEN SOCIETIES [1972] 2 GLR 103
HIGH COURT, SEKONDI
Date: 30 NOVEMBER 1971
BEFORE: EDUSEI J.
NATURE OF PROCEEDINGS
APPLICATION by originating summons for a declaration of the rights of the parties under the
Co-operative Societies Decree, 1968. The facts are set out in the ruling.
COUNSEL
James Mercer for the plaintiffs.
S. G. Baddoo, State Attorney, for the defendant.
[p.105] of [1972] 2 GLR 103
JUDGMENT OF EDUSEI J.
This is an originating summons taken out by the plaintiffs for the determination of the following
questions:
(a) Whether under paragraph 4 of the Co-operative Societies Decree, 1968 (N.L.C.D. 252). the
Registrar of Co-operative Societies, Accra, and the Senior Co-operative Officer, Western Region,
Takoradi, have power to impose on the plaintiffs the prerequisites and pre-conditions laid down in
their letters Nos. PR. 1711/6 of 26 April 1971, and WR/UCSRS/6 of 24 March 1971, respectively.
(b) Whether the imposition of the said prerequisites and pre-conditions are not ultra vires.
(c) Whether the plaintiffs have not complied with paragraph 4 of N.L.C.D. 252, and
(d) Whether the plaintiffs are not entitled to have their proposed society registered.
The facts leading to this application are briefly stated thus: the plaintiffs by their solicitor on 25 February 1971 sent an application to the Senior Co-operative Officer, Takoradi, for registration of their society as a co-operative society. The senior co-operative officer wrote back on 24 March 1971 setting out certain conditions or prerequisites which, in his view, were essential for the registration of the plaintiffs’ society. His letter (exhibit B) reads as follows: “Department of Co-operatives
P.O. Box 119, Takoradi 24 March 1971.
Ref. No. WR/UCSRS/6
Dear Sir,
PROPOSED UNITY CO-OPERATIVE SPIRIT RETAILERS SOCIETY
I acknowledge receipt of your letter dated 25 February 1971 together with two copies of bye-laws and
application for registration of the above-named society.
2. The application is being processed but meanwhile it has to be stressed that certain prerequisites are essential for registration of the society. (a) There must be a group of at least ten persons who follow as a normal means of livelihood the occupation of distillation of akpeteshie. (b) The persons must reside within or occupy lands within the area of operations as defined in the application. (c) The society should be existent and will be inspected by officers from this department.
(d) Members should subscribe shares in the society. [p.106] of [1972] 2 GLR 103
(e) The society must keep proper accounts for inspection by this department.
3. If the conditions above are satisfied, an economic survey will be conducted to establish the potential viability of the society. If the society is found to be an economic unit, a recommendation will be made to the Registrar of Co-operative Societies for registration of the society. 4. It would be appreciated if the points raised would be brought to the notice of your clients.
I will inform you of further developments in this exercise.
Yours faithfully,
(Sgd.) D. O. A. Akuffo Senior
Co-op. Officer (Western Region) Mr. James Mercer, Bankole Chambers, Post Office Box 26,
Sekondi. cc:The Registrar of Co-op. Societies, Department of Co-operatives, Accra.” A copy of this letter was sent to the Registrar of Co-operative Societies, Accra, who in an undated letter wrote to the plaintiffs’ solicitor and paragraphs 2 and 3 of his letter (exhibit C) are relevant to this application. Paragraph 2 of exhibit C reads as follows:
“The penultimate line of paragraph 4 (2) of the Co-operative Societies’ Decree, 1968, (N.L.C.D. 252),
namely: ‘The application … shall furnish any information in regard to the society as the Registrar may require’ empowers the registrar to demand certain conditions, the fulfilment of which facilitates eventual registration”; and paragraph 3 is also in these words, “The preparation and production of an economic survey report prior to registration is one such vital condition.”
Counsel for the plaintiffs has submitted that the conditions imposed by the senior co-operative officer and confirmed by the registrar are ultra vires the two officers because such conditions are non-existent in so far as the Co-operative Societies Decree, 1968 (N.L.C.D. 252), is concerned. It does seem to me that the conditions which are to be satisfied by a proposed society before registration are contained in paragraphs 3 (1) and 34 (1) (a) of N.L.C.D. 252. Paragraph 3 (1) is as follows:
“No society, other than a society consisting of co-operative societies which are registered in accordance with the provisions of [p.107] of [1972] 2 GLR 103 this Decree (in this Decree referred to as ‘registered societies’), shall be registered unless it consists of at least ten persons qualified for membership under paragraph 34 of this Decree.” Paragraph 34 (1) also reads as follows:
“In order to be qualified for membership of a registered society a person shall 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 bye-laws.”This clearly shows that the society must consist of at least ten members who are capable of entering into a legally enforceable contract and are resident within or in occupation of land within the area of operation of the society as defined in its bye-laws. Again paragraph 4 (1) of N.L.C.D. 252 requires an application for registration to be made to the registrar and such application ought to be signed by at least ten members qualified for membership as stated in paragraph 34 (1) of N.L.C.D. 252.
In their application to the registrar sixteen members have signed and it is interesting to note that the
application form itself was provided by the defendant and it is a printed form in which it is stated that the members are “Ghanaians over 21 years old of sound mind who follow as a normal means of livelihood the occupation of distillation and retailing of akpeteshie.” They also stipulated their area of operation to be in Takoradi. The sixteen members signed in one column, their names were written in another column and their place of abode in a third column. This means that there are only three columns shown on one side of the printed application. The three columns on the printed application do clearly comply with the requirements for registration, and there is nothing in the Decree requiring shares to be subscribed before registration can be considered, nor is it a condition precedent to registration that account books must be kept. There can be no doubt that proper accounts will have to be kept when operations of the society commence. It is equally true that shares will subsequently have to be subscribed by the members when they start distilling and retailing akpeteshi.
I can well imagine why the possession of account books and subscription for shares are not made
pre-conditions for registration of a proposed co-operative society. The chief underlying principle of the co-operative movement in this country is to encourage and assist villagers to come together to form co-operative societies to sell their produce with a view to having for themselves the profits that will otherwise go to middlemen. In short the main object of a co-operative society is the promotion of the economic interests of its members in accordance with co-operative principles. To make it a condition for such poor villagers to subscribe shares initially before registration may be difficult for them, [p.108] of [1972] 2 GLR 103 and they may not have money on hand to purchase account books immediately. But it is possible that the members may possess the raw materials to enable them to come together and organise themselves into a co-operative society. It is only when operations are in progress and proceeds from the sale of their produce start coming into the coffers of the society that they will have the financial capability to subscribe shares and purchase account books.
Counsel for the respondent referred the court to paragraph 4 (2) of N.L.C.D. 252 and submitted that that paragraph empowered the registrar to ask for any information. I have no quarrel with the learned state attorney in this regard: that the registrar has the power to ask for any information that may assist him in considering an application for registration of a co-operative society, but there is a distinction between asking for certain information from the plaintiffs and imposing conditions to be fulfilled by them before registration. Exhibit B did not ask for information but it imposed certain conditions to be complied with by the plaintiffs.
I think the registrar also fell into error when he stated in exhibit C that in view of paragraph 4 (2) of
N.L.C.D. 252, he had power “to demand certain conditions, the fulfilment of which facilitates eventual registration.” The preparation and production of an economic survey is not a condition imposed by the Decree either. The registrar in preparing his economic survey, as a purely administrative or departmental exercise, may ask for certain information which will assist him in determining the economic viability of the proposed co-operative society, but the preparation of an economic survey is not a pre-condition required by law. Co-operative officers inspect societies that have been registered by the registrar and condition 2 (c) in exhibit B relates to acts in futuro and I cannot see how it must be a prerequisite to registration: see paragraph 47 of N.L.C.D. 252. It does seem to me, however, that conditions 2 (a) and 2 (b) set out in exhibit B have been satisfied by the plaintiffs but the so-called conditions 2 (c), 2 (d) and 2 (e) contained therein and paragraphs 2 and 3 of exhibit C are ultra vires the registrar.
The plaintiffs therefore have complied with paragraph 4 (1) of the Decree but the registrar may do certain things under paragraph 4 (2). If the registrar thought these conditions as necessary prerequisites to registration, I think he should have recommended their inclusion in the Decree to the minister responsible for the department of co-operatives. Perhaps the registrar with his enormous experience in the field of co-operative movement in this country may consider it necessary to recommend to the appropriate authority to have the Decree amended to include such matters as would promote the advancement of the co-operative movement in the country.
The plaintiffs have asked me to decide “whether they are not entitled to have their proposed society
registered.” The question of registration is a matter that lies entirely within the discretion of the registrar, [p.109] of [1972] 2 GLR 103 for paragraph 5 of the N.L.C.D. 252 says that “if the Registrar is satisfied that has complied with the provisions of this Decree and that its bye-laws are not contrary to the object thereof he may register the society and its bye-laws.” (The emphasis is mine). I can well envisage the registrar now asking for certain information in accordance with paragraph 4 (2) of the Decree before considering the plaintiffs’ application for registration, and the court, in my view, will not be performing its function judicially and judiciously by attempting to fetter the registrar’s hands at this stage if the court directs that the society is entitled to be registered now. In any event a refusal by the registrar to register the society gives the
plaintiffs a right of appeal to the Minister responsible for Labour and Social Welfare: see paragraph 5 (2) of N.L.C.D. 252.
DECISION
Application granted in part.
