GHANA LOTTO OPERATORS ASSOCIATION vs. NATIONAL LOTTERY AUTHORITY [2008]DLSC2458

Date	2008-07-23
Suit No.	REF. NO. J6/1/2008
Citation No.	[2008]DLSC2458

BROBBEY J.S.C. (PRESIDING)

DR. DATE-BAH J.S.C.

ANSAH J.S.C.

ANIN-YEBOAH J.S.C.

BAFFOE-BONNIE

AURELIUS AWUKU FOR THE PLAINTIFF

KIZITO BEYUO FOR THE DEFENDANT.

[2008]DLSC2458
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >GHANA LOTTO OPERATORS ASSOCIATION<o:p></o:p>vs.<o:p></o:p>NATIONAL LOTTERY AUTHORITY<o:p></o:p>[SUPRME
COURT]<o:p></o:p>REF.
NO. J6/1/2008<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 23RD JULY 2008.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AURELIUS
AWUKU FOR THE PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

KIZITO
BEYUO FOR THE DEFENDANT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

BROBBEY
J.S.C. (PRESIDING), DR. DATE-BAH J.S.C., ANSAH J.S.C., ANIN-YEBOAH J.S.C.,
BAFFOE-BONNIE<o:p></o:p>

</div><o:p>&nbsp;</o:p>R U L I N G<o:p></o:p>DR.
DATE-BAH, J.S.C.:<o:p></o:p>The
original jurisdiction of the Supreme Court has been invoked in this case by a
reference made by His Lordship Justice Abada from the High Court, Accra.&nbsp; The issue referred to us for determination
is: “whether Act 722 violates Articles 33(5), 35(1) and 36(2) of the 1992
Constitution”.&nbsp; The reference is clearly
made in accordance with article 130 (2) of the Constitution, which provides
that, where an issue that relates to the enforcement or interpretation of the
Constitution or to matters arising as to whether an enactment has been made in
excess of the powers conferred on Parliament or any other authority by law or
under the Constitution arises in any proceedings in a court other than the
Supreme Court, the court is obliged to stay proceedings and refer the question
of law concerned to the Supreme Court for determination.<o:p></o:p>The
background to this reference is that on 27th December, 2006, the President gave
his assent to The National Lotto Act, 2006.&nbsp;
This Act established the National Lotto.&nbsp;
The National Lottery Authority was established under Part II of the Act
to conduct the National Lotto.&nbsp; Section 4
of the Act prohibits any person other than the National Lottery Authority from
operating any form of lottery.&nbsp; The
second to seventh plaintiffs are companies established under the laws of Ghana
to operate private lotto business.&nbsp; The
first plaintiff is also a company established under the laws of Ghana whose
object is to foster a cordial relationship among private lotto operators and to
assist distressed lotto operators.<o:p></o:p>The
plaintiffs’ complaint is that after the establishment of the defendant, it
caused newspaper announcements to be issued in July 2007 about its
establishment.&nbsp; These announcements
publicised the statutory provision that a person other than the&nbsp; National Lottery Authority (which will be
referred to subsequently in this opinion as “the Authority”) shall not operate
any form of lottery in Ghana.&nbsp; The
announcements also stated that: “In view of the establishment of the Board, all
persons who before the commencement of this Act, possesses or own a machine or
equipment used for the operation of lottery of any kind, shall within fourteen
days after the commencement of this Act surrender the machine or equipment to
the Director-General by 14th August, 2007.&nbsp;
Section 58(4)”.&nbsp; The plaintiffs
were aggrieved by the contents of these announcements and therefore issued a
writ of summons against the Authority on 13th August 2007, claiming the
following remedies:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;
“A declaration that the directive from the Defendant to private lotto
operators to surrender machines or equipment used for the operation of lottery
to the Director-General of the Defendant by the 14th August 2007 is
unconstitutional, illegal and unreasonable.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;
An order setting aside the directive referred to in relief (1) above.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;
An order restraining the Defendant itself, its agent(s), servant(s) or
any person(s) howsoever described acting for or purporting to act for the
Defendant from unlawfully, unconstitutionally or unreasonably interfering with
the property rights of the Plaintiffs.<o:p></o:p>4.&nbsp;&nbsp;&nbsp;
An order restraining the Defendant itself, its agent(s), servant(s) or
any person(s) howsoever described acting for or purporting to act for the
Defendant from interfering with the private lotto operating business of the
Plaintiffs.<o:p></o:p>5.&nbsp;&nbsp;&nbsp;
A declaration that the National Lotto Act, 2006 (Act 722) to the extent
that it outlaws the operation of lotto business by private lotto operators,
infringes the constitutionally guaranteed right of the private lotto operators
to free economic activity.<o:p></o:p>6.&nbsp;&nbsp;&nbsp;
A declaration that the creation of the National Lottery Authority to take
over and monopolise the operation of the lotto business in Ghana infringes the
Constitutional injunction to the government to ensure a pronounced role of the
private sector in the economy.<o:p></o:p>&nbsp;7.&nbsp;&nbsp;&nbsp;
Any further order(s) as the court may deem fit.”<o:p></o:p>&nbsp;<o:p></o:p>After
filing their writ and statement of case, the plaintiffs applied for an
interlocutory injunction to restrain the defendant from interfering with their
property rights or lotto business pending the final determination of the
matters raised in their writ.&nbsp; It was in
the ruling of Abada J on this application that he decided to make the present
reference to the Supreme Court.<o:p></o:p>The
reference<o:p></o:p>First
Issue:&nbsp; Does Act 722 violate Article
33(5)?<o:p></o:p>Article
33(5) provides that:<o:p></o:p>