THE REPUBLIC vs. NATIONAL LOTTERY AUTHORITY EX PARTE SCANCOM GH. LTD [2015]DLCA5482

Date	2015-12-17
Suit No.	CIVIL APPEAL NO. H1/211/2015
Citation No.	[2015]DLCA5482

MARFUL-SAU JA (PRESIDING)

ADUAMA- OSEI JA

TANKO AMADU JA

DAVID LAMPTEY (JNR.) FOR RESPONDENT/APPELLANT

AKUA OHENETWENE- BOATENG FOR APPLICANT/RESPONDENT

[2015]DLCA5482
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>NATIONAL LOTTERY AUTHORITY<o:p></o:p>(RESPONDENT/APPELLANT)<o:p></o:p>EX
PARTE SCANCOM GH. LTD (APPLICANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO.
H1/211/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;17TH
DECEMBER, 2015<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU,
JA :- The facts of this appeal are as follows;
on the 1st of March 2014 the applicant/ respondent in this appeal
Scancom Ghana Ltd. lunched a business promotion called the MTN GO RIO PROMOTION
(hereinafter called the Promotion) The promotion was to run for 90 days.
According to the applicant/ respondent the promotion was a marketing strategy
to advertise itself and also to get its name imprinted in the minds of the
public. The promotion was also to create public excitement in the 2014 Soccer
World Cup in which Ghana participated. The promotion was opened to all
subscribers of the applicant/ respondent and prizes to be won included 80
Samsung LED television sets, 30 Samsung Galaxy Tablets, 150 Samsung S3 mini
handsets, 550 Huawei Y 220 Ascend phones, free air time, and 5 brand new KIA
RIO saloons cars. According to the applicant/ respondent its subscribers did
not have to pay any sum of money to be eligible for the promotion and no draw
was organised to determine winners.<o:p></o:p><o:p>&nbsp;</o:p>On
the 16th of April 2014, the respondent/appellant herein the National
Lottery Authority wrote to the applicant/ respondent requesting that they
terminate the promotion since in their view the promotion was a form of
disguised lottery. The applicant/ respondent on receipt of this letter wrote to
deny that the promotion was a form of lottery. The respondent/ appellant then
commenced an action at the Circuit Court seeking several reliefs among them an
injunction to restrain the applicant/respondent from continuing with the
promotion. The applicant/ respondent then applied for Judicial Review from the
High Court seeking the following reliefs:-<o:p></o:p>‘’i) That respondent has
no&nbsp; authority whatsoever to seek to
prevent us from continuing with our promotion which is clearly a consumer
promotion and not lotto and/or a game of chance.<o:p></o:p>ii) That respondent a
creation of statute, and more specifically a creation of the National Lottery
Act, 2006, Act 722 is required to act strictly in accordance with the
provisions of the statute and does not include a right and /or authority to
prevent us from engaging in promotions. Its directive contained in exhibit MTN 2
is therefore without any basis whatsoever and howsoever.<o:p></o:p>iii) An order of Quo
Warranto directed at respondent to show the basis of its action and on its failure
an injunction to restrain respondent from interfering whatsoever and howsoever
with the promotion of applicant.<o:p></o:p>iv) Damages of GH₵2, 000,000.00(Two Million
Ghana Cedis)<o:p></o:p>On
the 24th October 2014, the trial High Court delivered its ruling on
the matter and held that the promotion was not lotto but a consumer promotion.
The court further held that the mandate of the respondent/appellant under the
National Lottery Act, Act722 and Lottery Regulations LI 1948, was restricted to
the business of Lotto and that the words Lotto and Lottery are used interchangeably
in Act 722 and LI 1948. In essence the trial High Court upheld the claims by
the applicant/respondent that the respondent/appellant had no right to prevent
it from continuing the promotion. It is against this ruling that the
respondent/ appellant has appealed to this court praying that the entire ruling
be set aside.<o:p></o:p>In
the notice of appeal filed on the 4th November 2014, one ground of
appeal was formulated, which is that ‘’the learned trial judge erred in law
when he held that the mandate of the respondent/appellant under the National
Lottery Authority Act, 2006, Act 722 is to regulate only Lotto and the ’’MTN Go
Rio’’ Promotion did not contravene section 4 of Act 722.’’ The
respondent/appellant as per Rule 8 (4) of the Court of Appeal Rules, CI 19
stated the particulars of the error of law as follows:-<o:p></o:p>‘’a)the learned trial High
Court judge was wrong in law when he held that the word ‘’lotto’’ and
‘’lottery’ used in Act 722 are used interchangeably and the mandate of
respondent/appellant is to regulate only lotto as defined in section 56 of Act
722.<o:p></o:p>b)the learned trial High
Court judge failed to recognise that the</main>