MERLING GAMING GHANA LTD. (PLAINTIFF) vs. NATIONAL LOTTERY AUTHORITY (DEFENDANT) [2016]DLHC7264

Date	2016-10-18
Suit No.	SUIT NO. RPC/394/13
Citation No.	[2016]DLHC7264

HIS LORDSHIP GEORGE K. KOOMSON (J).

CHARLES ZWENNES FOR APPLICANT

YONNI KULENDI FOR RESPONDENT

[2016]DLHC7264
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													<main id="main" class="content" style="min-height: 60rem" >MERLING
GAMING GHANA LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>NATIONAL
LOTTERY AUTHORITY<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<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">

SUIT
NO. RPC/394/13&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 18TH OCTOBER, 2016<o:p></o:p>

</div>COUNSEL: <o:p></o:p>CHARLES
ZWENNES FOR APPLICANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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YONNI KULENDI FOR
RESPONDENT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP GEORGE K. KOOMSON (J).<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>In this application, the applicant prays this court
for an order directed at the Defendant/Respondent to Re-engage the Plaintiff/Applicant
and comply by specific performance of the terms of the contract pursuant to the
consent judgement dated 9th April, 2013. The applicant was brought
under order 43 rule 8(1) of C.I. 47 which provides:<o:p></o:p>‘‘If
an order of mandamus, mandatory order, an injunction or a judgment or order for
the specific performance of a contract is not complied with, the court may
direct that the act required to be done may, so far as practicable, be done by
the party by whom the order or judgment is obtained or some other persons
appointed by the court, at the cost of the disobedient party ‘’.<o:p></o:p>I have read the application and all the affidavits
filed by the parties. I have also given consideration to the oral submissions
made by both counsels. Thoughtful consideration has been given to order 43 rule
8(1) of C.I 47 and order 64 rule 1 thereof. The question which requires my consideration
is whether or not the present application is properly laid before the court? An
examination of order 43 rule 8(1) of CI 47 shows that the said rule is a
mechanism for ensuring compliance with orders made by a court in its judgment,
rulings, etc. it is noted that a court has power to order parties and other
persons who may not be parties to an action to do or abstain from doing certain
acts. For example a court has power to order a conveyance, contract or other
document to be executed or a negotiable instrument to be endorsed by a person
nominated by the court in place of a party who has neglected or refused to
comply with a judgment or order directing him to do. Where a party fails to
carry out any order made by the court, then, an application may be brought by
the party in whose benefit the order was made, under order 43 rule 8(1) of CI
47. For the court to either direct the party in whose favour the order was made
or any other person that the court may determine, to do the act. The expense
will then be surcharged to the party who failed to comply with the original
order. To me, this is the essence of order 43 rule 8(1) of CI 47.<o:p></o:p>This leads to the question, what is the order that
the court made and which has not be complied with, for which the present
application has been brought? The applicant&nbsp;&nbsp;
herein points to a terms of settlement which was adopted by this court
as a consent judgment.&nbsp; It is noted that
in adopting the terms of settlement, the court did not go further to make any
specific orders which required any of the parties to do any act. What then are
the terms of settlement which was adopted by the court? A copy of the terms of
settlement is attached to the affidavit in opposition of Atta Kofi Amoako and
marked as AKA4. The terms are reproduced in its original wording as follows:<o:p></o:p><o:p>&nbsp;</o:p>IN
THE SUPERIOR COURT OF JUDICATURE <o:p></o:p>IN
THE HIGH COURT OF JUSTICE <o:p></o:p>COMMERCIAL
DIVISION<o:p></o:p>ACCRA-A.D
2013<o:p></o:p><o:p>&nbsp;</o:p>BETWEEN <o:p></o:p>MERLING GAMING GHANA LIMITED<o:p></o:p>(Formerly
Trading as ‘‘Amaya Games Gh. Ltd’’)&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;PLAINTIFF <o:p></o:p>13 Nortei Ababio Street<o:p></o:p>