LOTS-SERVICES GHANA LIMITED (PLAINTIFF) vs. NATIONAL LOTTERY AUTHORITY (DEFENDANT) [2016]DLHC7419

LOTS-SERVICES GHANA LIMITED (PLAINTIFF) vs. NATIONAL LOTTERY AUTHORITY (DEFENDAN... [2016]DLHC7419

Date	2016-07-15
Suit No.	SUIT NO.: CM/BDC/0360/2016
Citation No.	[2016]DLHC7419

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MR. BAFFOUR GYAU B. ASHIA FOR MR. THADDEUS SORY FOR THE PLAINTIFF

MR. DANIEL SEGU OSEI WITH HIM GEORGINA ARTHUR AND ERNEST KUSI FOR THE DEFENDANT

[2016]DLHC7419
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													<main id="main" class="content" style="min-height: 60rem" >LOTS-SERVICES GHANA LIMITED<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;
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SUIT
NO.: CM/BDC/0360/2016&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: 15TH JULY, 2016<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MR. BAFFOUR GYAU B. ASHIA
FOR MR. THADDEUS SORY FOR THE PLAINTIFF <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
DANIEL SEGU OSEI WITH HIM GEORGINA ARTHUR AND ERNEST KUSI FOR THE DEFENDANT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, 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;
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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>The instant application seeks an order of
interlocutory injunction to restrain the defendant/respondent whether by
itself, servants, assigns, workmen or agents or any such person howsoever from
further re-distribution of the lotto marketing companies (LMCs) between
plaintiff/applicant and Simnet and or&nbsp;
any further migration of retailers from plaintiff’s ICT platform to that
of Simnet. The application is supported by an affidavit and then a
supplementary affidavit. The defendant is opposed to the application as shown
by the affidavit in opposition as well as the supplementary affidavit in
opposition.<o:p></o:p>The plaintiff had issued a writ on the 2nd
June, 2016 and is claiming against the defendant, among others, for “a
declaration that by assigning plaintiff’s revenue, the only interest or benefit
derived from the contract by plaintiff to Simnet after its re-engagement, the
defendant has committed a gross breach and violation of clause 19.5 of the
agreement which provides that ‘neither party may assign the benefit or burden
of this agreement or any interest under this agreement except with the prior
written consent of the other’”. The plaintiff also seeks perpetual injunction
against the defendant.<o:p></o:p>The substance of the plaintiff’s application is
that it entered into an agreement, exhibit ‘E’ herein, with the respondent in
November, 2012 by virtue of which the applicant was to procure and install an
End to End Lottery Solution with value added commercial services for the
optimization of expected returns for a period of ten years certain renewable
for a further term of five years. The parties also entered into other related
contracts following the November 2012 agreement. The plaintiff was to be paid,
under the agreement ‘3.5% of gross intake revenue generated per month by the
active Points of Sale deployed for the services provided on the end to end
lottery solution system’ and an additional 1% for the provision of the lottery
management system LMS software.&nbsp; <o:p></o:p>It is the case of the plaintiff that subsequent to
the agreement and its implementation, the defendant, had written to the
plaintiff and expressed its intention to re-engage Simnet to provide similar
technical lottery services as applicant. The plaintiff says that the decision
to engage Simnet is illegal and that the appointment of Simnet breaches the law
on procurement. Plaintiff also says that the re-engagement of Simnet undermines
clause 2.2 of the agreement. Plaintiff says that the re-engagement of Simnet
and a subsequent re-distribution of the LMCs will halve its revenue share and
adversely affect the plaintiff’s operations. Plaintiff also says that the
re-engagement of Simnet will breach the contract between the parties.<o:p></o:p>The plaintiff says, as appears in paragraph 33, 34
and 35 of the supporting affidavit;<o:p></o:p>33. That at all times material to Applicant’s
present suit against Respondent, the Respondent has commenced the migration of
retailers from the Applicant’s ICT platform to that of SIMNET with the effect
that the LMCs pre-paid credit uploads nationwide at the end of April 2016
establish the fact that nearly 30% of the Applicant’s business has been
migrated by the Respondent to SIMNET’s platform.<o:p></o:p>34. That in Greater Accra which carries the biggest
market share of the lotto business as against the other 9 regions the Applicant
has lost 51.9% of the business on its platform as a result of the assignment of
retailers and revenue to SIMNET’s platform by the Respondent.<o:p></o:p>35. That the Respondent’s ultimate goal is to move
fifty per cent of the current revenue Applicant earns across the ten regions of
the country to that of the SIMNET platform, which if allowed, apart from being
a breach of contract, will also push the Applicant to insolvency as it will be
unable to meet its financial obligations to Skilrock and other third parties as
and when they fall due.<o:p></o:p>It is for these reasons that the plaintiff seeks an
order to restrain the defendants.<o:p></o:p>The defendant says that it has the legal mandate to
license individuals and corporate entities to operate as Lotto Marketing
Companies to retail the defendant’s products. The respondent also says that the
re-engagement of Simnet was done in accordance with law and that the
redistribution of LMCs between applicant and Simnet was done in pursuance of
the defendant’s mandate under the law. Respondent says that the agreement
between it and the applicant does not grant exclusivity of contract for the
provision of the services in question to the applicant. The defendant says that
<o:p></o:p>