Tuesday, August 26, 2008

NO LOTTO - For private operators, Fast Track Couort rules

August 21, 2008 (Lead Story)

THE activities of private lotto operators have now been outlawed in Ghana.
This follows a ruling by the Accra Fast-track High Court yesterday which dismissed the action instituted against the National Lottery Authority (NLA) by the Ghana Lotto Operators Association (GLOA).
The lotto operators had sought to question the constitutionality of the National Lottery Authority (NLA) Act 2006, Act 722.
In dismissing the case, the court also ordered the GLOA and six others to surrender their lotto drawing equipment to the NLA.
It also awarded a total cost of GH¢14,000 against the plaintiffs. Each of the plaintiffs was expected to pay GH¢2,000.
The other plaintiffs are Obiri Asare and Sons Limited, Rambel Enterprise Limited, Dan Multipurpose Trading Enterprise Limited, Agrop Association Limited, Star Lotto Limited and From-Home Enterprises.
The plaintiffs, who looked bereft after the court’s ruling, declared their intention to file for stay of execution of the order which they described as untenable.
The plaintiffs had sought a declaration that the directive from the NLA to private lotto operators to surrender machines or equipment used for the operation of lottery to the Director-General by August 14, 2007 was unconstitutional, illegal and unreasonable.
But the Fast-track High Court relied on a Supreme Court ruling which declared the Lotto Act as constitutional and maintained that the order from the NLA was valid and must be complied with by the plaintiffs.
The Supreme Court had, in a unanimous decision on July 23, declared the Act constitutional but stated that “the analysis by the defendant (NLA) is largely correct except that the plaintiffs are not at the mercy of the state in seeking to participate in the state regulated lottery industry. The licensing regime has to conform to the standards set in Article 296 of the Constitution”.
The Supreme Court further ruled that “the National Lottery Authority has a duty to be fair and candid in allocating licences to those who wish to participate in the lottery business.”
In its ruling, the Fast-track High Court further held that the plaintiffs were not entitled to any compensation because they did not make such claims in their statement of case, adding that the plaintiffs were only “shifting the goal posts”.
The Fast-track High Court’s ruling followed an application filed by the NLA, which prayed the court to dismiss the plaintiffs’ suit on the premise that the Supreme Court had declared the Lotto Act as constitutional and for that reason there was no basis for the substantive suit to continue at the lower court.
The plaintiffs had maintained that the National Lotto Act, 2006 (Act 722), which outlawed the operations of lotto business by private lotto operators, infringed the constitutionally guaranteed right of the private lotto operators to free economic activity but the court held otherwise.
According to the plaintiffs, who have also declared their intention to appeal against the court’s ruling, the creation of the NLA to take over and monopolise the operation of the lotto business in Ghana infringed the constitutional injunction to the government to ensure a pronounced role for the private sector in the economy.
The Supreme Court on July 23, 2008 stated that the National Lottery Authority (NLA) Act 2006, Act 722, was not in contravention of the 1992 Constitution and that the statement of claim of the plaintiffs did not state in any way how the law infringed on their rights, especially those enshrined in Articles 33(5), 35(1) and 36 (2)(b).
Following the ruling, the parties were expected to go back to the High Court, where the substantive issue was pending for directions because the Supreme Court neither gave any orders nor award costs.
As a result of the Supreme Court’s decision, the NLA filed the application at the Fast-track High Court before a vacation judge, praying the court to dismiss the plaintiffs’ case.
The GLOA, on August 13, 2007, began the action at the High Court and applied for an interlocutory injunction against the NLA, which was granted, until the determination of the matter.
However, since the NLA raised the issue of constitutionality, the matter went to the Supreme Court because the law required that proceedings in such issues should be stayed for determination by the superior court to serve as a guide to the trial court.
According to the plaintiffs, the NLA had taken over the assets of the Department of National Lotteries (DNL), instead of overseeing the operations of the DNL, thereby resulting in the cessation of the existence of the DNL.
The GLOA said the National Lotto Act, which outlawed the operations of lotto business by private lotto operators, infringed the constitutionally guaranteed right of private lotto operators to free economic activity.
However, the NLA insisted that the law was constitutional and, therefore, did not infringe on the rights of the GLOA.
The Accra High Court, on March 14, 2008, granted an interlocutory injunction filed by the GLOA to restrain the NLA from interfering with the property rights of lotto operating businesses of the plaintiffs.
According to the court, the outcome of the case at the Supreme Court would guide it in its decision in the case because the issue of constitutionality had been raised by the NLA.

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