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Thursday, February 12,2009 (Page 3 Lead)

THE Supreme Court has quashed the dismissal of an application for stay of execution of the outlaw of private lotto.
The Ghana Lotto Operators Association (GLOA) filed an application for stay of execution of the Fast Track High Court’s ruling which outlawed private lotto, pending the outcome of an appeal, but the court, on November 4, 2008, dismissed it with the reason that “the applicants did not assert their rights to free market activity”.
Not satisfied with the processes which led to the court’s decision, the applicants, namely, the GLOA, consisting of Obiri Asare and Sons Limited, Rambel Enterprises Limited, Dan Multipurpose Trading Enterprise Limited, Agrop Association Limited, Star Lotto Limited and From-Home Enterprises, filed the application to invoke the supervisory jurisdiction of the Supreme Court to quash the Fast Track High Court’s decision.
It, accordingly, ordered that the application should be put before another judge for urgent consideration.
In a unanimous decision, the court held that the trial judge, Mr Justice K. A. Ofori-Atta, overstepped his boundaries when he heard the application for injunction at a time when there had been no order of transfer from the Chief Justice.
The court, presided over by Mr Justice William Atuguba, Mr Justice Date Bah, Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira and Mrs Justice Rose Owusu, accordingly ordered that the application for injunction should be put before Mr Justice Edward Asante for hearing.
It awarded GH¢1,000 costs against the National Lottery Authority (NLA), the interested party in the case.
The matter was before Mr Justice Asante but it was withdrawn on October 22, 2008 and put before Mr Justice Ofori-Atta who, the court ruled, had not been ordered by the Chief Justice to hear the matter as stipulated under the High Court Rules.
The court further held that the registrar of the Fast Track High Court exercised a jurisdiction he did not have by transferring the matter from Mr Justice Asante’s court to Mr Justice Ofori-Atta’s.
According to the GLOA, the learned trial judge lacked the jurisdiction to hear the application for injunction pending appeal following the outlawing of private lotto with the passage of the National Lottery Authority (NLA) Act 2006, Act 722.
In its ruling, the court said the matter should be put before Mr Justice Asante for urgent consideration, considering the fact that the matter bordered on revenue generation for the state.
Counsel for the GLOA, Mr Aurelius Awuku, prayed the court to award GH¢5,000 costs against the NLA, but counsel for the NLA, Mr Kizito Beyuo, objected, with the reason that the NLA was at that instant only an interested party.
The court, however, used its discretion and awarded GH¢1,000 costs against the NLA.
The GLOA has, in the past year, lost four different motions it filed challenging the eligibility of the Lotto Act right from the Fast Track High Court, the Court of Appeal and the Supreme Court.
It had sued the NLA and maintained that its rights to free market activity had been impinged upon by the NLA, following the passage of the National Lottery Authority (NLA) Act 2006, Act 722, but the Fast Track High Court dismissed the application, prompting the GLOA to appeal.
After filing the appeal, the GLOA filed another application praying the court to stay execution of its judgement, pending the outcome of the appeal which it (GLOA) said had a good chance of success.
However, on November 4, 2008, the court, presided over by Mr Justice Ofori-Atta, said the appellants were not able to assert their right to the law of equity.
The grounds of the motion to the Supreme Court were that the matter challenging the constitutionality or otherwise of the Lotto Act had been put before Mr Justice Asante, after it had been transferred from Mr Justice Anthony Abada’s court by the Chief Justice.
In its statement of case, the applicant stated that Mr Justice Asante adjourned hearing of the case to October 22, 2008 but on the next adjourned date it emerged that Mr Justice Asante was on leave and for that matter a court clerk adjourned it to November 6, 2008.
“On the same day of October 22, 2008, the case was called at the High Court Fast Track 2, presided over by Mr Justice Ofori-Atta, who heard submissions in the absence of the applicant and its counsel. The learned trial judge then adjourned the pending application for ruling on November 4, 2008,” it stated.
It further argued that on November 4, 2008, counsel for the applicant appeared before the court and objected to the delivery of the ruling on the grounds that the judge lacked jurisdiction to hear the application and deliver a ruling.
According to the applicant, “since the case was transferred to Justice Asante by an order from the Chief Justice, it is only another order from the Chief Justice that can put the case before him (Justice Ofori-Atta) to determine”.
The applicant argued that “in the absence of an order of transfer and any evidence confirming its existence, Justice Ofori-Atta overruled our objection and proceeded to dismiss the application for injunction pending appeal”.
Citing authorities to support its argument, the applicant held that it was evident that the registrar of the Fast Track High Court, and not the Chief Justice, had transferred the case to Justice Ofori-Atta’s court.
“The registrar sought to arrogate to himself the powers of the Chief Justice, which he did not have, and had no authority of the Chief Justice to act in that regard,” the GLOA stated.
The Fast Track High Court’s judgement banning private lotto followed an application by the NLA, which prayed the court to dismiss the plaintiff’s suit on the premise that the Supreme Court had declared the Lotto Act constitutional and, for that reason, there was no basis for the substantive suit to continue at the lower court.