Court sets April 1 to rule on Lotto operators case

Friday, March 6, 2009 (Page 20 Lead)

THE Accra Fast Track High Court will on Wednesday, April 1, 2009 decide whether or not to stay execution of the outlaw of private lotto pending the outcome of an appeal filed by the Ghana Lotto Operators Association (GLOA).
The court fixed the date for ruling after it heard arguments from lawyers for the GLOA and the National Lottery Authority (NLA) after the matter was referred to the court on the orders of the Supreme Court.
The Supreme Court had on February 12, 2009 quashed the dismissal of an application for stay of execution of the outlaw of private lotto following the passage of the National Lottery Authority (NLA) Act 2006, Act 722.
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.
The Supreme Court after listening to parties in the case 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.
At the Fast Track High Court’s sitting in Accra counsel for the GLOA, Mr Aurelius Awuku, said there was a deliberate effort on the part of the NLA to prevent the GLOA from getting a licence to operate.
He also prayed the court to look into the Supreme Court’s ruling on July 23, 2008 which declared 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.”
According to counsel, the applicants had a right to operate private lotto, adding that it was important for the court to look into those issues while deciding whether or not to stay proceedings pending the outcome of the appeal.
Replying, counsel for the NLA, Mr Kizito Beyuo, said the Supreme Court had maintained that the Lotto Act was constitutional and must be complied with by the applicants.
He said the Act was effective in 2006, adding that exhibits available showed that apart from the applicants initial registration, they did not procure licence to operate.
Mr Beyuo stated that the GLOA had no locus at all, arguing that it was only an organisation set up to protect the interest of private lotto operators.
He further argued that the applicants had shifted from the substance of the case and for that matter the court should not entertain the application.
In the application for injunction pending the outcome of the appeal, the applicants argued that the court’s outlaw of private lotto was wrong in law and an improper exercise of discretion”.
According to the applicants , "the subsequent dismissal of our action raises serious questions of law and fact which would have to be considered by the appellate court".
An affidavit in support of their motion for stay of execution stated that the ruling of the Fast Track High Court had the potential of folding up the business of the plaintiffs, which, it said "would be irreparable in the likely event that the appellate court reverses the wrongful ruling".
It said the appeal, which was likely to succeed, touched on the fundamental human rights of the plaintiffs and accordingly prayed the court to restrain the NLA from interfering with the work or property rights of the plaintiffs, pending the determination of the appeal.
According to the applicants the Supreme Court recognised that the plaintiffs were not at the mercy of the state in seeking to participate in the state regulated lottery industry.
It further argued that the Supreme Court never said the plaintiffs could not participate in the state regulated lottery industry.
They further argued that the trial judge erred in law by summarily dismissing an action which concerned their fundamental human rights.
They said the trial judge failed in his duty to give them a fair hearing in a case involving serious issues of fact and several pieces of evidence.
The applicant/ appellants are, therefore, praying for an order to set aside the ruling of the trial court, as well as an order to restore the their action for it to be determined on the merits after a proper hearing.
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.