tiGO House promotion - STOP IT! • Fast Track High Court orders

May 18, 2011 (Lead Story)

MILLICOM Ghana Limited, operators of the tiGO mobile telecommunication brand, yesterday suffered a huge setback when the Accra Fast Track High Court restrained it from continuing with its house promotion.
The court, on March 31, 2011, had granted an interim injunction halting the mobile operator from continuing with the promotion in which its customers are rewarded with a house each for three consecutive months after entering a draw.
The order for injunction, which was filed against tiGO by the National Lottery Authority (NLA), lasted 10 days.
However, tiGO breached the terms of settlement it entered into with the NLA, which in effect required it not to continue with the promotion.
Following its breach of the settlement, the NLA went back to court and prayed it to grant an interlocutory injunction to restrain tiGO from further organising any promotion until the final determination of the substantive suit.
The court, presided over by Mr Justice Dennis Adjei, a Court of Appeal judge who sat with additional responsibility as a High Court judge, granted the NLA’s request and, accordingly, restrained tiGO from promoting, sponsoring and advertising the ongoing promotion campaign until the final determination of the suit.
The NLA was given a week to give an undertaking to pay any damages to be assessed by the court to tiGO should the NLA’s legal action against tiGO fail at the end of the trial.
There was no order as to costs against Millicom Ghana Limited.
The directors of Millicom Ghana risk being dragged to court for contempt should the company continue to run the promotion, in spite of the court order.
In arguing its case, the defendant stated that the promotion it was organising was neither a lottery nor a game of chance and that the plaintiff’s application for injunction had been brought in bad faith and should be dismissed.
It also challenged the capacity of the plaintiff to institute the action against it, with the reason that it was only the Attorney-General who was empowered by Article 88 (4) of the 1992 Constitution to prosecute all offences in the name of the Republic.
In its ruling, however, the court held that the National Lotto Act, 2006 (Act 722), enjoined the plaintiff to regulate, supervise, conduct and manage national lotto and provide for related matters and if a body or person was usurping the powers of the plaintiff, nothing prevented it from ventilating its rights in a court of law.
It further submitted that it was satisfied that after studying the arguments for both parties, there were serious triable issues for the court to look into.
The issues it set out for trial included whether or not the promotion by the defendant was a game of chance and a lottery.
In the substantive suit, the NLA has argued that it is the only body mandated by the National Lotto Act (Act 722) to regulate, supervise and manage national lotto, as well as ensure the enforcement of laws relating to national lotto.
It is, therefore, praying the court to declare that the ‘tiGO House Promotion’ is not a promotional campaign but, in fact and in law, a lottery which is prohibited by Section 4 of the Lotto Act.
The plaintiff is also asking the court to declare that tiGO’s operation of lottery without the requisite statutory licence is illegal and unlawful because the defendant has failed to comply with the Lotto Act.
It is also urging the court to declare that the value or cost of the tiGO services required to be utilised or bought by customers as a precondition to participate in the ‘tiGO House Promotion’ represents a consideration which is required by the defendant to enable qualifying customers to participate in the draw to win prizes or reward.
The NLA is further praying the court to grant a “declaration that the defendant has committed a crime, as provided by the National Lotto Act of 2006, Act 722 and the Gaming Act of 2006, Act 721, by engaging in lottery and or games of chance without a statutory licence”.
At the end of the trial, the NLA also expects the court to grant an order directed at the defendant to account for the value of all proceeds and payments received by the defendant from participating subscribers and entrants from the start of the purported promotion till the date of its cessation.
The NLA is requesting for a permanent injunction restraining the defendant and its agents from promoting, sponsoring and marketing the ‘tiGO House Promotion’ or any other form of lottery in association with third parties without the requisite licences.