Try asking the following...
Try asking the following...
July 23, 2008
SUPREME COURT
CORAM
R U L I N G
DR. DATE-BAH, J.S.C.:
The original jurisdiction of the Supreme Court has been invoked in this case by a reference made by His Lordship Justice Abada from the High Court, Accra. The issue referred to us for determination is: “whether Act 722 violates Articles 33(5), 35(1) and 36(2) of the 1992 Constitution”. The reference is clearly made in accordance with article 130 (2) of the Constitution, which provides that, where an issue that relates to the enforcement or interpretation of the Constitution or to matters arising as to whether an enactment has been made in excess of the powers conferred on Parliament or any other authority by law or under the Constitution arises in any proceedings in a court other than the Supreme Court, the court is obliged to stay proceedings and refer the question of law concerned to the Supreme Court for determination.
The background to this reference is that on 27th December, 2006, the President gave his assent to The National Lotto Act, 2006. This Act established the National Lotto. The National Lottery Authority was established under Part II of the Act to conduct the National Lotto. Section 4 of the Act prohibits any person other than the National Lottery Authority from operating any form of lottery. The second to seventh plaintiffs are companies established under the laws of Ghana to operate private lotto business. The first plaintiff is also a company established under the laws of Ghana whose object is to foster a cordial relationship among private lotto operators and to assist distressed lotto operators.
The plaintiffs’ complaint is that after the establishment of the defendant, it caused newspaper announcements to be issued in July 2007 about its establishment. These announcements publicised the statutory provision that a person other than the National Lottery Authority (which will be referred to subsequently in this opinion as “the Authority”) shall not operate any form of lottery in Ghana. The announcements also stated that: “In view of the establishment of the Board, all persons who before the commencement of this Act, possesses or own a machine or equipment used for the operation of lottery of any kind, shall within fourteen days after the commencement of this Act surrender the machine or equipment to the Director-General by 14th August, 2007. Section 58(4)”. The plaintiffs were aggrieved by the contents of these announcements and therefore issued a writ of summons against the Authority on 13th August 200
AI Generated Summary
This Supreme Court reference arose from interlocutory proceedings in the High Court, Accra, where Justice Abada sought guidance under Article 130(2) on whether the National Lotto Act, 2006 (Act 722) violated Articles 33(5), 35(1), and 36(2) of the 1992 Constitution. Act 722 created the National Lotto and the National Lottery Authority, and prohibited non-Authority lottery operations, displacing private lotto operators such as the plaintiff companies and their association. Writing for the Court, Dr. Date-Bah J.S.C. rejected the Article 33(5) claim due to lack of a clearly identified unenumerated fundamental right and emphasized the regulated nature of gambling. He found Article 35(1) inapplicable to challenge Act 722. Adopting a purposive, living-constitution approach, the Court held that Article 36(2)(b) is justiciable but concluded that Act 722’s regulatory scheme does not stifle private initiative in a manner incompatible with that provision, provided licensing complies with Article 296.