July 22, 2009
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana granted the National Lottery Authority’s application for certiorari, quashing a Fast Track High Court injunction that had restrained the Authority from interfering with the operations of Ghana Lotto Operators Association and its members during their pending appeal. The Court recalled that it had previously upheld the constitutionality of the National Lotto Act, 2006 (Act 722) and noted that the Act took effect on 29 December 2006 with a 90-day transitional licensing period; thereafter, unlicensed private lotto operations were illegal. As the operators did not apply for licences, the High Court’s injunction amounted to a judicial licence to continue prohibited conduct. Emphasizing that courts must enforce statutes and that equitable remedies cannot authorize illegality, the Court held that the lower court acted in excess of jurisdiction and that certiorari lay. The decision was unanimous, with Date-Bah JSC concurring.
R U L I N G
ATUGUBA, JSC:
The Facts:
On 13/8/2007 the interested parties, who are private lotto operators, issued a writ in the High Court against the applicant challenging the constitutionality of the National Lotto Act, 2006 (Act 722) on the grounds that it violates their fundamental economic rights under the 1992 Constitution and claiming consequential reliefs. The issues as to constitutionality of the Act were referred by the trial judge to this court for determination. This court on 23/7/2008 upheld the constitutionality of the said Act, see Ghana Lotto Operators Association & Others v National Lottery Authority (2007-2008) SCGLR 1088. Pursuant to this decision the applicant successfully applied to the trial court to dismiss the interested parties’ said action.
Aggrieved, the interested parties appealed to the Court of Appeal and pending the determination of the same, were granted an interim injunction by the trial court, restraining the applicant from interfering with their “work or property rights”.
Accordingly the applicant moves this court “for an order of certiorari directed to the Fast Track High Court 1, Accra presided over by His Lordship Asante J to move into this Court for the purpose of quashing the order of the court dated the 1st day of April 2009 granting the interested Parties’ application for interlocutory injunction pending appeal…
AND ……. THAT the ground for the application is as follows-
error of law apparent on the face of the record.”
Particulars of the Application
The applicant’s grounds for this application as verified by its supporting affidavit and appearing in paragraphs 12, 13 and 18 of its statement of case are as follows:
“12. My Lords, upon the coming into force of Act 722, private lotto was outlawed subject only to the transitional arrangements provided in section 58(1) to (3). By those provisions any person who prior to the commencement of Act 722 was licensed to operate lotto, may within ninety days of the commencement of the Act apply to the Director-General to be licensed as a Lotto-Marketing Company of the Ghana National Lottery Authority. In default the licence of such person shall be deemed to have been revoked after ninety days. And such person whose licence is revoked but continues to conduct lotto of any kind commits an offence under the Act.
13. This court may take judicial notice of the fact that Act 722 received gazette notification on 29 December 2006. By section 11 of Acts of Parliament Act, 19