OSCAR RAPHAEL vs. FRANK AWUAH ADJEI & 3 ORS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    KUMASI - A.D 2014
OSCAR RAPHAEL - (Plaintiff)
FRANK AWUAH ADJEI & 3 ORS - (Defendant)

DATE:  10TH MARCH, 2014
SUIT NO:  OCC/03/13
JUDGES:  ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS:  OHENE-AMANKWAH GYAN FOR THE PLAINTIFF
HANSEN KODUA FOR THE DEFENDANTS
JUDGMENT

The Plaintiff in this action claimed that he won a lottery which is run by the 1st Defendant. His case was that he staked some numbers with the 2nd, 3rd and 4th Defendants who are agents of the 1st Defendant. He alleged that he won the numbers staked per Asare Original Pay All winning numbers as announced at the time in question. It is the alleged prize money of GH¢18,000.00 which he has sued for.

 

The Defendants denied all the material allegations of fact made by the Plaintiff. Their defence was that Private Lotteries, including Asare Original pay All, had been abolished by Act 722 and the same had been confirmed by the Supreme Court. Thus, the Defendants could not have been given any license by the National Lottery Authority (NLA).They pleaded illegality.

 

The main issue for determination by this court is whether or not the Defendants have license to operate Private Lottery? And if so, whether the Plaintiff is entitled to his claim.

 

In all civil suits, a party who makes an averment which is denied by his opponent assumes the burden of proof on that assertion as was held by Kpegah JA (as he then was) in Zambrama v Segbedzi (1991) 2 GLR 221 as follows:

 

“… a person, who makes an averment or assertion; which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” See also Continental Plastic v IMC Industries-Technik GMBH (2009) SCGLR 298 at 307.

 

Having assumed such an onerous burden, it is the duty of that party to introduce credible evidence so that on the totality of the evidence, the court will find that party’s case to be more probable than not as required by sections 11(4) and 12 of the Evidence Act, 1975 N.R.C.D. 323. These provisions read as follows:

 

“Section 11(4): In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”

 

“Section 12(1): Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.

 

Section 12(2): Preponderance of the probabilities ‘means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact was more probable than its non-existence.”

 

A close look at the pleadings in this case reveals that the evidential burden as well as the burden of persuasion on the issues for consideration rest on the Plaintiff.

It must be noted that the Defendants refused to participate in this trial after hearing notices had been served on them through their lawyer. The court had no option than to invoke the provisions of Order 36 rule 1 (2) (a) of the High Court (Civil procedure) Rules, 2004 C.I. 47. This rule states:

 

Rule (1) (2)      where an action is called for trial and a party fails to attend, the trial judge may:

 

Where the Plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim.

 

On 15/01/2014, the Plaintiff testified in court. His evidence was brief. He repeated the averments in his statement of claim that the 1st Defendant is a lotto agent and operates under the name and style Frank Lotto Agent Enterprise. He added that the other defendants are the agents of the 1st Defendant on whose behalf they sell lotto tickets. Further, the Plaintiff indicated that the 1st Defendant’s business is a licensed “Banker to Banker” and it operates on numbers drawn by Asare Original Pay All. The Plaintiff did not call any witness.

 

At the end of the Plaintiff’s case, the court subpoenaed the Regional Director of the NLA, Ashanti Region (CW1) to give evidence on the operations of Private Lotteries in Ghana. The following part of his evidence was so vital:

 

“Before the year 2006, Private Lottery Business did exist. They were supposed to pay some tax to the Metropolitan, Municipal and District Assemblies (MMDA). It was realized in 2006 that these taxes were not being paid as envisaged. Subsequently, there was a bill before Parliament in 2006 which was subsequently passed into a law known as the National Lotto Act, 2006, Act 722 which abolished all forms of lottery business, thereby making lotto as a business state owned. Per this law, all those who were engaged in private Lottery were supposed to surrender their equipment to the state and to register as Lotto Marketing Companies as retailers of National Lottery Authority (NLA). Most people complied but the recalcitrant ones refused to.”

 

Apart from the oral evidence adduced by the Plaintiff, he failed to show any documentary proof that the 1st Defendant has a license to operate his lotto business. If the Plaintiff genuinely believed that the requisite licence is in the custody of the 1st Defendant, he could have applied for an order for discovery of that particular document under Order 21 rule 5 of C.I. 47 prior to the trial. And, this document could have been relied on by the Plaintiff.

 

Alternatively, the Plaintiff could have subpoenaed the authority that issued the license to the 1st Defendant to prove that a licence was in fact issued to him. I do not think the Plaintiff herein has satisfactorily proved the issue of the 1st Defendant’s alleged lotto licence by merely repeating the averments contained in his statement of claim in the witness box.

 

The evidence of the Court witness has also been considered. This is to serve as a guide to enable the court to make its own findings. It confirms the assertions of the Defendant that Private Lotto operations in Ghana are prohibited. The relevant law is section 4 of the National Lotto Act, 2006 Act 722:

 

Sec 4(1) A person other than the Authority shall not operate any form of Lottery.

 

Sec 4(2) A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine of not more than two thousand and five hundred penalty units or imprisonment for a term of not more than three years or both.

 

The prohibition of Private Lotteries was also affirmed by the Supreme Court in the Republic v High

Court (Fast Track Division) Accra; Ex Parte National Lottery Authority (Ghana Lotto Operators Association & Others Interested Parties) (2009) SCGLR 390. The Supreme Court made reference to Section 58 of the Act which state:

 

Sec. 58 (1) “ Any person or legal entity issued with a license to operate a lotto under any of the repealed enactments 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.”

 

Sec. 58 (2) “The licence of a person who fails to apply to the Director-General to be licensed as a Lotto Marketing Company within the stipulated time in subsection (1) shall be deemed to have been revoked after ninety days.”

 

I deem it necessary to place emphasis on the word “SHALL” contained in the above provisions. Section 42 of the Interpretation Act, 2009 Act 792 makes provision for the construction of the words “shall” and ‘may”. This is what it states:

 

Sec. 42 “ In an enactment the expression “may” shall be construed as permissive and empowering, and the expression “shall” as imperative and mandatory.”

 

Therefore, the combined effect of section 58 of Act 722 and section 42 of Act 792 is that no entity or person in Ghana can operate a private lotto after the coming into force of Act 722 at the end of December, 2006. If Asare Original Pay All had a previous lotto license, per section 58 of Act 722, that licence shall be deemed to have been revoked. However, if it applied to be licensed as a Lotto Marketing Company of the Ghana National Lottery Authority, its operations must be regulated by Act 722. The duties of a Lotto Marketing Company are clearly spelt out under Section 9 of Act 722 as follows:

 

Sec. 9 A Lotto Marketing Company shall

a. Buy on prepaid basis from the Board a number of coupons on dates and times and at places that the board determines,

b. Not sell or distribute coupons other than coupons issued by the Authority,

c. Submit returns of coupons sold and unsold,

d. Display its licence at a conspicuous place on the premises of its head office or premises of operation, and

e. Perform other functions in respect of the operation of National Lotto determined by the Minister on the advice of the Board.

 

From the evidence of the Plaintiff, the 1st Defendant relies on the lotto numbers drawn by Asare Original Pay All to operate his lotto business. After December, 2006, Asare Original Pay All had no legal right to operate its own lotto and draw its own numbers. If they have been registered as a Lotto Marketing Company, they are required to fulfil their duties under section 9 of Act 722. As for the activities of the 1st Defendant, the least said about it, the better. The coupons issued to the Plaintiff by the 2nd, 3rd and 4th Defendants, acting as agents of the 1st Defendant which were tendered as the exhibit ‘A’ series are certainly not National Lotteries Coupons.

 

There is no evidence to show that the 1st Defendant is an agent of any Lotto Marketing Company licensed by the National Lotto Authority. Under these circumstances, the 1st cannot be said to be operating as an agent of National Lotto. The Lotto activities of the Defendants are therefore illegal and must be stopped forthwith. Having found that the Defendants’ Lotto activities are illegal, the Plaintiff cannot enforce any right in respect of these illegal activities in court.

 

The National Lotto Act, Act 722 has been in force since the year 2006. Massive public education has gone on over the years and the Plaintiff cannot deny knowledge of the illegality of lotto businesses popularly referred to as “banker to banker”. He even said in his evidence that the lotto he staked was a “banker to banker”. To enforce the Plaintiff’s rights in court will amount to encouraging a private citizen to undermine the laws of Ghana.

 

Even if the Plaintiff was not aware of the provisions of Act 722, specifically, section 4(1), that cannot be an excuse for him. In short, he staked an illegal lotto and cannot invite the court to make an order for his prize to be enforced.

 

The Plaintiff’s action fails on grounds of illegality. The parties are to bear their own costs.