IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
GAMING COMMISSION -(Plaintiff)
NATIONAL LOTTERY AUTHORITY, GHANA COMMERCIAL BANK, UNIBANK GHANA LTD., FIDELITY BANK GHANA LTD., BARCLAYS BANK GHANA LTD., ACCESS BANK GHANA LTD, SOCIETE GENERALE GHANA LTD., UT BANK LTD. AND VIVO ENERGY GHANA LTD.
DATE: 4TH JULY, 2016
SUIT NO: OCC/89/2014
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
MR. BENSON NUTSUKPUI FOR THE PLAINTIFF
WITH HIM PERPETUAL DIKE ACHONU AND AKWELEY GABOR
MR ERNEST KUSI FOR Y. KULENDI FOR THE 1ST DEFEDNANT- WITH HIM GEORGINA ARTHUR
ANNA MARIA EWUSIE FOR THE 8TH DEFENDANT MR. LIBERTY KING FOR THE 9TH DEFENDANT
By a writ of summons the plaintiff claims against the defendants:
1. A declaration that the promotions dubbed “GCB 30 to Brazil Promo”, “Dash for 200k Promo”, “Fat Zero Promo”, “Win Easy, Win Big Promo”, “Big Deal Promo”, “The Power of GHC250 Reloaded”, “100 for 100,000 Promotion” and “Shell Akyede Kese Promotion” run by the 2nd to 9th Defendants respectively are for all purposes games of chance.
2. A declaration that the Plaintiff is the sole statutory institution mandated by the Gaming Act, 2006 (Act 721) to license and regulate the operation of Games of Chance in Ghana.
3. A declaration that any purported licenses granted the 2nd to 9th Defendants by the 1st Defendant to operate the games of chance the subject matter of this suit are unlawful.
4. A declaration that any purported partnership between the Defendants herein to operate the games of chance the subject matter of this suit without the consent or permission of the Plaintiff is unlawful.
5. An order directed at the 1st Defendant to account to the Plaintiff in respect of all receipts made by the 1st Defendant in its role in the unlawful operation of the games of chance the subject matter of this suit.
6. An order restraining the 1st Defendant from granting or purporting to grant licenses for the operation of games of chance in Ghana.
7. An order restraining the 1st Defendant from ever partnering or purporting to partner 3rd parties to operate games of chance in Ghana without the consent or permission of the plaintiff herein.
8. Costs including legal fees based on the approved Ghana Bar Association Scale of fees.
After the service of the writ and its accompanying statement of claim on the defendants Appearance were entered after which statements of defence were filed by the defendants. The 1st defendant in particular counterclaimed against the plaintiff for
a. A Declaration that pursuant to section 4 of ACT 722 and the definition of lottery in section 65 of ACT 870, the 1st Defendant has acted lawfully in its dealings with the 2nd to 9th Defendants.
b. A Declaration that the Lottery conducted by 1st Defendant under the agreements with 2nd to 9th Defendants are/were not games of chance, games or gaming as defined in ACT 721.
c. A Declaration that the significant requirement of a game of chance includes the use of a Gambling Machine unless same is incidental to the business under section 28 of ACT 721.
d. A perpetual injunction to restrain the Plaintiff from purporting to interfere with the 1st Defendant’s legitimate right in law to conduct lottery in Ghana.
e. General damages.
f. Costs including legal fees based on the approved Ghana Bar Association Scale of Fees.
The 3rd defendant also made a counterclaim for General damages against the plaintiff. After pleadings have closed and pre-trial settlement had failed, the parties set down various issues for trial by the court.
The facts of the case are that the 1st defendant collaborated with the other defendants to run various promotions. Most of the promotions, particularly the ones run by the banks, that is the 2nd to the 8th defendants, requested their customers or members of the general public to either deposit in an account to be opened by them in the banks or keep and maintain a certain sum of money as a minimum balance in their accounts with the banks for a certain period of time. After the expiration of the period, a draw will be made and a winner declared with the possibility of some of the depositors winning various prizes determined by the banks. The 9th defendant had invited members of the general public to purchase a minimum amount of fuel, whereupon a coupon would be issued to them, within a certain period of time at the end of which a draw would be made and winners of various prizes declared.
The plaintiff, a statutory organization, claims that the promotions run by the defendants was gaming or amounts to games of chance and as such the plaintiff is the authority established by law to grant or licence organizations, companies and any other person interested in running such promotions and that the failure of the defendants in obtaining licence from the plaintiff is an infringement of the law. The plaintiff claim that the 1st defendant is not authorized to licence the defendants. The defendants deny the plaintiff’s claim. The 1st defendant asserts that under the law it is rather the 1st defendant that has power to contract with the other defendants to run the promotions in questions. The plaintiff therefore sued seeking the reliefs endorsed on its writ of summons.
At the trial the court ordered the parties to file written submissions on the issues in accordance with Order 33 of the Rules of the High Court since issues raised largely have to do with the interpretation of the functions imposed upon the plaintiff and the 1st defendant by the statutes which established them.
The first issue set down for consideration of the court is whether or not the promotions run by the 2nd to the 9th defendants in conjunction with the 1st defendant were games of chance as contended by the plaintiff or lotto as contended by the defendants. This issue calls for the examination of what constitutes a game of chance and what constitutes lotto. Indeed a game of chance is defined by section 72 of the Gaming Act 2006, Act 721. The section states that:
“Game of chance” includes a game other than lotto in which participants, in anticipation of winning a reward on the results of the game which depend on luck and which cannot be determined before the end of the game, pay money for the right to participate in the game”
The above definition shows, right from the onset, that a game of chance excludes lotto. However to constitute a game of chance participants must pay money as a condition precedent in order to be given the right to participate in the game. The payment of the money must be predicated upon the participants’ anticipation or hope of winning a reward on the results of the game. The hope of winning a reward depends purely on luck. The winning of the reward must be incapable of determination before the end of the game. The above constitutes the vital ingredients in a game of chance such that the absence of any one of them would automatically take whatever was being done out of the definition of a game of chance as stated under section 72 of Act 721.
Indeed, the participants in a game of chance may or may not be possessed of special skill in the playing of the game as stated in section 72 that ‘“gaming” means playing a game, whether of skill or chance or partly of skill and partly of chance for stakes hazarded by the players but does not include lotto.’
Again a combined reading of section 15 and the first schedule to the Gaming Act, Act 721 leaves one in no doubt that gaming involves the use of gaming machines or gambling machines that is why an application for a licence to operate a game of chance which can be made under section 15 of Gaming Act, ought to be made in the form prescribed by the first schedule to the Act. Under the first schedule the applicant is under obligation to supply the Commission with such information as the make of the machine, the serial number of the machine, the country of origin of the machine, the cost of the machine and the proposed location of the machine among others. Before this court it has not been suggested in the least that the defendants were engaged in the use of gambling machines in the conduct of the act complained off by the plaintiff. In the opinion of the court in so far as the activity engaged in by the defendants did not require the use of gambling machines, those acts or promotions cannot be described as games of chance for which they would require the license of the plaintiff.
On the other hand lotto is defined by section 56 of the National Lotto Act, 2006 Act 722 as
‘“lotto” means a scheme for the distribution of prizes by lot or chance especially a gaming scheme in which one or more tickets bearing particular numbers draw prizes and the rest of the tickets are blanks’
One distinctive feature of lotto, from the above definition, is the distribution of prizes by the drawing of lot or chance. The winners of prizes in lotto are determined by the drawing of lots on the tickets given to the participants. Again in lotto there is emphasis on the presence or presentation of tickets to the players. More importantly, these tickets bear particular numbers and as soon as a particular number on a ticket draws a prize the rest of the tickets go blank. That is to say, upon the drawing of a prize by the numbers of a particular ticket the other tickets which do not bear that number are deemed to have lost the draw and therefore win no prize.
It is also clear from the above definitions that whereas lotto may include ‘a gaming scheme’, games of chance cannot include lotto. Hence, lotto is broader in scope and outreach than a game of chance. Under the various definitions it can be said that a game of chance is a subset of lotto whereas the opposite is not correct.
The most important question to answer is whether or not the activity of the defendants complained about by the plaintiff can be said to amount to a game of chance. On this issue it has been submitted on behalf of the plaintiff that the defendants were engaged in a game of chance. The court is however of the view that one vital ingredient in the constitution of a game of chance is missing in the activity of the defendants which the plaintiff has taken to issue.
It is true that members of the public who took part in the promotion by the defendants hoped to win prizes and that their hope was dependent upon luck and that none of them was capable of determining the winner before the end of the promotion. However, in the opinion of the court, it cannot be correct that the deposits made by members of the public who responded to the promotion amounted to payment of money as required under section 72 of the Gaming Act.
Indeed, whenever money was paid as a condition for a service or goods, the money so paid was never available for the use of the person who paid it because the person was given goods or services equivalent to the amount paid. The court can take judicial notice of the fact that money deposited in a bank has always been available to the depositor who may withdraw same under certain terms. On the contrary, money paid as a condition for a right to participate in a game of chance has, as its consideration, the permission to participate in the game and was therefore not available to the person who paid same such that he could, at a future date, withdraw the amount paid. In other words, when a participant pays money for a right to participate in a game of chance, the money so paid could not be withdrawn by the participant at a later date because the right to participate in the game is the consideration for the payment of the money. On this score, it cannot be said that money deposited at the bank was coterminous with the payment of money as envisaged under section 72 of the Gaming Act.
Again in respect of the payment made for the fuel purchased under the promotions organized by the 9th defendant, the consideration for the payment made by members of the public was the supply of the fuel equivalence to them. It does not even follow that the fact that fuel to the minimum amount stated in the promotion had been purchased meant that the purchaser was motivated by the promise of a draw and the probability of winning a prize. Members of the public have the right, on a daily basis, to purchase fuel even more than what may have been announced in promotions and those purchases cannot be attributed to any promotion. For this reasons the court will hold that the promotions organized by the defendants herein cannot be described as games of chance in order to bring it under the purview or regulation or supervision of the plaintiff.
Nonetheless, even if the defendants’ promotions could be described as games of chance, the court will still hold that the 1st defendant is not precluded by the National Lotto Act from promoting or regulating such promotions. This is because section 56 of Act 722 defines lotto to include ‘gaming schemes’ which is one of the functions which the law permits the 1st defendant to discharge. Indeed section 2(4) of the National Lotto Act provides in no uncertain terms that:
“The Authority may, in consultation with the Minister, operate any other game of chance or enter into collaboration, partnership or joint venture with any person, society, association or corporate entity, to operate a game of chance in accordance with existing laws, but losses from the game of chance, the collaboration, partnership or joint venture shall not be compensated for by the State or from the Lotto Account provided for under section 32.”
It ought to be pointed out that whereas the Gaming Commission is deprived of the power to operate lotto by virtue of the provision in section 72 of Act 721, the National Lottery Authority established under section 34(1) of Act 722 is given clear mandate to operate games of chance by virtue of section 2(4) and 56 of Act 722 in addition to their core mandate to operate lotto stated in section 2(1) (2) the Act. The long title of Act 721 lends credence to the fact that the plaintiff lacks power to operate lotto. It states that the Gaming Act, is
“An Act to revise and consolidate the laws relating to casinos and other gaming activities other than lottery and to provide generally for ancillary matters concerning the gaming industry.”
It is trite that in interpreting a statute one may consider the preamble or the long title to that Act. See
Customs, Excise & Preventive Service vs. National Labour Commission & Attorney General  SCGLR 530
The plaintiff says the phrase ‘in accordance with existing laws’ appearing in section 2(4) of Act 722 means that the National Lottery Authority requires the consent of or permission from the Gaming Commission before it could operate games of chance. In the opinion of the court however the phrase ‘in accordance with existing laws’ used in section 2(4) of Act 722 is so used with reference to the mode of operation other than the right to operate. The right or authority to operate games of chance by the National Lottery Authority (NLA) is given by section 2(4) of Act 722 and the NLA may set in motion the operation of games of chance in consultation with the Minister of Finance.
However in operating the games of chance, the method or the procedure to be used is what the Act requires to be in accordance with existing laws. It is therefore not correct, in the opinion of the court, that the NLA requires permission, consent or power from the Gaming Commission before it could operate games of chance. Hence, as stated above, even if the promotions embarked upon by the defendants could be stretched to cover games of chance, the court holds that the said promotions are not outside the remit or the functions given to the NLA to discharge, and as such, the NLA did not breach any law by not obtaining authorization from the Gaming Commission. In fact the NLA need no authorization from the Gaming Commission to operate games of chance.
The plaintiff seeks as part of its relief a declaration ‘that the Plaintiff is the sole statutory institution mandated by the Gaming Act, 2006 (Act 721) to license and regulate the operation of Games of Chance in Ghana.’ The plaintiff also seeks a declaration ‘that any purported licenses granted the 2nd to 9th Defendants by the 1st Defendant to operate the games of chance, the subject matter of this suit, are unlawful. It is also the wish of the plaintiff that the court declares that ‘any purported partnership between the Defendants herein to operate the games of chance; the subject matter of this suit, without the consent or permission of the Plaintiff is unlawful.’
The functions and/or the objects of the Gaming Commission are aptly captured by section 3 of Act 721. The said section provides that
3. Object and functions of the Commission
(1) The object of the Commission is to regulate, control, monitor and supervise the operation of games of chance in the country.
(2) To achieve the object, the Commission shall
(a) make proposals for the formulation of policies on games of chance in the country;
(b) license companies that want to operate casinos and any other game of chance;
(c) serve as an advisory body to Government on betting activities in the country;
(d) receive complaints from companies and the public on matters pertaining to games of chance;
(e) monitor and secure the implementation of laws on casinos and any other game of chance;
(f) determine the minimum bankroll and ensure that licence holders keep and maintain the minimum bankroll provided for under section 23; and
(g) perform any other functions related to games of chance that the Minister for the Interior may determine.
From section 3(1) of Act 721 quoted above one of the objects of the Gaming Commission is to regulate the operation of games of chance in the country. Again the commission is charged with the object of controlling the operation of games of chance in the country. The Gaming Commission has, again as one of its objects, the responsibility of monitoring the operation of games of chance in the country. The Commission also has the duty of supervising. Section 3(1) of the Act ought to be read in conjunction with section 3(2) in order to appreciate and achieve the meaning of the section and thus the objects and or functions of the commission. Thus as far as the regulating or the licensing function of the commission is concerned section 3(2) (b) is very critical. That section states that ‘to achieve the object, the Commission shall license companies that want to operate casinos and any other game of chance.’ Thus the licensing object of the commission is discharged in respect of grant of licence by the commission to companies whose business is ‘to operate casinos and any other game of chance.’ Hence it is not just any body that is qualified for the grant of licence by the Gaming Commission. In order for the commission to grant licence for the operation of games of chance in the country, the applicant for such licence must, as a matter of law, be a company ‘that want to operate casinos and any other game of chance’. There is nothing to show that the defendants herein are companies that ‘want to operate casinos and any other game of chance’. The 2nd to the 9th defendants are banking institutions and the 9th defendant is an oil marketing company. The plaintiff admits this fact when it pleaded in paragraph 3 of its statement of claim that
‘the 2nd to 8th defendants are duly licensed banking financial institutions in the Republic of Ghana, while the 9th defendant is an oil marketing company distributing and marketing the shell branded fuels in Ghana.’
Hence, even if the 2nd to 9th defendants had applied for licence as the plaintiff wishes, it would have been unlawful for the plaintiff to grant them such licence because there is nothing to show that these companies ‘want to operate casinos and any other game of chance’.
In respect of the 1st defendant the law, Act 722, gives it the power to operate games of chance as already stated. A critical examination of the objects of the Gaming Commission as stated in the Act will reveal that the type of promotions engaged in and complained of by the plaintiff is not the type of activity that the plaintiff is empowered to regulate or licence. These are a one off activity which properly falls within the domain of the 1st defendant and not the plaintiff. What the plaintiff is empowered to regulate are companies in the business of the operation of casinos and other games of chance. Hence whiles it is true that the plaintiff is empowered to regulate or licence the operation of games of chance in the country, that object of the plaintiff, as stated above, does not extend to the activity or promotions carried out by the defendants. It follows also that the act of the 1st defendant in partnering with the defendants to run the various promotions is within the scope and powers granted the 1st defendant by section 2(4) of Act 722 and therefore lawful. The 1st defendant does, therefore, not require the consent or permission of the Plaintiff.
It seems to the court that the duty cast on the plaintiff in section 3 (2) (b) of Act 721 is confused by the
1st defendant with the power granted the 1st defendant under section 2(4) of Act 722. It is the opinion of the court that there is no conflict between these two sections. As already pointed out, section 3 (2)
(b) of Act 721 empowers the plaintiff to regulate and license companies that want to operate casinos and any other game of chance. Section 3 (2) (b) of Act 721 refers to the regulation and licensing of companies whose core business is the operation of casinos and other games of chance. Section 2(4) of Act 722 empowers the 1st defendant, the NLA, in consultation with the Minister, ‘to operate any other game of chance or enter into collaboration, partnership or joint venture with any person, society, association or corporate entity, to operate a game of chance in accordance with existing laws…’
If section 3(2)(b) of Act 721 and section 2(4) of Act 722 are read together, it would be clear that the 1st defendant has no right to grant licence to any company that wants to operate casinos and other games of chance because that function, is by law, the preserve of the plaintiff. Nonetheless, the 1st defendant has the power to partner or enter into collaboration or joint venture with any person, society, association or corporate entities to operate a game of chance. In so doing the 1st defendant does not grant licence; it only goes ahead to operate a game of chance or teams up with other entities to operate games of chance as long as the activity is not the core function of a company dealing with the operation of casinos and other games of chance.
Thus, any agreement entered by the 1st defendant with the other defendants cannot amount to and does not amount to a grant of licence by the 1st defendant to the other defendants to operate casinos and other games of chance. At best they ought to be seen in the light of section 2(4) of Act 722 as part of the collaboration or partnership which the 1st defendant has the statutory mandate to do. And in operating games of chance either by itself or in collaboration with other entities the 1st defendant does not require the license of the plaintiff. The 1st defendant has power under section 2(4) to embark upon such operation without the need for a license from the plaintiff. In the opinion of the court, if the Legislature intended that the 1st defendant, a statutory body, requires the license of the plaintiff before it could operate games of chance or partner with other companies in doing so, the Legislature would have expressly stated that requirement in the enabling Act, Act 722.
Even the relief sought by the plaintiff for “an order restraining the 1st defendant from ever partnering or purporting to partner 3rd parties to operate games of chance in Ghana without the consent or permission of the plaintiff herein” is against the clear provision of section 2(4) of Act 722 which gives
the 1st defendant the right to “enter into collaboration, partnership or joint venture with any person, society, association or corporate entity, to operate a game of chance in accordance with existing laws….” It is the position of the law that a court would not grant an injunction against a statutory body from the performance of obligations and or duties imposed on it by statute. See Attorney-General vs. Commission on Human Rights and Administrative Justice [1999-2000] 1 GLR 358 and Republic vs. High Court (Fast Track Division) Accra; Ex parte Ghana Lotto Operator Association (National Lottery Authority Interested Party)  SCGLR 372 at page 400 where the court stated among others that “when a body is entrusted with statutory discretion, the courts should be careful not to clog its exercise with injunctions”.
In the result the court will dismiss all the claims endorsed by the plaintiff on its writ of summons except claim number 2 which is hereby granted. The court will grant reliefs (a), (b), (c) and (d) sought by the 1st defendant and endorsed on the 1st defendant’s counterclaim. The court will however dismiss relief (e) of the 1st defendant’s counterclaim as well as the 3rd defendant’s counterclaim for general damages since the court is of the opinion that no such claim has been established. The court will award costs of GH₵5,000.00 in favour of each of the defendants against the plaintiff. The court will also make an order upon the Registrar of the court to release to the 1st defendant, forthwith, cash, the sum of GH₵410,000 which was ordered to be kept in an interest yielding account for the party that emerges victorious after this trial. The court will again order the Registrar to release to the 1st defendant any amount paid by any of the 2nd to the 9th defendants which has been deposited in an interest yielding account pending the determination of this case. The said amount shall be paid to the 1st defendant together with any interest that might have accrued thereon.