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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-
(i)
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be deemed to have been revoked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, 1960
of (CA 7), except so far as may
be otherwise provided in an Act,
the Act comes into operation at
the commencement of the day on
which it is published in the
Gazette. Therefore Act 722
came into force on 29 December
2006. Ninety days from 29
December 2006 was 30 March 2007.
Therefore as of 30 March 2007
the licence of the plaintiffs
(who have all refused to apply
to the applicant to be licensed
as Lotto Marketing Companies) to
operate private lotto was deemed
to have been revoked and any
operation by them of private
lotto was illegal. Thus
the status quo ante at the
commencement of this action was
that Act 722 prohibited the
Interested Parties from
operating private lotto.
X X X X X
X X X X
18. And therein lies the
error of law complained of. That
a judge knowing very well that
the law has made the carrying on
of a particular business illegal
authorizes a person to carry on
with prohibited business pending
the determination of their
appeal is not in keeping with
the judge’s duty to uphold the
law. The Respondent did not have
the jurisdiction and power to
authorise anybody to breach the
law and any such decision will
not only be a nullity but also
unreasonable”.
The interested parties have not
shown that they have applied for
a licence within the statutory
period to operate as Lotto
Marketing Companies under Act
722. Clearly then the effect of
the interim injunction
protecting their “work or
property rights” is to
grant them, so to speak, a
temporary judicial licence to
operate in the lotto business.
The Courts and Legislation.
It is communis opinio
among lawyers that the
courts are servants of the
legislature. Consequently any
act of a court that is contrary
to a statute, is, unless
otherwise expressly or impliedly
provided, a nullity, see
Regina v Sarpong (1960) GLR
15 C.A., Mosi v Bagyina(1963)
1 GLR 337 S.C, Republic v
District Magistrate Accra, ex
parte Adio (1972) 2GLR 125
C.A.,Okomfo Afuah v Sarbah
(1974) 1 GLR 147, Adjei v
The Republic (1977) 1 GLR
156, Agbeko v The Republic
(1977) 1 GLR 408.
Consequently the courts have
been bound to hold that the
courts’ own law, the common law,
must give way to statute. Thus
in Addai v Donkor (1972)
1 GLR 209 C.A. at 228 Azu Crabbe
JSC said:
‘In R v Morris (1876) 10 Cox
C.C. 480, Byles J said at p. 485
“[I]t is a sound rule to
construe a statute in conformity
with the common law
rather than against it,
except where or so far as the
statute is plainly intended to
alter the course of the common
law.’
Judicial Discretion.
In this case the trial judge
considered the application for
interim injunction only in
accordance with the typical
common law principles for
determining an application for
interim injunction. Thus he
said:
“I think that there are
triable issues between the
parties and the doors of
justice must not be closed.
Having made this finding, I
think that it is only fair to
maintain the status quo ante
pending the determination of the
appeal by the Court of Appeal
because more hardship will be
occasioned if they are made to
stop work pending the appeal.
In the final analysis I hold
that there are triable issues
raised to be tested in the Court
of Appeal between the parties
herein and I therefore
proceed to restrain the
defendant/respondent from
interfering with the work or
property rights of the
applicants pending the final
determination of the appeal”(emphasis
supplied).
However, the Courts have,
consistently, insisted that it
is their duty to observe and
enforce the statutes of the
land. As long ago as 1890, in
Attorney-General v Emmerson
(1890) 24 QBD 56 C.A. at 58 Lord
Esher M.R. dealing with O.LVIII,
r.6 of the English Procedure
Rules in respect of which it was
strenuously contended that there
was a firmly established
judicial practice as to how the
discretion therein conferred
should be exercised, said:
‘The Courts have no power
to alter the effect of the rule;
no authority to establish any
practice in conflict with the
rule, and no power to say that
it shall be binding upon the
Courts. I decline to take any
other view than that the Court
has discretion in each case.’
Concurring, Lindley LJ at p. 59
said:
‘I am of the same opinion.
I must protest against the
notion that any Court has a
right to lay down a rule which
shall limit the discretion given
by Order LVIII., r.16.
The Court must decide upon the
particular facts of each case.
It is not competent for
any Court or judge to lay down a
rule which shall limit the
exercise of that discretion. I
am aware that it has been done-
one can see that it saves a
judge trouble, if he can satisfy
himself that such a practice
exists- but it has not
been rightly done.’
See also Akufo-Addo v
Quarshie-Idun (1968) GLR 667
C.A.(Full Bench).
In Republic v High Court,
Kumasi, ex parte Khoury
(1991) 2 GLR 393 SC at 399
Francois J.S.C. said “This
court has a duty to enforce the
Statutes of this land”.
Similarly at 403, Edward Wiredu
J.S.C. said: “I think any
attempt on the part of any court
to entertain any application of
the type under consideration
(i.e., after a party has lost
twice) where the losing party
did not seem to respect time
limits imposed by the law, would
be defeating the intended
purpose of the legislature.
Courts are enjoined to insist on
time being observed strictly…”
Similarly, In Industrie
Chimiche Italia Centrale and
another v Alexander Tsaviliris &
Sons Maritime Co and Others The
Choko Star (1996) 1 All ER
114 QBD at 128 Manche J said:
‘The problem about
invoking any inherent
jurisdiction in the present
situation, is that, if
the existing rules of court are
not wide enough to cater for it,
then there is a statutory
prohibition in s.35(3) of the
Limitation Act 1980 upon the
court allowing the proposed new
claim. I do not presently see
how any inherent jurisdiction
which would otherwise exist
could survive or be exercised in
the face of that prohibition.’
(Emphasis supplied).
It is not surprising therefore
that it has been held by this
court that when a body is
entrusted with statutory
discretion the courts should be
careful not to clog its
exercise with injunctions. See
Attorney-General v Commission
on Human Rights and
Administrative Justice
[1999-2000] 1 GLR 358 S.C. This
however does not mean that an
interim injunction cannot lie
against the improper use of
statutory discretion see
Amoah and Others v West African
Examinations Council and Another(1971)
1GLR 63.
In this case however, Act 722
has imposed a statutory ban on
private lotto operators unless
they comply with its provisions.
As recently as last week in
The Republic (Respondent) vs.
High Court, Koforidua Ex parte:
Dr Kofi Asare(Applicant) and 1.
Baba Jamal Mohammed Ahmed, 2. Mr
Samuel Abrokwa 3.Mr Basil
Ahiable, 1ST
Interested Parties, and The
Electoral Commission, No 8, 8th
Avenue Ridge, Accra 2nd
Interested Party, Civil
Motion J5/22/2009, dated 22nd
July 2009, the whole thrust of
my judgment was that it is not
open even to a court to exercise
its jurisdiction in such a
manner and in such circumstances
as would contravene the
constitutional order of the
country as laid down by the
provisions of the1992
Constitution of Ghana.
Conclusion
In this case the question of the
constitutionality of Act 722 has
been settled by this court, and
even if it were not, a statute
is presumed to be valid until it
is otherwise decided. Therefore
the proper exercise of the
discretion in this case would
have been to refuse the
injunction, otherwise the
interested parties would thereby
be assisted by the court to
commit an illegality. Thus in
Canadian Pacific Railway v Gaud
and Others (1949) 2 K.B. 239
C.A., before granting an
interlocutory mandatory
injunction in that case, the
Court went to great lengths to
ensure, in the words of Cohen
L.J. at 248 that:
‘without deciding anything as to
what may happen on further
evidence, there is no
evidence on which we could hold
that by granting the injunction
we should be assisting the
plaintiffs in committing an
illegal act.’
Even as regards the parties’
private rights he said:
‘The fact that the order would
involve expelling
Canadians from a Canadian ship
is a factor for the judge to
consider when exercising
his discretion; but he
must also consider whether, if
the evidence shows that the men
are trespassers, they should be
allowed to continue their
trespass to the prejudice not
only of the landowners, but also
of the Port of London Authority
and those seeking to be supplied
with the food which the ship was
bringing to this country.’
Continuing, he said at 249 thus:
‘Mr Collard’s third point is
that the defendants are not
trespassers, on the ground that
their articles have never been
validly terminated. I desire to
deal wit this point as shortly
as possible; I do not want to
say anything to prejudice the
position of the parties if the
action comes to trial. It is
perhaps enough to say that
on the evidence as it stands,
it seems to me to show that the
defendants had committed a clear
breach of the articles. Assuming
that we decided that the
plaintiffs were also in breach,
in negotiating with the rival
union, that does not justify the
defendants in continuing to
refuse their services and thus
commit further breaches of the
articles. Two wrongs cannot make
a right…’
All this upholds the principle
in Asare v Brobbey (1971)
2GLR 33 C.A. in which at 338
Archer J.A. (as he then was)
delivering the judgment of the
Court of Appeal said: “In
Phillips v Copping
(1935)1 KB 15 at p. 21 C.A.,
Scrutton L.J. said “it is
the duty of the Court when asked
to give a judgment which is
contrary to a statute to take
the point although the litigants
may not take it.”’
Were the trial judge to direct
himself in the foregoing terms
he would not have grated the
injunction. That grant was
ultra vires the
court, in that it was in excess
of the court’s jurisdiction and
consequently also an error on
the face of the record.
I would therefore grant this
application.
W. A ATUGUBA
(JUSTICE
OF THE SUPRME COURT)
DR. DATE-BAH, JSC:
This application for
certiorari is yet another
stage in an acrimonious saga
that has unfolded between the
National Lottery Authority, the
applicant herein, and the Ghana
Lotto Operators Association and
some of its constituent members,
the interested parties. A new
regulatory regime, embodied in
the National Lotto Act, 2006
(Act 722), has been enacted by
Parliament, which the interested
parties find unacceptable. This
has led to a spirited legal
contest between the interested
parties and the applicant which
has resulted in aspects of their
dispute appearing before this
court no less than three times.
The present application flows
from the grant of an
interlocutory injunction by His
Lordship Justice Asante in the
Fast Track High Court I, Accra.
The facts leading to the grant
of that injunction have been
stated by my brother Atuguba JSC
with his usual accuracy and
will, therefore, not be repeated
here.
I agree that the order made on
the 1st day of April
2009 by his Lordship Justice
Asante granting the Interested
Parties an interlocutory
injunction pending an appeal
should be brought to this court
and be quashed. The learned
judge acted in obvious excess of
his jurisdiction. No judge has
authority to grant immunity to a
party from the consequences of
breaching an Act of Parliament.
But this was the effect of the
order granted by the learned
judge. The judicial oath
enjoins judges to uphold the
law, rather than condoning
breaches of Acts of Parliament
by their orders. The end of the
judicial oath set out in the
Second Schedule of the 1992
Constitution is as follows:
“I will at all times uphold,
preserve, protect and defend the
Constitution and laws of the
Republic of Ghana.”
This oath is surely inconsistent
with any judicial order that
permits the infringement of an
Act of Parliament.
Furthermore, an interlocutory
injunction is an equitable
remedy and it is unimaginable
that a court of equity would
allow its effect to permit a
party to perform an illegal act
and to shield the party from the
consequences of the breach of a
statute. Even a contract to
perform an illegal act will be
declared void by the courts. I
do not see how the same courts
can find their way clear to
permit, by injunction, the
performance of acts prohibited
by an Act of Parliament which
has been declared by this court
to be constitutional.
In the old English case of
Great Western Railway Company v
Oxford, Worcester and
Wolverhampton Company (1853)
43 ER 133; 3 De G.M & G 341,
Lord Justice Turner expressed
the view, in a case in which an
injunction was being sought,
that:
“The jurisdiction to interfere
is purely equitable, and it must
be governed by equitable
principles. One of the first of
those principles is that parties
coming into equity must do
equity; and this principle more
than reaches to cases of this
description. If parties cannot
come into equity without
submitting to do equity, a
fortiori, they cannot come
for the summary interference of
the court when their conduct
before coming has been such as
to prevent equity being done.”
In my view, the interested
parties in this case have not
done equity before seeking
equity, contrary to the
equitable maxim that he who
seeks equity must do equity.
Knowing full well that that
there is a valid Act of
Parliament in place that
requires any lotto operator to
have a licence before it can
operate a lotto business, they
have sought an injunction that
will enable them to defy that
Act of Parliament with impunity
until the determination of their
appeal. That is not coming to
equity with clean hands! That
is another of the maxims of
equity which is applicable in
this context. The interested
parties’ “unclean” behaviour in
defying an Act of Parliament,
which has been held by this
court to be constitutional,
should disentitle them to the
equitable remedy of injunction
which the court below has
granted them. But, this is a
ground which is probably more
suited to serving as the basis
for an appeal, rather than to
the invocation of certiorari.
The main ground in support of
certiorari, as indicated
above, is that the court below
exceeded its jurisdiction when
it made an order whose effect is
to allow the infringement of an
Act of Parliament. Accordingly,
I agree that certiorari
lies on the facts of this case.
DR.
DATE-BAH
(JUSTICE
OF THE SUPRME COURT)
J. ANSAH
(JUSTICE
OF THE SUPRME COURT)
ANIN
YEBOAH
(JUSTICE
OF THE SUPRME COURT)
P. BAFFOE-BONNIE
(JUSTICE
OF THE SUPRME COURT)
COUNSEL:
KIZITO BEYUO FOR THE APPLICANT
AURELIUS AWUKU FOR THE
INTERESTED PARTIES
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