27th March, 2019
By Kazeem Ugbodaga
A Federal High Court in Abuja has dismissed the suit filed by the Nigeria Employer’s Consultative Association, NECA, and the Nigeria Breweries against the National Lottery Regulatory Commission on whether sales promotion by companies fall within the regulation of the commission.
NECA and Nigeria Breweries had on 15 November, 2018 dragged the National Lottery Regulatory Commission to court, asking the court to determine certain issues regarding the power of the commission in regulating sales promotion and others.
Joined in the suit as defendants were the Attorney General of the Federation and the National Lottery Trust Fund. The Plaintiffs are NECA and Nigeria Breweries.
In the suit, the Plaintiffs sought the determination of 10 questions by the court, one of which was whether the National Lottery Act of 2005 and the National Lottery Regulation 2007 could be made in exercise of Federal Legislative powers under the 1999 Constitution of the Federal Republic of Nigeria as amended.
The Plaintiffs also wanted the court to determine whether ‘sales promotion’ to consumers of manufactured goods arising from the purchase of the 2nd Plaintiff’s (Nigeria Breweries) product otherwise titled “united we shine, win a trip to Russia” or any such promo come within the contemplation of :the business of the National Lottery” and consequently subject to the regulatory powers of the National Lottery Regulatory Commission.
The Plaintiffs, thus sought a declarative judgment that the National Lottery Act of 2005 and the National Lottery Regulation 2007 could not be made in exercise of Federal Legislative powers under the 1999 Constitution of the Federal Republic of Nigeria as amended and consequence void and of no effect whatsoever; and a declarative judgment that the ‘sales promotion’ to consumers of manufactured goods arising from the purchase of the 2nd Plaintiff’s (Nigeria Breweries) product otherwise titled “united we shine, win a trip to Russia” or any such promo could not come within the contemplation of :the business of the National Lottery” and consequently subjected to the regulatory powers of the National Lottery Regulatory Commission.
The Plaintiffs also wanted the court to award N1 billion to Nigeria Breweries against the Attorney General of the Federation and the National Lottery Regulatory Commission for damage to business reputation and business standing; as well as an award of another N1 billion to Nigeria Breweries against the Attorney General of the Federation and the National Lottery Regulatory Commission for trespass to its premises.
In delivering judgment, Justice Taiwo O. Taiwo said the two views formulated by the 2nd defendant’s (National Lottery Regulatory Commission) could conveniently resolve the dispute and accommodate all the arguments of the parties.
The two issues are: Whether National Lottery Act of 2005 and the National Lottery Regulation 2007 are laws made within the Legislative competence of the National Assembly and whether sales promotion by companies fall within the definition of National Lotteries and therefore subject to the regulation of the 2nd defendant.
In the first issue, Justice Taiwo held that the National Lottery Act of 2005 was in no doubt enacted by the National Assembly by the powers vested on the National Assembly to make laws as provided by the constitution.
“It will therefore be wrong to declare that the National Lottery Act was enacted in violation of the constitution. The National Lottery Regulation 2007 was made by the governing board of the National Lottery Regulatory Commission with the consent of the President of the Federal Republic of Nigeria as provided in section 55(1) of the National Lottery Act and as such, if these laws were made in violation of the constitution, it will not have seen the light of the day. To this end, I answer issue 1, I distilled from the issues on this point in favour of the defendants,” Justice Taiwo submitted.
On the second issue, the judge averred that the processes filed by the Plaintiffs in this suits revealed that sales promotion carried out by them had all the essential elements of a Lottery scheme or arrangement and that the argument of the Plaintiff that it did not sell tickets to participants was of no merit because the right to participate in the promo was limited to the customers who participated in the business of the 2nd Plaintiff within a specified period of time.
“From the totality above, I hold that sales promotion activities of the Plaintiffs for all intent and purposes falls within the purview and amount to Lottery business within the prescription of the National Lottery Act 2005 and the Plaintiffs can be classified as Licensee under the National Lottery Act and the National Lottery Regulation 2007.
“Consequently, I hold that I resolve this suit against the Plaintiffs (NECA, and Nigeria Breweries) and refuse all reliefs sought by the Plaintiffs. Consequently, I hereby dismiss the suit of the Plaintiffs in its entirety. I make no order as to cost,” Justice Taiwo delivered.