GENESIS MEDIA LTD vs. NATIONAL COMMUNICATIONS AUTHORITY [2018]DLECT4826

Date	2018-06-18
Suit No.	APPEAL NO: ECT/APP/001/2017
Citation No.	[2018]DLECT4826

JUSTICE DATE-BAH (PRESIDING)

PROFESSOR QUAYNOR

MR AKPADZI

NANA ADJEI AMPOFO (WITH HIM

GOLDA DENYO (WITH HER

[2018]DLECT4826
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													<main id="main" class="content" style="min-height: 60rem" >GENESIS MEDIA LTD<o:p></o:p>(APPELLANT/APPLICANT)<o:p></o:p>vs.<o:p></o:p>NATIONAL COMMUNICATIONS
AUTHORITY<o:p></o:p>(RESPONDENT/RESPONDENT)<o:p></o:p>(ELECTRONIC
COMMUNICATIONS TRIBUNAL)<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO:
ECT/APP/001/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 18TH JUNE
2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>NANA
ADJEI AMPOFO (WITH HIM <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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GOLDA
DENYO (WITH HER <o:p></o:p>

</div>CORAM: <o:p></o:p>JUSTICE
DATE-BAH (PRESIDING), PROFESSOR QUAYNOR, MR AKPADZI <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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</div>PROF.
DATE-BAH, JSC (RETIRED): <o:p></o:p>This
decision has been unanimously agreed on by the Tribunal. <o:p></o:p>THE APPEAL<o:p></o:p>By
a Notice of Appeal filed on 26th October 2017, the Appellant in this case
expressed its <o:p></o:p>dissatisfaction
with a decision of the Respondent dated 26th September, 2017 which &nbsp;imposed a fine of eight hundred and fifty
thousand Ghana Cedis on the Appellant. By that &nbsp;Notice of Appeal, the Appellant put forward 7
grounds of appeal, as follows: <o:p></o:p>a)
The decision imposing the fine of Eight Hundred and Fifty Thousand Ghana Cedis
on the Appellant is wrongful and invalid as same was based on a SCHEDULE OF
PENALTIES which is ultra vires it's (sic) parent Act (The Electronic
Communications <o:p></o:p>Act
2008 Act 775) which provides a lesser fine. <o:p></o:p>b)
The decision was also based on L.I. 1991 which to the extent that it imposes a
hasher &nbsp;(sic) fine than what its parent
Act prescribes is also ultra vires the said Act 775 and therefore invalid. <o:p></o:p>c)
L.I. 1991 and the Schedule of Penalties on which the fine was based was made in
&nbsp;contravention of Article 296 of the
Constitution of Ghana as same were unfair, not candid, arbitrary, capricious
and not made in accordance with the rule of law. <o:p></o:p>d)
The N7 of the Schedule of Penalties on which the Authority based its decision, required
that a request be made but no such request had been made before the fine was
imposed. <o:p></o:p>e)
The imposition of the fine was made in breach of Natural Justice as no opportunity
was given to the Appellant to defend its action or default assuming that the &nbsp;Appellant was in breach at all but which is
denied. <o:p></o:p>f)
The Schedule of Penalties was not laid before Parliament and if it was laid at
all, same was not published in the Gazette the day it was laid. It was
accordingly invalid as it contravened Article 11(7) of the Constitution of
Ghana. <o:p></o:p>g)
The whole conduct and action of the Authority in this matter were in breach of &nbsp;Article 23 of the Constitution of Ghana which
enjoins all Administrative Bodies to be fair and reasonable and to always
comply with requirements imposed on them by law." <o:p></o:p>THE APPLICABLE PRINCIPLES <o:p></o:p>Section
88 of the Electronic Communications Act, 2008 (Act 775) establishes the
Electronic Communications Tribunal to consider appeals against decisions or
orders made by the <o:p></o:p>Respondent
or to review a particular matter under a licence, Act 775 or the Regulations
under the Act and decisions of the Dispute Resolution Committee of the
Respondent. <o:p></o:p>Although
the Act makes provisions on the composition of the Tribunal and how its Rules
of Procedure are to be formulated, it is silent on the legal principles it is
to apply. <o:p></o:p>Section
91 provides that a person affected by a decision of the Respondent or the
Dispute <o:p></o:p>Resolution
Committee may appeal against it by sending a notice of appeal to the Tribunal
in accordance with the rules of procedure of the Tribunal. The Appellant is to
set out in the notice of appeal: the decision appealed against; the provision
under which the decision appealed against was taken; and the grounds of appeal.
Section 92, which deals with decisions of the Tribunal, provides that after
hearing an appeal, the Tribunal may: quash the decision; allow the appeal in
whole or in part; or dismiss the appeal and confirm the decision of the
Respondent. Section 92(4) provides that a decision of the Tribunal has the same
effect as a judgment of the High Court. <o:p></o:p>