Bishop Daniel Obinim v Commissioner-General, Ghana Revenue Authority & Fidelity Bank Limited

Judgment

p. 1Source page 1• l IN Tltl~ SlJt•t~ltlOlt C ()lJlt'I~ 01: ,JUl>IC A~l~Ul{I~. IN ·1·111,: IIIGII COUR·1· OF ,JUSTIC I~ (COl\11l\1li:R C IAL 1)1\11SION) ACC l{A IIEl-11) ON ~-r~IOAY, ·r·11E 301·11 D ,\' 01◄" o c1·01Jl~lt 2020 l1EFOl(I~ 111~1{ (_.;Al)YSIIII· .Jus·r·1cF: AKUA SARllQJ\1,\,\ Al\10,\11 (l\11lS.) BISHOP DANIEL OBINII\1 U 11nu111bcrcd House Adjacent lnten1atio11al Gods,vay Cl1urcl1 A sl,ale)' Bot,ve, Accra VRS. 1. GHANA REVENUE AUTHORITY Ministries, Accra 2. FIDELITY BANK LIMITED Ridge Tow ers Ridge, Accra PARTIES: - ABSENT SUIT NO. CM/OCC/1033/2019 ••• PLAINTIFF ••• DEFENDANTS COUNSEL: - ADE RONKE ADE FARAKAN WITH ABENA POMAA BAMFO HOLDING BRIEF FOR B ~ MANU FOR 2 N D DEFENDANT PRESENT • COUNSEL FOR PLAINTIFF ABSENT • COPY

p. 2Source page 2JUDGM EN T 13y an application filed on the I l'h day of July, 2019, the I" Defcndant/Applicanl (I" Defendant) seeks an order of this Coun selling aside 1he Plaintiff7Respondenl's (Plaintiff) wril and dismissing his suit. lne grounds upon which the application is mounted are stated in the supponing affidavit. The crux of ihe I" Defendant's case is 1hnt the Plaintiff has failed to properly invoke the jurisdiction of this Court by his failure 10 comply with the provisions of the Re1·<'1111e At/111/11/stratiou Act, 2016 (Act 9/5) and Order 54 of the High Co urt Cfril Proc<'d11re Rules (Cl 47). F~r a beucr understanding of the issues raised by this application, it is apposite, I thmk, 10 give a brief summary of PlaintilT's case as disclosed by his Statement of Claim. The Plaintirrs case is that by a letter doted the 18'h day of December, 2018, the I" Defendant demanded payment of the su.m s of Seve11 H1111tlred a11d Nineteen Tho11so11d, Eight /J1111dred and Ni11ety Ghana Cedis (GH ¢7/9,890.00) and Twe11ty­ eight Tho11sa11tl, Ni11e /{11111/red 01ul Ni11ety Gho 11a Cedis (GHt28,990.00) respectively from Plaintiff. These sums were alleged to be taxes owed by Plaintiff for the period 20 I 4 · 2018 as assessed by the In Defendant's Commissioner-General. The said assessment was not only in respect of rent taxes alleged I)' owed on some Twen ty-one (21) unit shops situme at Terna but also in respect of Value Added Ta.x (VAT) charged for the business operations of a separate corporate entity known as the Abroso Guest House. Plaintiff complained that it was wrongful for the Applicant 10 make him liable for taxes owed by Abroso G ue.st House if at all, as the same is a separate legal entity and not under his management arnl control. In any event, the I" Defendant in or about July, 20 I 8 had in conjunction with the Economic and Organi1.ed Crime Office, already conducted an audit and assessment on hint and submiued an assessment in the sum of Thirty-11ine Thousand, Five H1111dred a11d Fifty-five Gho 11a udis (GH¢39,555.00) in respect of rental of the Twenty-one (21) shops for the period of2014 -2018. The Abroso Guest House had however been excluded from the assessment by the I" Defendant os it had been found not to be under the Plaintifrs control. Pursuant 10 this finding, the Pia inti.ff had proceeded to pay the en tin: amount assessed as being his true liability for the rental of the Twenty-one (21) shops to the I" Defendant. The I" Defendant had accordingly issued Plaintiff with receipts in acknowledgement o'r the said payment. The receipts are attached to Plaintiff's supplementary affidavit as Ex/1ibit A l. Plaintiff says that it was subsequent 10 these payments, that the I" Defendant again sent the letter of the I gm day of December, 2018, demanding payment of the an alleged tax liability of Seven /{11ndred and Ninetee11 Thousand, Eight Hundred and Ni11ety Ghana Cedis (GH ¢719,890.00). Hav ing already made good his tax liabilities to the I" Defendant, Plaintiff says he caused his assistan~ to visit the offices of

p. 3Source page 3l II Dc li:ndnnt in Tcmn wilh evidence of such pnyrnenls. U pon being prcscr11e<l wi1h the said c11idcncc. the I'' Dcfcndnnl is sni<l to hn11c udmillcu thnt lhc l'lainliff hod scukd nil his indebtedness to 1hc111 on<l appeared lo ha11c laid the mailer lo res! uniil sometime in April 2019. whe n the I'' IJcfcndnnl wrolc 10 Plainliff inviling him for a discussion on 1a.x linbilitics. 111e Plai111iff says he again c~uscd his assis1an1 to allcnd the snid mee ting with e,•idcncc of pnyn1cn1 11hcrcupon ii was again confirmed 1hnt the Plaintiff was not indebted to the 1" DcfonJnnt as he had fully sculcd his indcb1cdness in rcspec1 of the Twenty-one (21 J uni I shops. The I" Dcfcndan1 funhcr confinncd 1h01 the PlnintilTwns not liable for the VAT allegedly owed by the J\broso G uest House afier n perusal of1hc said Company's registration documen ts. To the Plaintifrs chagrin however. on the 3,J day of June. 2019 an a11cmp110 access funds from his accounts held wilh the 2nd Defcndanl bank was denied. Upon enquiring aboul the reason for this denial, the Plaintiff was informed by the 2 nd Defendant th31 i1 had been served wilh a Gamishmenl Notice by the C ommissioner­ Ge neral of the I" Dc lcndnnt ordering Lhc 2nd Defendant to withhold an am ount of St!l'tll H1111drtd a11d Sixt)'-11ir1e Tlto11sa111f, Ni11ety-Jfre Glta110 Cedis, Eighty-seven Ptst1<·os (GHf769,09S.87) and with a funher order that the 2nd Defendant responds to 1" De fendant within Seven (7) days of receipt of same. U pon conLacting the I" Defendant directly, he w115 10 his surprise informed that the Garnishment No tice was in respect of the same Twenty-one (21) unit shops and the J\broso Guest H ouse. which issue 10 the best of Plainlilfs know ledge and understanding had long been resolved. No explanation was given for I" Defendant's issuance oflhc Garnishment No1icc without notice to him. PlaintilTdescribcs the)>' Defendant's conduct as "111,jair, arbitrary, 0111/ opprl!Ssive, cnlc11lated to attack !tis perso11 011d harass hinr." Consequently, he prays Lh is Court for the following reliefs; a) A declar111io11 that, the Plaintiff has paid all taxes d11e and demanded by I" D ej1'11do11t Jronr the Plaintiff in rl'spect of rent taxes payable on tire Twenry- 0111! (21) shops/or the period o/2014 to 2018 and that; Ire does not 01<•t taxes, in rite s11111 of Se,·e11 flturdred and Sixty-nine Tltousand, Ninety-ji1•e Girona Ctdis, Elgltty-se,,/!11 Pesewas {Gfl¢769,09S.87) p11rporfedly represtnting rents taxes payable 011 the Block of Twtnry-one (21) units of slrops for the period 20 I ,f to 20 I 8. b} A /11rtlter declaration that, the Plaintiff is not personally liable for any Val11e Added Tax {VA 1J d11e a111f owed (if any) by Abroso G11est H ouse Linrited to the I" Dtfe11da11t. c} A11 order to set aside a11tllor strike out tl,e Garnishm ent Notiu issued at 10 nn,, 27'• day of J1111e, 20/9 by tire Com m issioner-Ge11eral of the Girona Revenue Authority; I" Defendant herein, directed at tire 2°' Deftndont ta pay to tire I" Defendant the sum of Seven Hu11dred and Sixty-11i11e Tlro1Lra11d, Ninety-jii,e Ghonn Ce,lls, Eighty-seve11 Ptstl"OS (GH t769, 095.87) as being 111rlnw/11I. J

p. 4Source page 4· /'I I (JIit/ (ISsessetl Ille Plai11tiff i11 d) A11 order lltat, rite J" Deft111la11t 11111•1111: out I el T (',/) .1, ,,,r 1 111 ck ,,r wt11t1.~t111e " 11111 ·• 'J respect a/the rents /u.tes pC1yable flll lttl! · " 'J ~ , 1 •fi 1 , 1 ,r201., 1 20/R 111 the s11111 fl/ Tl11rty-11111e Tllo11su11tl, s,,ops or t 1c pcr,01 '!! ~ ,, • Pl • ;rr ti Ffre ll11111/re1f out/ Flfty-jfre Gllo110 Cetlis (G/1(39,555.00) 011 0111t1;1 an. rite Pln/11tiff lw11i11g poitl same 10 the I'' Dcfc11da11t, the I" Deferulant ts estnppetl fro111 p11n11/11g tlte Plaintiff for Ille su111c rent taxes for the suitre period. e) ,111 order for perpe/1111/ i11j111rctio11 restroitriug 1/te I" Defe11da11t either by itself, officers n11d age,us fro111 pursuing, tlema11di11g 011dlor talii11g front the Plni11tiff. rents ta.res payable 01111,e Block of Twe11ty-011e (21) 1111its of sftops for the period of 2014 to 2018 n11d also: poy111c111 of t111y Vol11e At/tied Tax (VA 7J due 011d owed by Ahroso Guest /-louse Limited (if 011y) perso11olly fro111 the Plai11tiff. I) A II order for perpetual i11j1111ctio11 restraining rite 2•d D efendant fro111 plac/11g lien 011 t!te Plni111iff' bank acco11111s 01,d from p11yi11g u11y of rite f11111ls held /11 the Pln/11tiff's bo11k acco1111ts and fixed deposits to tlte I" Defe11do11f /11 respect to the Gor11isl1111e1111Votice issued at JO 0111, 21• day of J1111e, 20/9 by tlte Co111n1lfsio11er-Ge11ero/ of the Glto11a Re1'1!,1111e Authority, J" Defe11da111 lterei11 011d it, respect of 011yf11ture Gnr11islt111e111 Notice issued i11 respect af the sn111e re111s tu.1:es poy11ble 011 rite Block ofTwe11ty-011c (21) 1111i1s of shops for tlteperiod 20/4 to 2018 011d also poy111e11t of 011y VulueAddetl Tax (VA1) due n11tl 011,ed by Abroso Guest /louse lin,ited (if a11J~ wit/tout recourse too Co urt Order. g} A11 order ti/reeled or tlte 2"' Defe111la111 to re111ow! a11y lie,, a11dlor charge ploce,I 011 the Ploi11tiffsfl1111/s i11 ltis bank occo11111s a /sic/ 011d nil otlter fu:ed deposit i111·est111e111 held with the 2°' Dcfe11dont ond 111ake all/same accessible to P/a/11tiff. h) P1111itfre Dat11oges against the I" Defendo111 for 1111/awful issuance of 1/te Gornislt111en/ Notice. i} Costs, inc/11di11g Solicitor's profess/0110/ fees. It is this writ that the I 11 Defendant seeks 10 have set aside and dismissed. In the I" Defendant's opinion, an examination of the Plaintifrs \Vril and Statement of Claim will reveal that the Plainlifrs complaint relates 10 a tax decision arrived at by the I" Defendant. In light of this, the I" Defendant contends that the PlaintilT ought 10 have followed the dispute resolution procedure prescribed under Act 915. Specifically, that set out under Sections 42 to ,u of the said A ct. These provisions require that Plaintiff exhausts the proce.durcs and mechanisms under the said Act before approaching this Court Having failed to do so, the Plaintiff suit was premature and incompetent.

p. 5Source page 5ll1c l'lni111i1T h11wc\'cr chnllcngcs 1hc hasis 111' lhc I'' l>cfcndnnl's opplicn1ion. 'fhe cn~c or lhc l'lninl !ff in my 1111tlcrs111111ling is 1h111, !here cxis1, nu lnx llcci~i11n which sh1111IJ rcq11i1'1: the l'l11in1ill'111 ,11rnply wilh lhc pr11,cd11rc 1111<1 rncchani,m, loitl duwn under Srrfi/l/1.f 41 111 44 nf Art 9/J before npprnnching lhi., Court. ·1 he J•Jain1irr m~intain~ 1hn11hc c~scncc 11J"his 11c1i1111 is 110110 chullcnl!c n lox decision hul 10 invoke the ~11pcrvi~ll1')' jurisdic1ion of 1his Court in rcspccl of 1hc unluwful cnm.luel nr 1he 1\pplkanl. D1K11mcnL~ rdi:rrcd lo as "l:.~,·h/hlts 11 11111/ 11 series," have been an.ichcd in suppm1 of1his con1c111ion. I would 11111c 1h01 the PlainlilT in breach of Order 2f) llulc /4(/) of Cl 47 failed 10 c);hibi1 some of1hc documcnls allochcd lo his Supplcmcnlury Arfidavi1. Rule 1, (/) of Order 10 Slnlcs 1h01; "14(/) A ny tloc11n1e11r to he used in co11)1111ctl1111 with 1111 1,jf11/11vlt shall br exhibited 1111d nnt 111ercly 11111,exetl nr att11cl1ecl 111 the 11flitla1·it." I lowc,·cr. only one of Lhe receipts referred 10 in P11r11gr11pl1 J or the Supplementary Anidavit has bl-en marked ''A/". The rest of1hc receipt5 have been merely auachcd 10 Lhc Plaintilrs affidavit. Again, the PlaintifTfailcd 10 anach a certificate as required by Ort/er 10 Rule I,() (1). The said prO\'ision states that; "(1) A ny exhibit to 011 oflida,•it shall be Identified by a certificate of tire person before K'honr it ll'OS swor11." It should be noted that the word "shall" used in the said rules makes these requirements m andatory. Thus. Plaintifl's failure 10 comply with the said rules could by vinue or Order 81 (2) (a) of Cl 47, have resulted in the said process being set aside. However, in light of I" Dcfendan1's omission to raise an objection to this non-compliance, it should be deemed to have waived same. I therefore proceed 10 dete.nnine the application on its merits. Now , in order to ascenain whe ther or not the jurisdiction of this Coun has been properly invoked, I think the basic mauer for determination is \\•hcther or not the Plaintiff's suit constitutes a tax dispute within the meaning of A ct 915 or is simply an ac1ion that seeks to invoke the supervisory jurisdiction of this Court. As a first step 1hcrc is the need lo gain an understanding of what amounts 10 a tax dispute under AC/ 915. For our purposes the relevant provisions are Sections 41 to 44 of Act 915. I intend only lo reproduce portions of the said provisions that I consider neccss3ry for the determination of this application. From a reading of the provisions falling under the heading "DISPUTE RE SOLUT ION", a tax dispute should be understood 10 have arisen when a person raises an objection to a tax decision of the Comm issioner-General. Whal then is a tax decision? Section , I defines a tax decision as; I

p. 6Source page 6. G I 11,fcr a ttL1: (11,v l11c/111/i11" 1111 " .•.. a decisio11 111111/e hy the Co 1111111sslo11er- e11er11 11 ,, • 0 assess111e11t nr n111issio11 •.• " In ligh1 of Plain1in's comcntion 1hoi there is no tax decision for ~vhich he shot~ld be required to exhaust the nmndn tory procedure scl oul under Sectw11 42: there 1s the need to ascertain whether or 1101 on the facts. n lax decision wos made in the Instant case. 13y Sub Scctin11 1 or Scctio11 4/ (.1·11pra), (1)11 tax ,lecisio11 is 11u11/e o) i11 the case of 011 assessment 111at/11 by tire Co111111issio11er-Ge11eral wheu tlte 11otice af assess111e11t is served 011 tlte taxpayer: b) /11 t/re case of auy otlter tax tlecisio11, wlre11 tire Co111111issio11er-Ge11erol sen1es tire affectetl perso11 with writ1e1111otice oft/re tleclsio11 •••••. On the PlaintilT's own showing, particularly by Par11gr11plrs 5 and 6 of his S1a1cmcn1 of Claim nnd £.xlrihit A2 anachcd 10 his Supplementary Affidavit, he wns by a lcncr dated the 18"' day of December, 2018 requested by the Commissioner-General 10 pay on amount of Sev1111 H1111tlretl a11d Niuetee11 T/ro11sa11d, Eig/rt Hundred and Ninety Glro11a Ce<lis (GHtl/9,890.00) in full within "lnirty (30) days. The fact thnt this constituted service or o notice of assessment on Plaintiff (within the meaning of Section 41 (2)) is quite clear to me and needs no further elaboration. I am therefore unnblc to agree ,vith Counsel for Plnintiffthat no tax decision was made in this cnsc. Again, what can be inferred from the Plaintiff's conduct afier being served wi1h £d,ibit Al is that he disagreed or objected Lo the decision of the I" Defendant. This is because instead of proceeding to comply with same, he sent his nssis1an1 on two separate occasions 10 the I" Defendant's onices with the necessary documentation to prove that he was not liable as Exhibit A2 sought 10 suggest. It is significant to note that the Plaintifrs claim that officials of the I" Defend11111 had admitted or conceded that he had duly paid all outstanding taxes and therefore did not owe 1he 111 Defendant is not borne out by any evidence on record. Indeed, by the record the I" Delcndant's conduct ot all times material to this suit negatives any such . concession. In any case, my task 01 this stage is not to unravel whether or not the I" Defendant was justified in serving Lhc Pin inti ff with Ex/riblt A2. It is to ascertain whether the papers before me disclose a tax dispute or an intention to invoke the supervisory jurisdiction of this Court. What is clear from the pleadings and the reliefs endorsed on the Plaintiff's ,vrit is that, it is his disagreement with the tax decision of the 1" Defendant's Commissioner• General that hns provoked the instant suit. Shorn of verbiage, all the reliefs endorsed on Plaintifrs writ seek lo invite this Court to reverse the tax decision or the 111 Defendant. The fact that Pluintiff describes the conduct of the Applic.ant as unfair, arbitrary and oppressive in his pleadings does not convert this action into one invoking the supervisory jurisdiction or this Court. In other words, this Court has not been called upon lo decide whether or not the conduct

p. 7Source page 7of 1hc Applicanl was capricious. oppressive and nrbhrory. Indeed, nowhere in his \\'ril docs Plain1ilT seek a dccbrnlion 10 1hn1 effect TI1c dcmnnd by the I" Defendant for the paymcnl by Plninliff of lhe sum of Se11e11 Jl11ndretl anti !l'ineree11 T/101u/111tl, £igltr //11111/red 1111d Ninl!fy Gltu1111 Cedis (Glftl/9.890.00) is principally a lax decision. II is pursunnl lo lhis decision that the I" Dcfcndanl (rightly or wrongly) exercised his powers under Secrio11 60 to garnish the Plnintin·s account. The denial by lhc PlainlilT 1ha1 he owes the amount alleged by the 111 Dcfcndnnt in m y understanding constitutes nn objection which brings the present suit within the purview ofSecfi/111 42 of Act 9/5. Secrio11 ,t] of Act 915 states thnt; "Subject to a tax law to tlte conrr"ry, "person dissatisfied with a tax dtcisiorr that directly affects rite person ,rray lodge 1111 objection to the decisiorr with tire Co111111issio11er-Ge11erol witfti11 JO Days of being 11orijied oftfte tax decisiorr." Consequently. the Plaintiff was by law required to first mount his challenge to the tax decision by lodging an objection to same with its Com missioner- General. ll is only upon dcte.nnination oflhe said objection by the Comm issioner that the Plaintiff could approach this Court by way of an appeal under Section 44 if dissatisfied with same. Order 54 of C 14 7 sets out the procedure to be followed in such circumstances. lt b~rs emphasis that Sections 41 to ,14 of Ad 915 do not operate to oust lhe jurisdiction of this Cou rt. However, the dispute resolution procedure set out under A ct 9 J 5 is mandatory and cannot be side-stepped by an aggrieved taxpayer e.xccpl for "substantial reasons." See the oft-cited case of BOYEF/0 v NT/IC PROPERTIES {1996-97/ SCGLR, 531. In the Bosefio case (supra) the Supreme Court emphasized that; " ... the law is clear that wl,ere 1111 enactnrent has prescribed a special procedure by which so111erhi11g is to be done, it is that proctdure alone tltat has to be followed." I also fail to appreciate the basis for Plaintiff's complaint that the I" Defendant issued the Garnishment Notice w ithout notice to him. I say so because Section 60 of AcJ 915 does not make the notification or service of the Ga rnishment Notice on the taxpayer, a prerequisite to serving the third party debtor. Wh at s11b section 2 states is that the Comm issioner-General shall "as soorr 11s practicable after service of tire notice 011 tire third party debtor" serve a copy of same on the t.axpayer. Thus, even though one would expect the Commissioner-General to serve the t.axpayer ,vi1hin a reasonable time, the law allows the notice to be served at the Comm issioner's convenience and not before or at the time ii is served on the third party debtor. I am therefore persuaded by the I" Defendant's contention that the present suit is not properly before this Court. That said, assuming without necessarily admitting that the Plaintiff by the present suit sought to invoke the supervisory jurisdiction of this Court, it is well-settled that J

p. 8Source page 8the 111odc l)f co111111c11cc111c111 of ~t1cl1 :111 ucti<1n sl1ould l,c l-,y an Application fcJr Judicial Rc,,ic,,· t111dcr Or,lcr 55 of· Cl 4 7 t111d not by \Vrit of Surnmon s. "Inc fact that tl1c l1 la i11ti tl' seek~ <lcclnrntor)' rel icfs ti id not ncccssari ly require the issuance of a Writ as tl1c Cou11 is c1111,a,,,crcd under R11/e 2 to make declarations upon hearing such an application. In tl1e prcn1ises it is m)' considered opinion that the Plaintiff has failed to properly in,·oke tl1c jurisdiction of tl1is Court o,ving to his failure to exhaust the mandatory do111estic remedies set out u11dcr Act 9 J 5. Upon exhausting the said remedies, the Plaintiff, if dissatisfied ,,,ith tl1c decision of tlic Commissioner-General, is to approach this Court b)1 ,,,a)' of appeal as provided for by Sectio11 44 of Act 9 I 5 and Order 54 of Cl 4 7 and not b)' ,,·rit. Consequently, the 1st Def end ant's application is granted as pra)1ed. Plaintifrs ,,,rit dated tl1e 4th day of July, 2019 is hereby set aside and his suit dismissed. Needless to say, tl1e reliefs sought against the 2nd Defendant fall a,,,a)' ,,·ith the dismissal of the suit. (SGD) MRS. AKUA SARPOMAA AMOAH JUSTICE OF THE HIGH COURT O PY •