Republic v Ghana Revenue Authority, Ex parte Export Finance Company Limited (Universal Merchant Bank Limited, interested party)

Judgment

p. 1Source page 1,--·. •· • IN Tl lff, HI/ Pl~IUOI( < 'OI IH'I' < W ,If IIH<:A'I I lit·~ IN '1'1111'. IIHJII ('Olllfl' 01r ,IIIH'l'lt:I~ < :oMMl ~U<:IAL IJIVHH'>N I 11,:1,u IN A('( 'U A ON Wl·:ONl".HUA Y Tl fl~ H 111 HAY 01' ,JJJI, V, 2tt20 IIIWOUI(, 111,"I 1,0,U)Nff f Jl <:1~ou<;1i: I(, K<JOM HON ,.,,, ------~-----------~-~---~----------------------- -- IUWIIBl.lt vns ,:11ANA ,n:v,,~NIJI~ A(JTIIOIUTY EXflOlfl' FINANCJ•~ COMPANY LTD lJNIVF.HSAL MEnCIIANT HANK ' .. ,,, ,, IH:Hl'ONl>P-NT , , , . , ,,, Al'l'LIC:ANT ......... JNTJ':Hf,,STED l'AHTY ,JlJ0GMf.NT The applicant herein has invoked the supervisory jurisdiction of this court to quash the administrative decision of the Commi ssioner General of G hana Revenue Authority (hercinaller referred to as "the Respondent"), dat.c<l the 26c 1 day of February, 2019 together with the notice of"GARNJSHM EN T ' garnishing the account of the applicant with the Universal Merchant Bank (Kwame N krumah A venue Uran ch), Accra (hereinafter referred to as the "Interested Party"). The facts as presented arc that sometime on the I 0th day of December 2018, the Respondent by a notice of assessment annexed as exhibit A requested Applicant to pay the amount of GH¢2,502, 701.54 and GH¢57 , 113 .04 being its Tax Liability and NFSL liability for the year 20 I 3 and October 2018 year of Assessment. The Applicant by a letter dated I 7th December 20 I 8 objected to the assessment which letter has been annexed as (Exhibit C). It is the case of the Applicant that the Respondent by Exhibit D which is a letter dated 2JS1 December 2018 duly

p. 2Source page 2■ . . d was therefore required to ha.,,~ ncknowlcdc_cd receipt of the letter of ob_1ect1on an . d h b' t' - . . . . s of havong receive t e o ~ec ion taken n decision on the objection withm 60 day . 2016 (A l Administration Act, c in nccordnncc with Section 42(2) of the Revenue 915). I ing with 60 day 1. Applicant contends thnt Respondent rather than comp Y . . ti e 26'h day of period to tuke a decision. disallowed the dec1s1on on 1 . 1 d • • vas void and of February 2019 by Exhibit E for wh1c 1 reason the ec1s1on \ no legal etTcct. Respondent thus proceeded to garnish Applicant's account with the intereSled party by a letter dated 261h July 2019 as shown from Exhibit G and it was thereafter that on the 8'h day of August 2019 by Exhibit F, the Applicant wro&e to the Respondent infonning the Respondent that it (Applicant) had treated the Respondent's conduct of not having complied with the mandatory statutory period of 60 days as an allowance of the Applicant's objection on 17th December 2018 and therefore its actions were void. Respondent on the other hand contended that the Applicant did not comply with the mandatory conditions for objecting to a Tax decision being the payment of thirty percent (30%) of the tax assessed for which reason the Applicant's letter of objection dated 17th December 2018 could not be deemed a legal objection. Respondent further contends that the failure of the R espondent to take a decision on objection w ithin 60 days rather allows a party such as the applicant to treat the non-response as the Respondent having disallowed the objection and thereafter the remedy opened to the person is by way of a Tax Appeal. Article 141 of the 1992 Constitution has put the judicial review [supervisory] jurisdiction of the High Court on a statutory basis. The article circumscribes that jurisdiction and limits it to cover only lower courts properly so-called and al'by other lower adjud~cating authorities, such as, for example, a public arbitration panel. Dt provides as follows:

p. 3Source page 3,r 11111// l'o11rt ·'""" //ave ,t1perv/ttlfY Jur/,d/ct/011 over ull "Tl lmv,•r ''"'"'·' 11111/ 1111y /,Jwer n11Jt11//c111/1111 a111J,or/ty; ,,,,d ,noy, 1 " I lie cxerd,,e ,,f 1/wl J11r/v,l/ct/m1, l<N"' order• o111l d/reet/fJIIN for t J, e l""I"'•" ,,f cufi,rc/lll/ or .,ec,trlll/1 rlre ,i,Jt1rcem ent of Ill .111per,1/.vory P"""·'·" .,ee a/,,o ,ect/flll J6 ,,f t/lC C"urlf Act, /993 (Act 459). This wus made clear by Dr. Twum JSC in the ca.SC of Jlcpublic " High Court. llcnu, Ex partc Kumapcy (llzclu IV f ntcrcstcd rarty) 12003-200412 SC GLII 719 where the learned Justice held that: "T/,e s11perv/s11ry Jurlsdlc//011 of //er Ma)e.,ry'., High Court of Jusrlce /11 £1111lm1d 11ever exercL,ed any inherenl supervisory J11ri.,d/cr/011. II was raf/,er a derivative of rlre royal prerogative, Our High Cot1rt has therefore never exercised any inherent supervisory jurisdiction eirl,er. And today, article 141 of the /992 Constitution /ras put tire supervisory jurisdiction of tire High Court on a siatutory basis. Tire article circumscribes that jurisdiction ""d limits ii to cover only lower courts properly so-called and any other lower adjudicating authorities, such as,for example, a public arbitration panel." 2. The above provision clearly confinns my jurisdiction to entertain the present application. In the case of Republic v High Court, Kumasi; Ex parte Bank of Ghana (Rev Samuel Gyamfi & 693 Others Interested Parties) Justice Jones Dotse referred to the judgment of Ansah JSC in the Republic v High Court, Accra Ex parte; Ghana Medical Association (Chris Arcmann-Akummey-Interested Party) [2012] 2 GLR 768 and ' oun s upon which this court held that the aforesaid case· "laid down the gr d • • proceeds to exercise its supervisory jurisdiction thus:

p. 4Source page 4i. Want or excess o.fj11risdict/011, .. ll'hcrr rl,crc is 011 error of law on the face of the record, II, iii. Failure to comply with the rules of11at11mlj11stice, and iv. The WednesblllJ' pri17ciple" The case therefore clearly established error of law on the face of the record as one of the grounds upon which a Superior Court's supervisory jurisdiction may legitimately be invoked. The Supreme Court has however pointed out that the error of law that necessitated the application invoking the supervisory jurisdiction of this Court must be a serious one. This was made clear by the apex Court in the Republic v Court of Appeal, Ex-parte Tsatsu Tsikata 12005-2006] SCGLR 612 case. In that case Wood JSC (as she then was) held that: " ... It stands to reason then that tire error(s) of law as alleged must be f u11damental, substantial, material, grave or so serious as to go to tire root of tire matter. A minor, trifling, inconsequential or unimportant error wlricli does not go to the core or root of the decision complained of; or, stated differently, on which the decision does not turn would not attract the courts supervisory jurisdiction." The determination of this suit hinges mainly on the interpretation of Sections 42 (2) and (5), and 43 (2) and (3) and 44 of the Revenue Administration Act, 2016 (Act 915). I shall thus reproduce the said provisions;

p. 5Source page 5"42(2) A11 objectio11 lo a tax decisio11 slta/1 be i11 writing ,md state precisely lite grounds upo11 wlticlt tlte objectio11 is made. (5) A11 ob' • b t • d ']ec1to11 against a tax decision sltall 1101 e e11ler nme unless lite perso,, ltas (a) ill lite case of import duties {I/Id taxes, paid all 011tslandi11g laxes i11cl11ding tltefu/10111011111 oftlte tax i11 dispute; and {b) in tlte case of otlter taxes, paid all 011tsta11ding taxes including tl,irty percent oftlte tax in dispute." "43 (.2 l 7, 1 1,e Commissioner-General sltall, witlti11 sixty days of receipt of 011 objection, serve tlte objector wit It a notice of llte decision including the reasons for tlte decision. (3) Wit ere the Commissioner-General does not serve tlte person wit It notice of tlte decision within sixty days, tlte person may, by notice in writing to tlte Commissioner-General, elect lo treat lite Commissioner-General as ltaving made a decision to disallow lite objection." "44 A person who is dissatisfied willt a decision of 1/te Commissioner-General may appeal against llte decision to llte Court within tltirty days of the decision." The grammatical meaning of Section 42(5) (b) is plain and simple deserves of no complex interpretation. It simply means that the Ghana Revenue Authority can only entertain an objection if the person making the objection had paid thirty percent (30%) of the tax being disputed. The simple question then is did the Applicant in this suit satisfy this condition precedent? From a reading of Applicant's own Exhibit D , Applicant was reminded that although Respondent had received its objection, before the objection could be

p. 6Source page 6• J 300 f I d' t ·d assessment in cnkr1nincd, /\pplicnnt , ns require to pay ~ /n n t 1e 1spu c • . nccordnncc with. cctinn 41(5) (h) of Act 915. There is no evidence or the snid 30% )'nymcnt lrnving hCl'll mndc. nlthoup,h Applicnnt was silent on this focl hNh in it. ntfofnvit in support ond the statement of cnsc. Respondent at pnrngrnph 14 of it~ nnidnvit in opposition deposed to the fact thnl Applicant hnd foil~ll tl, pny the 30% nml this deposition hns not been denied by the Applicnnt and thu, rcmnins nn ndmission or non - payment. 111c foilurc to ndhcrc to procc<lurcs mandated by statute und its effect has been given judicial hkssing in a pkthorn of nuthoritics. In the case of Republic v High Court, Koforidun; Ex-pnrte Asnrc (Ual.ia Jamal & Others Interested Parties) 2009 SCGLR -t60 at 509, Dotsc ,JSC explained thus:- "Where a statute has made provisions for certain steps to be taken i11 order to comply with tlte requirements of the law, then 110 other steps other titan those prescribe,/ 11111st be taken or followed. In tltis case, once tire first interested parties have failed to strictly adhere to the provisions of PNDCL 284 as will be shortly established, ii follows tltal tlteir actions falls flat in the face of the law." Again in a much recent decision of the Supreme Court in Kwabena Obeng & Eric Akwasi Prempeh v Kumasi Metropolitan Assembly & Kojo Bonsu Civil Appeal No. J4/53/2016 DATED 14rn JUNE, 2017, the Supreme Court again held; "/11 our considered opinion therefore, where a statute has set out tlte procedure for seeking relief, a party cannot resort to any other procedure especially wlten that procedure is statutory. See tlte effect of decisions such as Republic v Central Regional House of Chiefs anti otlters, Ex-parte Nana Elumabobrim unreported judgment oft/re Supreme Court Civil Appeal No. 14/11113"

p. 7Source page 71 must odd th<it I • • ., 1 • • nm quite surprised rlrnr the Aprlicanr "ho h:1.s c,rcu a num ,~r of nutl10ritics lo the cffccr thnt rhc Rc.~1 MJcnl h:is hrcnd1cd sr:uurc mid thus same nmounts lo n nullity '"hich this Court connot gnml immunity to. would seek lo he gmnh.'d immunity hy this some Court for hnving brcm:hcd a tax provision inn slnt111c which ns lniJ down in the case of Mulllcholcc Glrnrrn Limitrd ,, IRS 1201112 SCGLI{ 78.1 ought to he construed strictly. Be that ns it may. on the 26,h dny of Fcbnrnry 2019. the Respondent took o decision on t11c Applicant's ohjcction of 171h December, 2018 by refusing lo amend the osscssmcnt and indicotino that Lhc liability as communicated in the C' lener of 1 Olh December 2018 remains the same for which reason the Applicant was lo pay within Io days. This in my view constitutes o waiver of the mandatory requirements of Section 42(5) (b) of Act 915. In fact Section 42(6) allows for such an action by the Respondent. It provides as follows; "(6) Despite subsectiou (5) tlte Commissio11er-Ge11eral may wah 1 e, vary or suspe11d the requirements of s11bsectio11 (5) pe11di11g tlte deter111i11atio11 of t!te objection or take any otlter action tltat tlte Commissio11er-General considers appropriate i11cludi11g tlte deposit of security" 111e interrogatory, again, is what then os the effect of the Respondent's failure to give an objection decision within sixty (60) days ofreceipt of the objection? Applicant's contention is in two fold, the first contention is that Respondent having failed to give the objection decision within the mandatory sixty (60) days, any decision thereafter was void and of no legal effect as it sinned agai01st statute and secondly, in accordance with Section 43(3) of Act 915, the Applicant opted ~o treat the Respondent's failure to make a decision within sixty (60) days as "allowing the objection".

p. 8Source page 8....- r"'"' . . . . , :·rstofo\l.Scclion•D())of Th,~ nrgumcnl lw the Aprhconl IS 1()1011) n:1,H:d. l I • . • . o tion lo consider the ✓\ct 1H 5 do~ not gin n person ~uch os Appl,cnnl the P . . objection, the on\) Rc.srl,ndcnt' ~ foilur.:-10 ci\'c a dccish.,n as nllo" 11,g the • . . . ~ . . . . d b\' the Re spondent. ()pt1on 1s lo treat the oh_1cc11on as h:mng been d,sallo"c • • t lo preclude or The combined effect of Sections 43(2) anJ (3) of ,\cl 915 1s no b• 1• raised by 3 pre\'cnt the Respondent from making n decision on an o JCC ,on part~· such as the Applicant after n sixty (60) day period but rather to ensure that parties who ha\'e objected 10 a decision by the Respondent do not hold on in the pcrfonnance of their ta.\'. obligations on the basis that they arc waiting the outcome of the decision. This is to allow for a party to treat the objection as having been refused so as to invoke the appeal process as set out in Section 44 of Act 915 ifhe so wishes. I do not think the framers of the statute intended to prevent or preclude the Respondent from making a decision to an objection after sixty (60) days. Just as the High Court (Civil Procedure) Rules, 2004 C.l. 4 7 particularly Order 41 rule 2(1 ), should a Judge fail to deliver its judgment within the stipulated six (6) weeks, would he be precluded from making a judgment thereafter. I think not The Applicant's attempt to now change the wording of the statute to read "allow the objection", I must say is very disingenuous, especially, having regard to the timing of the letter indicating that it was treating the failure of the Respondent to make a decision within sixty (60) days as having allowed the objection.

p. 9Source page 9-0->" A ( ' -_, ~------l the time A . - .. ____ A . pphcnnt wrote Exhibit F being the g•h day of August 2019, pphcant had J E h 'b't a ready been notified of the Respondent's decision by x I J E dated the 26'h d A Jicant had ny of February 2019. Jn fact, it was a/lcr Lhc PP got wind of E ·I 'b• d rty to pay the -X 11 11 G which was directed al the intcrc5le pa Applicant's tax liability that, the Applicant to my mind, quickly wrote Exhibit F, so as lo invoke this Court's supervisory jurisdiction six (6) days after. I m t dd k very seriously as taxes us 8 tl~al lax obligntions in our country are ta en fi I h • the reason the Court's, orm a 1Uge chunk of the Cou-ntry's GDP and 1 at is I . . . . • f tax provisions so as to 1ave time and agam ensured Lhe strict interpretation ° . h t A plicant's understanding ensure all persons pay their taxes. Assuming t a P . .. ent of the law would of the law was the correct position, a strict enJorcem . . f t hich our Court's do not amount to an meqmtable or fraudulent use o slatu e W . u· , r t /Lands Division) Accra, countenance. See the case of Repub!tc v n1g,1 l.,our ,, Ex-parte lands Commission (Nimgua Stool a11d Others - Intere5ted Parties, Civil Motion No. 15/4/14 dated 5111 December 2013 where Wood CJ, presiding quoted wit.h approval the dictum of Atuguba JSC in the case of Network Computers Limited v /11telsat Global Sales and Marketing /2012/ 1 SCGLR 218 at page 231 where our respected jurist observed thus:- "Unless a substantive Act can be regarded as directory and not mandatory or its infraction is so minimal tltat it can he observed tltat it can he covered by t!,e maxim de minimis non curat lex or sue!, tit at tlte complaint about it is mere fastidious stiffness in its construction or t!,e hreacl, relates to part of it which in relation to otlters, can he regarded as subsidiary and therefore sl,oultl not be allowed to prejudice tl,e operation of the dominant part or purpose t!,ereof, or tlte strict enforcement of the statute would amount to a fraudulent or inequitable use of tlte statute or some other

p. 10Source page 10c,m,pdlln,: rea.wm, I ,lo ,rot .,ce /row a court call gloss over tl,e hrcacl, of a Matute. " Apn11 from Applicant's contention that the decision of 261h f cbruary 2019 was void and of no \ego\ effect, Applicant foi\c<l lo demonstrate that Exhibit G titled "Gnmishmcnt'' was not in accordance with Sections 60 and 61 of Act 915 nnd one can only assume that the contention was based solely on the allegation hat the letter of 26 1 h February 2019 was nul\ and void. I have given consideration to al\ the evidence put before me and also given consideration to the written submissions filed by both counsel. I hold the opinion that the facts and the law applicable do not demonstrate any error of law or illegality committed by the Respondent in its decision of 261h February 2019 to warrant the grant of the present application. The remedy open to the Applicant if it is dissatisfied with the decision of261h February 2019 \>Vas one of an appeal as provided in Section 44 of Act 915. In the circumstance, the application is refused. Same is accordingly dismissed. COUNSEL: (SGD) GEORGE K KOOMSON JUSTICE OF THE HIGH COURT GEORGE ANKAMA FOR THE APPLICANT MAXWELL OWUSU BUADI FOR THE RESPONDENT .,

p. 11Source page 11lllifli/1.JJli.CJi 1. llepuh//c . V lf1g1, C Party) /2003 our,, /Jenu, E -2004/ 2 Sc x parte Kumapey (Dzelu IV Interested Gln 7/9 2. Republl CV fl;,,,. C G o ' ourt. K. . 'Yan1ji & 69 3 0 ' lltnas,,· Ex parte Bank of Git an a (Rev Samuel l'1ers J 11/erested Parties) 3. Republic v Jl· I. (Chris A tg 1 Court, Accra Ex parte; Glta11a Medical Association rc111annAk - ummey-lnterested Party) /2012/ 2 GLR 768 4. Republic v Court ,r A OJ ippea/, Ex-parle Tsatsu Tsikata /2005-2006/ SCGLR 612 S. Republic v n: , tg,, Court, Koforidua,· Ex-parte Asare (Baba Jamal & Others Interested Parties) 2009 SCGLR 460 at 509, 6• Kwabena Obe11g & Eric Akwasi Prempel, v Kumasi Metropolitan Assembly & Kojo Bonsu Civil Appeal No. J.f/53/2016 DATED J4TH JUNE, 2017, 7. Multic/10ice Ghana Limited v IRS /2011/ 2 SCGLR 783 8. Republic v High Court (Lands Division) Accra, Ex-parte Lands Co111111issio11 (Nungua Stool and Others - Interested Parties, Civil Motion No. JS/4/14 dated 511' December 2013 9. Network Computers Limited v lntelsat Global Sales and Marketing /2012/ 1 SCGLR 218 at page 231