November 30, 2022
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Amegatcher JSC, dismissed a constitutional challenge to Ghana’s tax objection and appeal regime. The plaintiff sought declarations that sections 42(5)(a) and (b), 42(6), and 43(3) of the Revenue Administration Act, 2016 (Act 915), and Order 54 rule 4 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) violated rights of access to courts and fair hearing. The Ghana Revenue Authority defended the “pay now, argue later” framework and highlighted the Commissioner‑General’s discretion under section 42(6), while the 2nd defendant questioned jurisdiction. The Court adopted its earlier interpretation in Afrifa, upheld Order 54 rule 4 as complementary but subordinate to Act 915, emphasized public policy and proportionality, and preferred comparative authority from the Uganda Supreme Court and South Africa’s Metcash. All reliefs were dismissed.
AMEGATCHER JSC:-
INTRODUCTION
The plaintiff’s writ seeks the following reliefs from this court:
A)A declaration that section 42(5) (a) of the Revenue Administration Act, 2016 (Act 915) in so far as it requires a taxpayer objecting to a tax assessment in respect of import duties to fully pay the very tax liability being disputed is inconsistent with and in contravention of articles 2(1), 17, 19 (13), 33(1), 130(1), 132, 137(1) and 140 of the 1992 Constitution.
B) A declaration that section 42(5) (b) of the Revenue Administration Act, 2016 (Act 915) in so far as it mandatorily requires a taxpayer who has lodged a notice of objection to an assessment to, pending final resolution of the objection, pay 30% of the tax assessed as a prerequisite for the notice of objection to be considered is inconsistent with and in contravention of articles 2(1), 17, 19 (13), 33(1), 130(1), 132, 137(1) and 140 of the 1992 Constitution which guarantees a fair hearing and a person’s right of access to the court and consequently null, void and unenforceable.
C)A declaration that section 42(6) of the Revenue Administration Act, 2016 (Act 915), in so far as it gives the Commissioner-General the discretion to waive, vary or suspend the requirements of subsection 5 of Act 915 is discriminatory and arbitrary, and in contravention of the letter and spirit of articles 2(1), 17, 19(13), 33(1), 130(1), 132, 133(1), 137(1) and 140 of the Constitution which guarantees a fair hearing and the right of all persons to have equal access to the Courts of justice and is consequently null, void and of no effect because it gives the Commissioner the discretion to decide on persons that may have access to the Courts.
D)A declaration that section 43(3) of the Revenue Administration Act, 2016 (Act 915), which gives the Commissioner General the option to ignore a notice of objection within the statutory period of sixty (60) days with the resulting effect that the taxpayers is to treat such a failure to make a decision as an election to disallow the tax payer’s notice of objection is an abuse of discretionary power and therefore in conflict with articles 2 (1), 23, 33(1) and 296 of the 1992 Constitution and consequently null and void and of no effect.
E)A declaration that Order 54 rule 4 of the High Court Civil procedure rules 2004 C.I. 47, which requires a taxpayer to pay an amount not less than a quarter of the amount payable in the first quarter of the year of assessment as contained in the noti