2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision, authored by Justice Angelina M. Domakyaareh, arises from the Ghana Revenue Authority’s refusal to issue the Appellant a Tax Clearance Certificate despite his payment of GH¢85,364.68. The Appellant maintains that the GRA’s reliance on Section 42(5) of the Ghana Revenue Administration Act, 2016 (Act 915) is unconstitutional and that he was denied a hearing. The trial judge treated the matter as moot, deemed the statutory provisions unambiguous, and found Section 42(5) consistent with Article 23 of the 1992 Constitution. The Court of Appeal reframed the dispute as a constitutional question—whether Section 42(5) conflicts with Article 23—which lies within the Supreme Court’s exclusive original jurisdiction under Article 130(1)(b). Applying Article 130(2), the court stayed proceedings and will refer the question to the Supreme Court. Citing J H Mensah v Attorney-General, the court emphasized that even allegedly unambiguous or moot constitutional questions should be decided where likely to recur, particularly because Section 42(5) affects all eligible taxpayers. Justices Poku‑Acheampong and Asiedu concurred.
DOMAKYAAREH (MRS.) J A
On the 27th of October, 2021, this appeal was adjourned to today 23rd December, 2021 for judgment. The judgment is not ready. This is because we are of the considered opinion that a constitutional issue that was raised by the Applicant/Appellant at the trial in the court below ought to have been referred to the Supreme Court for determination in order to guide the decision of the trial judge.
The complaint of the Appellant is about the refusal of the Ghana Revenue Authority (GRA) the Respondent/Respondent herein to issue him with a Tax Clearance Certificate (TCC) notwithstanding that he had paid an amount of GH¢85,364.68 as requested by the GRA before he is issued with the TCC. The Appellant contends that the refusal of the GRA to issue the TCC and grant him a hearing by relying on Section 42(5) of The Ghana Revenue Administration Act, 2016, (Act 915) is unconstitutional. The trial judge resolved this issue by holding that the payment of the tax by the Appellant renders the issue moot and further indicated that there is no ambiguity, conflict or doubt in the meaning of Section 42(5) of Act 915 when read together with Section 42(6) of the same Act.
The trial Judge also held that Section 42(5) of Act 915 was in tandem with Article 23 of the 1992 Constitution and that as a result no issue of interpretation arose. The problem is that the issue is not about the interpretation of a provision of an Act of Parliament (The Ghana Revenue Administration Act, 2016, (Act 915) as observed by the trial judge. The issue is about whether or not Section 42(5) of Act 915 is inconsistent with Article 23 of the 1992 Constitution. Once the issue is about the constitutionality of a provision of an Act of Parliament, by Article 130 (1)(b) of the 1992 Constitution, it is only the Supreme Court that has exclusive original jurisdiction to determine same irrespective of whatever understanding the trial judge had about the meaning of Section 42(5) of Act 915. The said Article 130(1)(b) provides that:
“(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in Article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in –
(a) …
(b) all matters arising as to whether an enactment was made in excess of the powers conferred on Parliament or any other authority or person by law or under this Constitution.”
Given that the constitutional issue was raised in a