REPUBLIC v. COMMISSIONER OF INCOME TAX; EX PARTE NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION LIMITED

JUDGMENT OF TAYLOR J.

In this motion, the National Employers Mutual General Insurance Association Ltd. (hereinafter referred to as the applicants), have applied for certiorari to quash the tax assessments for 1962-63 to 1970-71 accounting years levied on them on 23 April 1971 and notices of refusal to amend the said assessments dated 17 March 1972. The assessments and the notices of refusal to amend were all filed in these proceedings. The application is alleged to be founded on an error of law and the error of law was formulated as follows:

"(a) the Commissioner for Income Tax failed to give adequate consideration to the law and fact that the society was a guaranteed mutual and non-profit making insurance company, membership whereof comprised its policy holders only; it did not trade or do business. As such it was in law not liable to income tax because it did not earn income.

[p.559]

(b) The members were only contributors to a common fund in pursuance of a scheme for their mutual insurance, which excluded outsiders. Even though surpluses were repayable to members in accordance with the memorandum of association such repayments did not constitute distribution of profits or dividends but rather refund to members of funds over-contributed by them. Ever since the inception of its business in Ghana the applicants have not distributed or repatriated any such surpluses."

Although the applicants ostensibly indicate that they were proceeding on the basis of error of law, an examination of the documents filed and the alleged ground (b) together with all the affidavits would seem to rather show that the case is in effect one of the alleged quasi-jurisdictional error.

After the assessments and the refusal to amend, the applicants lodged an appeal some time in 1974 with the Tax Commissioner. It seems the duration of office of the commissioner expired some time in 1974 and to date the appropriate authority has not appointed a Tax Commissioner despite several pleas from the applicants. It is in these circumstances that the applicants apply to the court by the apparent alternative remedy of certiorari to quash the assessments and the notices of refusal to amend the assessments.

On the motion coming before me, Mr. Kudjovie, counsel for the respondent, the Commissioner for Income Tax, raised preliminary objections to the jurisdiction of this court to entertain the application. Counsel referred me to section 1 of the Taxation Act, 1971 (Act 388), as amended by the