November 30, 2022
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The plaintiff commenced an original constitutional challenge to Ghanas tax dispute \u201cpay now, argue later\u201d regime, targeting Section 42(5)(b) of the Revenue Administration Act, 2016 (Act 915) and Order 54 rule 4(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The Ghana Revenue Authority (through the Commissioner-General) and the Attorney-General defended the provisions as necessary to protect public revenue and deter strategic or frivolous objections and appeals. The Court (per Amegatcher JSC) relied on its contemporaneous decisions in Kwasi Afrifa and Export Finance Company, held that Section 42(5)(b) is consistent with Article 23 because Act 915 provides a comprehensive dispute resolution architecture including discretionary waiver and judicial review, construed Order 54 rule 4 as complementing Act 915 and not requiring double payment, and dismissed all reliefs. Pwamang JSC dissented, upholding Section 42(5) but striking down Order 54 rule 4 as ultra vires and disproportionate.
MAJORITY DECISION
AMEGATCHER JSC:-
INTRODUCTION
By his writ, the plaintiff seeks the following reliefs from this court:
a)A declaration that Section 42(5) (b) of the Revenue Administration Act, 2016, Act 915(as amended) which requires a taxpayer to pay 30% of all outstanding taxes (in case of other taxes) before an objection to a tax decision can be entertained by the 1st Defendant is inconsistent with and in contravention of articles 2 (1), 17(1), 125(2)19(2)(c) 33(1) 33(5), 130(1), 132, 133(1), 140 of the 1992 Constitution which guarantee a person’s right of access to court participation in the administration of justice and the presumption of innocence until proven or pleaded guilty hence consequently null, void and unenforceable.
b)A declaration that Order 54 rule 4(1) of the High Court (Civil Procedure) Rules, 2004 C.I. 47 which requires a taxpayer to pay 25% of the disputed tax contained in the notice of assessment before an appeal can be entertained by the High Court is inconsistent with and in contravention of articles 2(1), 17(1) 125(2), 19(2)(c), 33(1), 33(5), 130(1), 132, 133(1), 140, of the 1992 Constitution which guarantees a person’s right of access to the court consequently null, void and enforceable.
c)An order setting aside Section 42(5)(b) of the Revenue Administration Act, 2016, Act 915 (as amended) as being inconsistent with the letter and spirit of the 1992 Constitution and consequently null and void.
d)An order setting aside Order 54 rule 4 (1) of the High Court (Civil Procedure) Rules, 2004 C. I. 47 as being inconsistent with the letter and spirit of the 1992 Constitution and consequently null and void.
e)An order of perpetual injunction restraining the Defendants, their agents or servants or assigns or judicial office under the pretext of acting under Section 42(5)(b) of the Revenue Administration Act, 2016, Act 915 (as amended) and Order 54 rule 4 (1)) of the High Court (Civil Procedure) Rules, 2004 C. I 47 from hearing or attending to an appeal of a tax decision lodged with the 1st Defendant or the 3rd Defendant under the veneer that the mandatory money requirement has not been complied with.
PLAINTIFF’S CASE
It is the case of the plaintiff that a person is presumed to be innocent until his guilt is proved beyond a reasonable doubt. To ask the taxpayer to pay 30% of the disputed tax is akin to saying the taxpayer is 30% culpable of the tax in dispute. The plaintiff submits that the scope of the right of access to the cour