2022
SUPREME COURT
CORAM
AI Generated Summary
The Supreme Court, per Honyenuga JSC, dismissed an application seeking to invoke its supervisory jurisdiction by certiorari to quash a High Court ruling that had rejected a mandamus compelling a tax refund to the applicant. The applicants Afia Beach Hotel was compulsorily acquired for the Marine Drive Investment Project, and government paid agreed compensation of GH245,222,397 via the Ministry of Tourism. When the final tranche was processed, the Controller and Accountant-General withheld GH2,116,679.78 as capital gains tax, paying the remainder to the applicant. After the Interested Party refused a refund, the applicant sought mandamus in the High Court, which dismissed the application on procedural grounds. On certiorari, the Supreme Court held there was no patent error of law; section 69 of Act 915 establishes a refund account but does not impose an obligatory duty to refund; the applicant failed to exhaust the tax objection and appeal procedures under sections 41, 42 and 44; and capital gains tax lawfully applied to the compensation, justifying the withholding.
HONYENUGA, JSC.
The instant application was filed by the Applicant to invoke the Supervisory Jurisdiction of the Supreme Court against the ruling of the High Court dated
the 2nd day of November 2019. The said ruling is exhibited to the affidavit in support and marked as Exhibit A2. The ruling was delivered following the refusal of the Interested Party to refund the balance of the compensation due to the applicant.
The facts of this case as gleaned from the affidavit in support of the applicant’s application for mandamus is that her Afia Beach Hotel (which included a vast parcel of land was compulsorily acquired by an Executive Instrument No. 59 under the State Lands Act, 1962 (Act 125) dated 19th April 2016 and gazetted on the 29th April 2016 for the MARINE DRIVE INVESTMENT PROJECT. The parties agreed on a compensation to be paid to the applicant in the sum of Forty-Five Million, Two Hundred and Twenty Two Thousand, Three Hundred and Ninety-Seven Ghana cedis
(GH¢45,222,397.00). The manner of payment was that the Ministry of Finance released a warrant to the Ministry of Tourism who worked on it and submitted same to the Controller and Accountant-General to pay the amount into the Ministry of Tourism account for it to wire transfer the amount into the applicant’s account. The crux of the matter is that when the last tranche of the money totaling GH¢5,222,397.00 was released to the Ministry of Tourism for onward payment to the applicant, the Controller and Accountant-General withheld an amount of GH¢2,116,679.78 as tax and paid GH¢3,105,717.22 to the Applicant. Being dissatisfied with the development, the applicant drew the attention of the Ministry of Tourism to
the anomaly and thereafter, the applicant caused a formal demand letter to be written to the interested party for a refund but the latter refused the request. Based upon the refusal, the applicant applied to the High Court for an order of Mandamus against the interested party for a refund of the said amount. The applicant alleged in her paragraph 14 of the affidavit in support that the interested party owes a duty to refund the said amount under section 69 of the Revenue Administration Act, 2016, (Act 915) or any other tax law.
The interested party opposed the application and in his affidavit in opposition raised three grounds for opposing the application; (1) that the payment to the applicant was validly withheld because he was of subject to Capital Gains Tax. (2) that the applicant was unable