Judgment summary
The plaintiff, Richard Amo-Hene, issued a writ invoking the original jurisdiction of the Supreme Court under articles 2(1) and 130(1) of the 1992 Constitution. He sought declarations that 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, are inconsistent with, and in contravention of, various articles of the 1992 Constitution, and are therefore null, void and unenforceable.
Section 42(5)(b) of Act 915 requires a taxpayer to pay all outstanding taxes, including 30% of the tax in dispute (in the case of other taxes), before an objection to a tax decision can be entertained by the Commissioner-General. Order 54 rule 4(1) of C.I. 47 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 before an appeal can be entertained by the High Court.
The defendants raised a preliminary objection to the Supreme Court's jurisdiction, arguing that the plaintiff was in substance seeking enforcement of human rights, a matter for the High Court, disguised as an interpretation or enforcement matter. On the merits, the defendants argued that the impugned provisions balance taxpayers' rights against the state's need for effective and timely collection of tax revenue.
The Court, differently constituted, had earlier the same day decided two related writs, Kwasi Afrifa v Ghana Revenue Authority & Another (writ no. J1/23/2021, including a reference from the Court of Appeal, Kumasi, in writ number J6/02/2022) and Export Finance Company Limited v Ghana Revenue Authority and Anor (writ no. J1/7/2021), both raising materially similar arguments and constitutional provisions. The majority in the present case adopted the reasoning in those two decisions.
The majority (Amegatcher JSC, with Dotse, Prof. Kotey, Owusu (Ms.), Lovelace-Johnson (Ms.) and Prof. Mensa-Bonsu (Mrs.) JJSC) dismissed the jurisdictional objection, held that section 42(5)(b) of Act 915 is not unconstitutional, held that Order 54 rule 4(1) of C.I. 47 is not unconstitutional, and dismissed the plaintiff's action in its entirety.
Pwamang JSC dissented. He agreed that section 42(5), (6) and (7) of Act 915 are not unconstitutional, holding that the 30% pre-payment requirement is a justified and proportional limitation on the right of access to justice, ameliorated by the Commissioner-General's discretion under section 42(6) to waive or vary the requirement, which discretion is itself subject to judicial review. However, he held that Order 54 rule 4(1) of C.I. 47 is unconstitutional, both as exceeding the rule-making power of the Rules of Court Committee under article 157(2) of the Constitution, and as a disproportionate limitation on the right of access to the High Court, particularly because it imposes an additional payment requirement with no equivalent discretion to waive or vary it. He would have granted reliefs (b) and (d) and struck down Order 54 rule 4(1) as unconstitutional, while dismissing the plaintiff's other reliefs.
Background
The plaintiff filed his writ in the Supreme Court on 14th April, 2021, invoking the Court's original jurisdiction under articles 2(1) and 130(1) of the 1992 Constitution.
The Revenue Administration Act, 2016 (Act 915) assigned the Ghana Revenue Authority, through the Commissioner-General, full responsibility for administering all tax laws, replacing a system of multiple independent revenue collection agencies. The Act's original dispute resolution provisions were partly amended by the Revenue Administration (Amendment) Act, 2020 (Act 1029).
Under section 42 of Act 915, as amended, a person dissatisfied with a tax decision may lodge a written objection with the Commissioner-General within thirty days of being notified of the decision. Under section 42(5), an objection shall not be entertained unless the person has, in the case of import duties and taxes, paid all outstanding taxes including the full amount of the tax in dispute, or, in the case of other taxes, paid all outstanding taxes including thirty percent of the tax in dispute. Section 42(6) permits the Commissioner-General to waive, vary or suspend these requirements, having regard, under section 42(7), to the need to maintain the integrity of the dispute resolution procedure and to protect Government revenue.
Under section 44 of Act 915 as amended, a person dissatisfied with the Commissioner-General's decision may appeal to the Independent Tax Appeals Board within thirty days, and a person dissatisfied with the Appeals Board's decision may appeal to the Court within thirty days of service of that decision. Section 45 provides that an appeal against an objection decision does not operate as a suspension of the objection decision.
Order 54 rule 4(1) of the High Court (Civil Procedure) Rules, 2004, C.I. 47, provides that an aggrieved person who has filed an appeal against an assessment, decision or order of the Commissioner shall, pending determination of the appeal, pay an amount not less than a quarter of the amount payable in the first quarter of that year of assessment as contained in the notice of assessment. Rule 4(2) provides that an appeal shall not be entertained by a court unless the appellant has paid that amount.
Core dispute
The plaintiff's case was that requiring a taxpayer to pay 30% of disputed tax before an objection is entertained, and 25% before an appeal is entertained by the High Court, is akin to treating the taxpayer as 30% culpable of the disputed tax, contrary to the presumption of innocence, and undermines the right of access to the courts and participation in the administration of justice guaranteed by the 1992 Constitution.
The plaintiff argued that the combined effect of section 42(5)(b) of Act 915 and Order 54 rule 4(1) of C.I. 47 inhibits a person's right to access the courts and to participate in the administration of justice, and is therefore unconstitutional, null and void.
The defendants' preliminary position was that the plaintiff had not properly invoked the Supreme Court's original jurisdiction, because the writ, though framed as an interpretation or enforcement matter, was in substance seeking enforcement of human rights provisions properly cognisable in the High Court.
On the merits, the defendants contended that the 'pay now and argue later' concept balances taxpayers' rights against the state's need for effective settlement of tax debts, limits recalcitrant taxpayers' ability to use objection and appeal procedures to defer payment of taxes, and does not contravene the constitutional guarantees of fair hearing and access to the courts, nor amount to an abuse of discretionary power.
Court findings
On the jurisdictional issue, the Court, adopting the reasoning of Torkornoo JSC in the Afrifa case, held that the plaintiff's writ properly invoked the Court's jurisdiction under article 2(1) of the Constitution, because it identified the offending statutory provisions and the constitutional provisions alleged to be inconsistent with them, and dismissed the objection to the Court's jurisdiction.
On the constitutionality of section 42(5)(b) of Act 915, the majority adopted the reasoning delivered earlier the same day in the Afrifa case, in which the Court held that section 42(5) of Act 915 does not create a fetter to the due hearing of a tax objection, given the rest of the dispute resolution provisions under Act 915, including the objection, judicial review and appeal mechanisms, and that the regime under Act 915 for regulation of tax decisions passes the test of constitutionality. The majority accordingly dismissed reliefs (a), (c) and (e).
On the constitutionality of Order 54 rule 4(1) of C.I. 47, the majority adopted the reasoning delivered earlier the same day in the Export Finance case, in which the Court held that the Rules of Court Committee did not act unconstitutionally in inserting rule 4 into Order 54, that there is a clear public policy rationale against allowing taxpayers to delay or evade their tax obligations, and that Order 54 rule 4 complements section 42 of Act 915 but must yield to it as subsidiary legislation, so that a taxpayer who has already complied with section 42 of Act 915 is not required to comply with Order 54 rule 4 again before invoking the High Court's appellate jurisdiction. The majority accordingly dismissed reliefs (b) and (d), and dismissed the plaintiff's action in its entirety.
In his dissenting opinion, Pwamang JSC held that article 23 of the Constitution, on administrative justice, was the provision directly on point, guaranteeing a person aggrieved by an administrative decision an unfettered right of access to a court or tribunal for redress. He held that section 42(5), (6) and (7) of Act 915, properly interpreted, do not deny access to justice and the courts; they restrict access, but the restriction is justified in the public interest and proportional, given the Commissioner-General's discretion under section 42(6) to waive or vary the prior payment requirement, which discretion is itself reviewable by the High Court.
However, Pwamang JSC held that Order 54 rule 4 is ultra vires the powers of the Rules of Court Committee under article 157(2) of the Constitution, which limits the Committee's power to regulating practice and procedure, and does not extend to imposing substantive payment obligations. He further held that, even if within power, Order 54 rule 4 is a disproportionate limitation on the right of access to the High Court, because, unlike section 42(5), it is stated in absolute terms without any provision for waiver or variation by the Court, and could require a taxpayer to make an additional payment on top of that already made under section 42(5) before an appeal is entertained.
Outcome
By majority decision (Amegatcher JSC, with Dotse, Prof. Kotey, Owusu (Ms.), Lovelace-Johnson (Ms.) and Prof. Mensa-Bonsu (Mrs.) JJSC), the plaintiff's action was dismissed in its entirety. The Court held that 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, are not inconsistent with the 1992 Constitution, and all reliefs (a) to (e) sought by the plaintiff were dismissed.
Pwamang JSC dissented in part. He would have held section 42(5), (6) and (7) of Act 915 not unconstitutional, but would have held Order 54 rule 4 of C.I. 47 unconstitutional and struck it down, granting the plaintiff's reliefs (b) and (d), while dismissing the plaintiff's other reliefs.
Major issues / areas of contention
- Whether the plaintiff properly invoked the original jurisdiction of the Supreme Court under article 2(1) of the 1992 Constitution.
- Whether section 42(5)(b) of the Revenue Administration Act, 2016, Act 915, which requires a taxpayer to pay all outstanding taxes including 30% of the tax in dispute (in the case of other taxes) before an objection to a tax decision can be entertained by the Commissioner-General, is inconsistent with articles 2(1), 17(1), 125(2), 19(2)(c), 33(1), 132, 133(1) and 140 of the 1992 Constitution.
- Whether Order 54 rule 4(1) of the High Court (Civil Procedure) Rules, 2004, C.I. 47, which requires a taxpayer to pay an amount not less than 25% of the amount payable in the first quarter of the year of assessment before an appeal can be entertained by the High Court, is inconsistent with articles 2(1), 17(1), 125(2), 19(2)(c), 33(1), 33(5), 130(1), 132, 133(1) and 140 of the 1992 Constitution.