|
Constitution law - Invoked the
original jurisdiction of the
Supreme Court - Fundamental
human rights - Right of access
to the courts - Revenue
Administration Act, 2016, (Act
915) - Whether or not a person
shall not be permitted to file a
case with the Courts or conduct
any official business unless he
or she provides taxpayer
identification Number - Whether
or not the Plaintiff is raising
a fundamental issue on the
rights of the ordinary citizen
to be able to access the courts
freely and unhindered - Articles
2(1) and 130 - Constitution,
1992 – Whether or not the
provisions paragraphs 1(9), 2(8)
and 2(9) of the Act 915
contravene articles 2(1), 33(1),
48(2), 130(1), 135, 137(1), 140,
273(5) and 280 are
discriminatory against such
groups of persons and the
unconstitutional
HEADNOTES
The Plaintiff, the Center for
Juvenile Delinquency, is a
Ghanaian Non-Governmental
Organization; the Ghana Revenue
Authority is sued as the 1st
Defendant being the authority in
charge of the administration and
collection of the country’s
revenue and the Attorney General
has been made the 2rd
Defendant as the principal legal
advisor to the government The
challenge by the Plaintiff is in
respect of the provision in the
Revenue Administration Act,
2016, (Act 915) to the effect
that: a person shall not be
permitted to file a case with
the Courts or conduct any
official business with them
unless that person quotes the
Taxpayer Identification Number
(TIN) issued to that person by
the 1st Defendant.
The Plaintiff’s concern is that
this requirement under Act 915
is in breach of the letter and
spirit of the Constitution as it
places a fetter on the right to
access the courts. Both
Defendants brushed aside the
plaintiff’s claims as unfounded
and said the requirement of a
TIN is merely regulatory and not
a fetter, as obtaining a TIN
comes with no cost or delay. The
2nd Defendant
submitted further that the
Plaintiff’s claim was unfounded,
unsubstantiated and not
justiciable.
HELD
I am of the view that the
Plaintiff is not making a
mountain out of a molehill but
has raised very cogent and
important constitutional issues;
which brings into question the
very function of the Judiciary
as the watchdog of the
Constitution, the protector of
human rights and upholder of the
rule of law and the power of
judicial review of legislative
action by the Supreme Court per
Article 2(1) (a) and 130(b) of
the Constitution. This Court is
therefore under a duty to look
at the substance of the
Plaintiff’s claim in order to do
substantial justice.
Accordingly, I hold on issue 1
that the Plaintiff has properly
invoked our jurisdiction under
articles 2(1) and 130 (b) of the
Constitution. The objection on
grounds of jurisdiction is
therefore dismissed.
it is my considered opinion that
the requirement under paragraph
2(8) of the First Schedule of
Act 915 that a person shall not
be permitted to file a case in
Court unless he quotes his TIN
is an unjustified interference
with the right of an individual
to access the court for justice.
It is an unreasonable
restriction and limitation on
the right to access the law
courts and therefore fails the
proportionality test.
Though there is of lack of
clarity in the Plaintiff’s
submissions in respect of
juveniles, I appreciate its
concern, as a juvenile can only
access the courts by a next
friend. This person being an
adult may require a TIN before
filing a court process on behalf
of his next friend who is a
juvenile. The said provisions
are therefore overbroad as it
affects the rights of juveniles
to access justice in both
criminal and civil cases. From
the foregoing I have no
hesitation to reach the
conclusion that the said
paragraphs 1(9) and 2(8) of the
First Schedule of Act 915
clearly offend the letter and
spirit of the Constitution as
they violate the right of access
to law courts by persons in
Ghana including juveniles. These
provisions are in contravention
of Articles 2(1), 33(1),
130(1), 132, 133(1), 135,
137(1), 140, 273 (1) and (5) and
280 of the Constitution and the
same are unconstitutional, void
and of no effect; and I so
declare
On a true and proper
interpretation of the
Constitution I resolve issues 1
and 3 in favour of Plaintiff,
whilst issue 2 is resolved in
part in favour of the Plaintiff.
Accordingly, I grant reliefs (a)
and (b). I also grant relief (c)
in part. Consequently,
paragraphs 1 (9) and 2 (8) of
the First Schedule of the
Revenue Administration Act, 2016
(Act 915) are hereby struck down
as unconstitutional and in
contravention of the letter and
spirit of articles 2(1) 130,
33(1), 48(2), 132, 133(1), 135,
137(1), 140, 273(1), 273(5) and
280 of the 1992 Constitution.
STATUTES REFERRED TO IN JUDGMENT
Revenue Administration Act, (Act
915),
Revenue Administration Act,
2016, (Act 915)
Income Tax Act, 2015 (Act 896);
National Media Commission
(Content Standards) Regulations,
2015, L.I. 2224
CASES REFERRED TO IN JUDGMENT
Daasebre Asare Baah III and 4
Others v The Attorney General
and the Electoral Commission
[2010] SCGLR 463
Tuffuor v Attorney-General
[1980] GLR 637.
Ghana Independent Broadcasters
Association v The
Attorney-General & National
Media Commission, Writ No
J1/14/2016 dated 30 Nov 2016, SC
In re Akoto [1961] 2 GLR 523
Republic v Eugene Baffoe-Bonnie
& 4 Ors [2019] GLTR 1.
Civil and Local Government Staff
Association of Ghana [CLOSAG] v
The Attorney-General and 2 Ors.
Suit No. J1/1/2016 dated 14 June
2017, unreported:
Labone Weavers Enterprises Ltd V
Bank of Ghana [1977] 2 GLR 156,
New Patriotic Party v Inspector
General of Police [1993-94] 2GLR
459 at 504,
Attisogbe v CFC Construction Co.
(WA) Ltd & Reid [2005-2006]
SCGLR 858 at 872
Awuni v West African Examination
Council [2003-2004] 1 SCGLR 471
at 499 to 500:
Adofo v. Attorney-General &
Cocobod [2005-2006] SGCLR 42
Asare Bah III v Attorney-General
& Electoral Commission [2010]
SCGLR 463.
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary
Cambridge Advanced Learner’s
Dictionary &Thesaurus
DELIVERING THE LEADING JUDGMENT
ADINYIRA (MRS), JSC: -
COUNSEL:
DENNIS ADJEI-DWOMOH WITH SAMUEL
KOFI NARTEY FOR THE PLAINTIFF.
ODARTEY LAMPTEY WITH HIM SAMUEL
IBRAHIM MOHAMMED AND FREEMAN
SUKAKI.
MRS. GRACE MBROKOH EWOAL,
PRINCIPAL STATE ATTORNEY WITH MS
AKAWARI-LINRU ATTINDEM,
ASSISTANT STATE ATTORNEY FOR THE
2ND DEFENDANT.
J U D G M E N T
ADINYIRA (MRS), JSC: -
My Lords, this delivery which
happens to be my valedictory
judgment after nearly 30 years
on the bench with 13 years on
the Supreme Court Bench,
addresses a ‘fundamental
prerequisite to the full
enjoyment of fundamental human
rights,’ that is the right of
access to the courts. I have
always believed the Judiciary
would aspire to enforce
legislation, but where
legislative abridgement of human
rights and freedoms is asserted,
then, the court should be astute
to examine the effect of the
challenged legislation.
The Plaintiff, the Center for
Juvenile Delinquency, is a
Ghanaian Non-Governmental
Organization; the Ghana Revenue
Authority is sued as the 1st
Defendant being the authority in
charge of the administration and
collection of the country’s
revenue and the Attorney General
has been made the 2rd
Defendant as the principal legal
advisor to the government
The challenge by the Plaintiff
is in respect of the provision
in the Revenue Administration
Act, 2016, (Act 915) to the
effect that: a person shall not
be permitted to file a case with
the Courts or conduct any
official business with them
unless that person quotes the
Taxpayer Identification Number
(TIN) issued to that person by
the 1st Defendant.
The Plaintiff’s concern is that
this requirement under Act 915
is in breach of the letter and
spirit of the Constitution as it
places a fetter on the right to
access the courts.
Both Defendants brushed aside
the plaintiff’s claims as
unfounded and said the
requirement of a TIN is merely
regulatory and not a fetter, as
obtaining a TIN comes with no
cost or delay. The 2nd
Defendant submitted further that
the Plaintiff’s claim was
unfounded, unsubstantiated and
not justiciable.
My Lords, is the Plaintiff
making a mountain out of a
molehill as the Defendants are
telling this Court? Or is the
Plaintiff raising a fundamental
issue on the rights of the
ordinary citizen to be able to
access the courts freely and
unhindered?
FACTS OF THE CASE
In 2016 Parliament passed the
Revenue Administration Act, (Act
915), which came into force on
10th August, 2016.
Section 10 of Act 915 required
the Commissioner-General to
maintain a system of Taxpayer
identification number; and Tax
clearance certificates, for the
purpose of identification of
taxpayers and promoting tax
compliance. Section 11 of Act
915 requires that:
(1)
A person shall show the Taxpayer
Identification Number of that
person in any claim,
declaration, notice, return,
statement or other document
used for the purpose of a tax
law.
(2)
Except where otherwise directed
by the Commissioner-General in
writing, an institution
specified in the First Schedule
shall request for
(a) a Taxpayer Identification
Number from a person who
conducts official business with
that institution : The First
Schedule of the Act provides:
The Tax payer Identification
Number System
1.
The Taxpayer Identification
Number System applies to the
following—
(1)
the Ghana Revenue Authority;
(2)
the Controller and Accountant
General’s Department;
(3)
the Registrar General’s
Department;
(4)
the Registrar of Co-operatives;
(5)
the Lands Commission;
(6)
the Immigration Service;
(7)
the Passport Office;
(8)
the Driver and Vehicle Licensing
Authority;
(9)
the Courts;
(10)
Ministries, Departments and
Agencies;
(11)
Metropolitan, Municipal and
District Assemblies;
(12)
Government, Sub-divisions of
Government and Public
Institutions not listed above;
(13)
Persons required to withhold tax
under the Income Tax Act, 2015
(Act 896);
(14)
Banks, Insurance Companies and
other Financial Institutions;
(15)
Manufacturing companies; and
(16)
Any other institution or person
which the Minister may by
Regulations prescribe.
Use of Taxpayer Identification
Number for specified
transactions
2.
A person shall not be
permitted—
(1)
to clear any goods from any port
or factory;
(2)
to register any title to land,
interest in land or any document
affecting land;
(3)
to obtain any Tax Clearance
Certificate from the Ghana
Revenue Authority;
(4)
to obtain a certificate to
commence business or a business
permit issued by the
Registrar-General or a Local
authority;
(5)
to register a co-operative;
(6)
to receive payment from the
Controller and
Accountant-General or a Local
Government Authority in respect
of a contract for the supply of
any goods, works or provision of
any services;
(7)
to receive a payment subject to
withholding under the Income Tax
Act, 2015, (Act 896);
(8)
to file a case with the Courts;
or
(9)
to conduct any official business
with the institutions and
persons specified
in paragraph 1
unless that person quotes the
Taxpayer Identification Number
issued in respect of
that person under the System.
[Emphasis mine]
The Plaintiff’s Writ
On 13th April 2018,
the Plaintiff brought this
action to invoke the original
jurisdiction of this Court under
articles 2(1) and 130 of the
Constitution, 1992, claiming
nine reliefs which may be summed
up as follows:
a)
A declaration that paragraphs
1(9), 2(8) and 2(9) of the
First Schedule of the Revenue
Administration Act, 2016 (Act
915) which prohibits a person
from filing a case in court or
conducting any official business
with the courts unless that
person quotes the Taxpayer
Identification Number issued in
respect of that person under the
Taxpayer Identification Number
System of the 1st Defendant are
inconsistent with and are in
contravention of the spirit of
the Constitution in terms of
articles 2(1), 33(1), 48(2),
130(1), 132, 133(1), 135,
137(1), 140, 273(1), 273(5) and
280 of the 1992 Constitution
which guarantee a person’s right
of access to court hence null,
void and unenforceable.
b)
A declaration that the
requirement of the use of TIN in
paragraphs 1 (9), 2
(8)and (9)of the First
Schedule of the Revenue
Administration Act, 2016 (Act
915) is overbroad as it applies
to juveniles and is thereby
inconsistent with and in
contravention of the spirit of
the Constitution in terms of
articles 2(1), 33(1), 130(1),
132, 133(1), 135, 137(1) 140,
273 (1) and (5) and 280 of the
1992 Constitution which
guarantee the right of a person,
including a juvenile, to have
access to the courts, and
consequently null, void and
unenforceable.
c)
An order striking down
Paragraphs 1(9), 2 (8) and 2 (9)
of the First Schedule of the
Revenue Administration Act, 2016
(Act 915) for being inconsistent
with the letter and spirit of
the 1992 Constitution and
consequently null and void.
The Plaintiff’s Statement of
Case
Lawyer Dennis Adjei Dwomoh, for
the Plaintiff, submits that
articles 2(1), 33(1), 130(1),
132, 133(1), 135, 137(1), 140,
273 (1) and (5) and 280 of the
1992 Constitution by their
wording guarantee an unimpeded
right of access to the Courts,
however Paragraph 1(9), 2(8) and
2(9) of the First Schedule of
Act 915, by requiring that a
person shall not be permitted to
file a case with the courts and
shall not transact business with
them unless that person quotes
his/her Taxpayer Identification
Number, infringe on the right of
access to the courts, especially
of vulnerable groups such as the
aged, the incapacitated,
juveniles and accused persons in
custody who may not be in a
position to readily obtain a
TIN. The Plaintiff further
contends that the provisions are
discriminatory against such
groups of persons and prays the
Court to declare the said
provisions unconstitutional.
The 1stDefendant’s
Statement of Case
Lawyer C. Odartey Lamptey
submits for the 1st
Defendant that the requirement
for quoting a TIN on a court
process before filing is merely
regulatory and akin to other
constitutional and statutory
requirements contained in the
Courts Act, and is therefore not
in violation of the
Constitution. The 1st
defendant submits further that,
obtaining a TIN comes with no
cost and delay and thus its
endorsement on a process before
it is filed in court cannot be
called a fetter on the right to
access the courts anymore than
the requirement for payment of
filing fees to access the
courts. He also submits that the
requirement of TIN is one of the
measures put in place by
Parliament to ensure tax
compliance as provided for under
Article 41 (j) of the
Constitution.
In response to the Plaintiff’s
claim that the acquisition of a
TIN is overbroad and inherently
discriminatory and may result in
juveniles being denied access to
the courts, Mr. Lamptey submits
that the argument is not legally
tenable as a juvenile is not
liable to pay tax and therefore
not obliged to obtain a TIN.
Counsel submits further that a
taxpayer or potential taxpayer
who chooses not to apply for and
obtain a TIN is to be considered
as electing not to access the
courts and not that a fetter is
being placed on his or her
right.
The 2nd Defendant’s
Statement of Case
The Principal State Attorney,
Mrs. Grace M-Ewoal on behalf of
the Attorney-General [AG] raised
a preliminary legal objection to
the Plaintiff’s writ on the
grounds that the Plaintiff has
not properly invoked the
original jurisdiction of the
Supreme Court under articles
2(1) and 130 of the
Constitution.
Relying on the case of
Daasebre Asare Baah III and 4
Others v The Attorney General
and the Electoral Commission
[2010] SCGLR 463 , the
AG submits that the Plaintiff
merely asserted that
paragraphs 1(9), 2(8) and 2(9)
of the Act 915 contravene
articles 2(1), 33(1), 48(2),
130(1), 135, 137(1), 140, 273(5)
and 280 of the Constitution
without providing any proof and
therefore has not properly
invoked the jurisdiction of this
Court.
The AG describes as flawed and
misconceived, the Plaintiff’s
claim that the said requirement
is overbroad, for the reasons
that a juvenile is not liable to
pay tax and therefore not
required to obtain a TIN. She
submits further that a juvenile
has no capacity to institute an
action in court on his own
except through a guardian ad
litem and it is that person who
is required to possess a TIN.
She also argues that the law
does not apply to criminal
proceedings or to the original
jurisdiction of the Supreme
Court under articles 2
(1) and 130 of the Constitution.
ISSUES FOR DETERMINATION
The issues agreed upon by the
parties and filed on 5 February
2019, are:
1.
Whether or not the Plaintiff has
properly invoked the original
jurisdiction of the Supreme
Court under articles 2(1) and
130 of the 1992 Constitution
2.
Whether or not paragraph 1(9),
2(8) and 2(9) of the First
Schedule of the Revenue
Administration Act, 2016 (Act
915) which prohibits a person
from filing a case in court and
from conducting any official
business with the court unless
the person quotes his or her tax
identification number on his or
her process contravenes articles
2(1) 130, 33(1), 48(2), 132,
133(1), 135, 137(1), 140,
273(1), 273(5) and 280 of the
1992 Constitution and the right
of access to court and justice.
3.
Whether or not paragraphs 1(9),
2(8) and 2(9) of the First
Schedule of the Revenue
Administration Act, 2016 (Act
915) violate the rights of
juveniles of access to the court
and justice in criminal
proceedings.
CONSIDERATION
Issue 1
Whether or not the Plaintiff has
properly invoked the original
jurisdiction of the Supreme
Court under articles 2(1) and
130 of the 1992 Constitution
On the point of jurisdiction,
Article 1(2) of the 1992
Constitution provides:
“(2) The Constitution shall be
the supreme law of Ghana and any
other law found to be
inconsistent with any provision
of this Constitution shall, to
the extent of the inconsistency,
be void.”
Articles 2(1) (a) and 130 (1)
(b) of the Constitution also
provides respectively as
follows:
“2. (1) A person who alleges
that –
an enactment or anything
contained in or done under the
authority of that act or any
other enactment…
is inconsistent with, or is in
contravention of a provision of
this Constitution, may bring an
action in the Supreme Court for
a declaration to that effect.”
130. (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 -
(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.
These two constitutional
provisions empower any person
who alleges that an enactment
contravenes the Constitution, to
proceed to this Court to have it
declared void or to the extent
of the inconsistency.
Presumption of Legality of
Statutes and Principle of
Severability
Two cardinal principles guiding
the judicial review of
legislation is firstly, the
presumption that every enactment
by the legislator is presumed to
be valid or constitutional until
the contrary is proven and
secondly the principle of
severability of impugned
legislation; that is the power
of this Court to strike down
offending parts of legislation
leaving the other part
unaffected. These principles
make it imperative that
particulars of invalidity or
want of constitutionality be
identified with sufficient
clarity to enable this Court to
determine, infringements,
violations, conflicts or
non-compliance with
constitutional provisions and
procedures in the exercise of
our exclusive jurisdiction under
articles 2(1) and 130(1). See
Daasebre Asare Baah III,
supra at page 471
On the issue of jurisdiction,
the main point of the objection
raised by the Attorney General
is that the Plaintiff cited
several constitutional
provisions with a bare assertion
that the said paragraphs 1(9),
2(8), and (9) of the First
Schedule of Act 915 are in
conflict with these
constitutional provisions
without any evidence in proof.
I have examined the writ,
affidavit in support and
statement of case filed by the
Plaintiff and find that contrary
to this assertion by the
Attorney-General, the plaintiff
did not merely refer to those
constitutional provisions but
went to great lengths to
demonstrate how each gives a an
automatic right of access to the
courts. He further discussed the
effect of the enforcement of the
impugned provisions in the
administration of justice, such
as the jurisdiction of the
courts, enforcement of human
rights, criminal justice, civil
cases and the effect on the
vulnerable, particularly
juveniles. The Plaintiff
contended that the impugned
requirement is an affront to the
spirit of the Constitution as
described in the celebrated case
of Tuffuor v Attorney-General
[1980] GLR 637.
In Ghana Independent
Broadcasters Association v The
Attorney-General & National
Media Commission, Writ No
J1/14/2016 dated 30 Nov 2016,
SC, Unreported; the
Plaintiff therein claimed that
the National Media Commission,
which is the regulatory body
responsible for the media in
Ghana, went beyond bounds and
was acting in a manner inimical
to the attainment of the right
of free expression. The
Plaintiff raised concerns about
certain provisions in the
National Media Commission
(Content Standards) Regulations,
2015, L.I. 2224 which it claimed
were
“unconstitutional as same
amounts to censorship, control
and direction of operators of
mass media communication in so
far as the said regulations
require an operator to seek
authorization of his/her content
before carrying same on any of
the platforms of mass media
communication……….and therefore
contrary to Articles 162(2) and
(4), 167(d) and 173 of the 1992
Constitution”. They
therefore applied to the Court
to have same declared void and
unconstitutional and to be
struck down:
The Defendants in that case also
raised objection to the
jurisdiction of the Court in a
tone similar to the 2nd
Defendant in this case, to wit:
“it is not appropriate, as
what plaintiff has done in this
case is to assemble as many
statutory provisions in the
enactment complained about in
relation to his/her case, and
then throw it at the Court, for
the court to now determine the
extent of their inconsistency
with or contravention of the
Constitution.”
Benin JSC in rejecting this
argument as unsustainable said:
“The reliefs sought herein are
clearly [recognizable] under the
Constitution. It is noted that
there is no magical or standard
formula in setting out a
constitutional case before this
court; what is important is that
the contents of the reliefs
sought and the affidavit in
support must raise a case
[recognizable] under the
Constitution. However inelegant
the words used in expressing the
reliefs, what is important are
that they are couched in
language that the court will
appreciate without difficulty.
The court will then look at the
substance of the claim in order
to do substantial justice.”
In considering this issue, my
Lords, I feel it pertinent to
remark that the constitutional
development of our country as a
modern democracy has evolved
dramatically since the landmark
case of In re Akoto [1961] 2
GLR 523, with the
entrenchment of the fundamental
rights and freedoms of the
individual in our 1969, 1979 and
1992 Constitutions. It was
imperative that not only were
these rights of the individual
enshrined and entrenched in the
Constitution but also that a
mechanism was provided for their
enforcement. Consequently,
Article 33 (1) is entrenched in
the Constitution for the
protection and enforcement of
these rights whenever a person
alleges that a provision of the
Constitution of the fundamental
rights and freedoms “has
been, or is being or is likely
to be contravened in relation to
him, then without any prejudice
to any other action that is
lawfully available, that person
may apply to the High Court for
redress.” [Emphasis mine]
The other articles which the
Plaintiff relied on, viz 2(1),
48(2), 130(1), 135, 137(1), 140,
273(5) and 280 of the 1992
Constitution by their combined
effect give free and unimpeded
right of access to other courts
for a person to seek other
redress that is legally
available.
Section 108 of Act 915 defines
‘Court’ as ‘High Court’, but
upon reading the Act as a whole
this definition, applies to
section 44 of the Act dealing
with appeals to the High Court
against a decision by the
Commissioner. However, the use
of the word ‘the Courts’ in the
context of the First Schedule
is intended to apply to the
courts as an institution and
therefore not limited to the
High Court. Accordingly the
submission by the 2nd
Defendant that the Supreme Court
is not affected by the impugned
provisions is misplaced.
From the foregoing, I am of the
view that the Plaintiff is not
making a mountain out of a
molehill but has raised very
cogent and important
constitutional issues; which
brings into question the very
function of the Judiciary as the
watchdog of the Constitution,
the protector of human rights
and upholder of the rule of law
and the power of judicial review
of legislative action by the
Supreme Court per Article 2(1)
(a) and 130(b) of the
Constitution. This Court is
therefore under a duty to look
at the substance of the
Plaintiff’s claim in order to do
substantial justice.
Accordingly, I hold on issue 1
that the Plaintiff has properly
invoked our jurisdiction under
articles 2(1) and 130 (b) of the
Constitution. The objection on
grounds of jurisdiction is
therefore dismissed.
My Lords, it will be expedient
to consider issues 2 and 3
together.
Issue 2
Whether or not paragraph 1(9),
2(8) and 2(9) of the First
Schedule of the Revenue
Administration Act, 2016 (Act
915) which prohibits a person
from filing a case in court and
from conducting any official
business with the court unless
the person quotes his or her tax
identification number on his or
her process contravenes Articles
2(1) 130, 33(1), 48(2), 132,
133(1), 135, 137(1), 140,
273(1), 273(5) and 280
of the 1992 Constitution and
the right of access to court and
justice
Issue 3
Whether or not paragraphs 1(9),
2(8) and 2(9) of the First
Schedule of the Revenue
Administration Act, 2016 (Act
915) violate the right of
juveniles of access to court and
justice in criminal proceedings.
It is a matter of statutory
construction for the Court to
determine whether the purpose of
the said provisions is such that
it impliedly prohibits the
filing of a court process
without a TIN.
My Lords, at this point, I will
discuss the concept of access to
justice and the principle of
proportionality to determine
whether the limitation on access
to the law courts as being
alleged is proportional and
constitutional.
Access to Justice
A cardinal principle of the Rule
of Law is equality before the
law and therefore Article 17(1)
of the Constitution guarantees
all persons equality before the
law which includes equal access
to courts in order to prosecute
or defend a claim or a violation
of a right. This right requires
the access to be adequate,
effective and meaningful.
For example, for a person to
institute an action in this
Court, under Article 2 (1) the
only prerequisite is that the
person must be a citizen of
Ghana. For the enforcement of
any of the fundamental human
rights, every person in Ghana,
whether a citizen or non-citizen
is competent to bring an action
under Article 33(1) to the High
Court.
In every other actions whether
civil or criminal every person
in Ghana, citizen and
noncitizens alike, who has a
cause of action or a criminal
complaint, has access to all
courts in Ghana by complying to
the rules of procedure
applicable to each court. There
is no prior statutory restraint
for a form of identity before
one can access the courts.
Elements such as capacity,
jurisdiction and the nature of
the claim are some of the
factors a person should consider
before filing a process in
court.
There are two sides to the
concept of access to justice:
the first is the freedom to walk
into the court and initiate a
cause of action and secondly the
ability to meaningfully and
effectively participate in
proceedings i.e. the right to a
fair trial in both civil and
criminal trials. See Article 19
of the Constitution. This second
aspect of access to justice was
considered in the case of The
Republic v Eugene Baffoe-Bonnie
& 4 Ors [2019] GLTR 1.
Article 12 (1) requires all 3
arms of government to respect
and uphold the fundamental human
rights and freedoms enshrined in
the Constitution.
“(1) The fundamental human
rights and freedoms enshrined in
this chapter shall be respected
and upheld by the Executive,
Legislature and Judiciary and
all other organs of government
and its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, and shall be enforceable
by the Courts as provided for in
this Constitution.”
The Proportionality test
In Eugene Baffoe-Bonnie
case, I discussed the
proportionality test in some
great detail and I quoted with
approval the following words of
Akuffo JSC (as she then was) in
Civil and Local Government
Staff Association of Ghana [CLOSAG]
v The Attorney-General and 2
Ors. Suit No. J1/1/2016 dated 14
June 2017, unreported:
“Prima facie, constitutional
rights and freedoms are to be
enjoyed fully subject to the
limits which the Constitution
itself places thereon in terms
of Article 12 (2)...Hence in
determining the validity of any
statutory or other limitation
placed on a constitutional
right, the question that need to
be determined are:
a.
Is the limitation necessary? In
other words is the limitation
necessary for the enhancement of
democracy and freedoms of all,
is it for the public good?
b.
Is the limitation proportional?
Is the limitation over-broad
such as to effectively nullify a
particular right or freedom
guaranteed by the Constitution?
In the CLOSAG case, the
Supreme Court in applying the
proportionality test examined
the role of members of the Civil
Service and Local Government
Service in the overall
governance structure in Ghana to
determine whether the
limitations on the enjoyment of
their political rights are
proportional and constitutional.
The Court held that: it was
clear from the functions of the
Civil and Local Government
Services that a large measure of
apparent political anonymity or
neutrality is required in order
for these Services to function
satisfactorily and effectively
as part of the national
government machinery.
Accordingly, the Court held that
their Codes of Conduct in
general do not deny them the
freedom of association,
particularly the right to join
political parties of their
choice and that they merely seek
to place a limitation on the
manifestation of that right
while in-service, in order to
maintain the neutrality of the
Civil and Local Government
Services and foster the
principles of anonymity and
permanence.
The importance of the right of
access to the courts lies in the
fact that it enables every
person to enjoy all the other
fundamental human rights and
freedoms enshrined in Chapter
Five of the 1992 Constitution.
Further, access to justice
enables people who are more
vulnerable to socio-economic
hardships, discrimination and
general human rights abuses to
access and enforce their
inalienable human rights.
Generally, the majority of
persons face obstacles when
trying to bring cases to court
due to lack of access to legal
aid. So that any additional
impediment introduced by any arm
of government that prevents a
person from invoking the
jurisdiction of the court and
thereby results in a denial of
justice is unacceptable.
In Labone Weavers Enterprises
Ltd V Bank of Ghana [1977] 2 GLR
156, the Court held as
follows:
“ every person has an unimpeded
access to the law courts and
this basic fundamental right
could only be taken away by an
express provision of a Decree or
an Act of Parliament
provided the Act did not run
counter to any provisions of the
Constitution that the
country might have.”[Emphasis
mine]
Hayfron-Benjamin JSC in New
Patriotic Party v Inspector
General of Police [1993-94] 2GLR
459 at 504, said:
“[T]he framers of the
Constitution, 1992 intended that
the citizens of this country
should enjoy the fullest measure
of responsible human and civil
rights. Therefore any law which
seeks to abridge these freedoms
and rights must be struck down
as unconstitutional.”
My Lords I will now examine the
impugned provisions to determine
whether the harm it does to
freedom of access to the courts
plainly outweighs whatever
benefit it aims to achieve.
Interpretative Approach
As with every enactment there is
a presumption that the drafters
chose with utmost care, every
word included therein and that
unless the contrary is
established, such words must be
given their normal and ordinary
meaning.
The First Schedule is headed
‘Transactions for which
Taxpayer Identification Number
and Tax Clearance Certificate is
required’. Part 1 is headed
The Tax Payer Identification
Number System and
subparagraphs (1) to (15) list
the institutions that the TIN
System applies. Paragraph 1(9)
provides that it applies to the
courts. Paragraph 2 is headed
‘Use of Taxpayer
Identification Number for
specified transactions’ and
makes provision for the use of
TIN for specific transaction
without which a person shall not
be permitted under 2 (8) to file
a case with the Courts and per
2(9) a person cannot conduct any
official business with the
institutions and persons
specified in paragraph 1.
The words used in the said
paragraphs are simple, clear and
unambiguous and do not need any
further interpretation, except
to give them their normal and
ordinary meaning Though it is
trite law, I will refer to
section 42 of the Interpretation
Act of 2009, Act 792 which
provides: “In an enactment the
expression, “may" shall be
construed as permissive and
empowering, and the expression
"shall" as imperative and
mandatory.” Thus by the use of
the word ‘SHALL’ in the opening
sentence of paragraph 2: that a
person shall not be permitted…
to file a case with the courts,
the legislator clearly intended
to impose a statutory
prohibition of the filing of any
process with the courts, unless
that person quotes his or her
TIN.
Accordingly, the submissions by
the Defendants that the
requirement for the use of TIN
does not place a fetter on the
right to access justice is very
limp as the use of the word
“shall’ makes it a mandatory
requirement. Therefore the
requirement bluntly put is: no
TIN no access to a court.
‘Business’ is defined under
section 108 of the Act 915 to:
“include a trade, profession or
vocation, but does not include
employment.” According to the
Black’s Law Dictionary a
‘transaction’ is “the act of
conducting business or other
dealings; especially the
formation, performance, or
discharge of a contract or
something performed or carried
out in a business agreement or
exchange”. The Cambridge
Advanced Learner’s Dictionary
&Thesaurus defines a
‘transaction’ as an occasion
when someone buys or sells
something or when money is
exchanged or the activity of
buying or selling something.
With the exception of filing a
case in the courts, all the
transactions specified in
paragraph 2 of the First
Schedule such as the clearing of
goods at the harbour,
registering land or a company,
receiving payment from the
Controller and Accountant
General’s Department ultimately
or potentially require the
person, transacting business
with the specified institutions,
either to pay some form of tax
or be properly taxed for
receiving some payment from the
state.
‘Tax’ is defined under section
9(1)of Act 915 to mean “a duty,
levy, charge, rate, fee,
interest, penalty or any other
amount imposed by a tax law or
to be collected by or paid to
the Commissioner- General under
a tax law”. I believe the taxes
would include stamp duty,
customs and excise duties,
investment tax, sales tax, VAT
and withholding tax to be paid
to the institution by the person
conducting such transaction with
same.
However, the filling of a case
in court clearly does not fit in
the above description of
business transactions. The
official business of the court
is to administer justice for the
people and on behalf of the
people by the Judiciary as
stated in article 125(1) of the
1992 Constitution. When it comes
to transactions such as a
contract for the supply of goods
or services, logistics and
works, that role is played by
the Judicial Service and not the
courts or the Judiciary. In such
business transactions the
Judicial Service like any other
public service has to comply
with the tax laws and financial
regulations and it is therefore
mandatory for it to require the
use of TIN and Tax Clearance
Certificate in such business
transactions,
The application of section 11
(2) by the other institutions
listed in paragraph 1 of the
First Schedule to request for
TIN from a person who conducts
any business specified in
paragraph 2 with that
institution is therefore legal,
necessary and reasonable in
order to ensure tax compliance.
Both Defendants contend that the
said provisions is similar to
payment of filing fees or the
endorsement by a lawyer of his
licence number on any process
filed in Court.. This comparison
with respect to counsel begs the
question and diminishes the
issue before us. It is like
comparing apples with oranges as
the idiom goes.
A filing fee is the amount of
money a person pays to file any
process before the court. The
amount depends on the nature of
the case and the court. But then
by the definition of ‘tax’,
under section 9(1) supra,
filing fee is a form of tax,
and thus refusing a
person from filing a case for
not possessing a TIN rather
defeats the purpose of widening
the tax net to rake in revenue.
The endorsement of a lawyer’s
licence is to provide proof that
the lawyer is licensed to
practice law under the Legal
Professional Act and Regulations
for that particular legal year.
A person quoting his TIN on a
Court process does not
necessarily mean he has
fulfilled his or her tax
obligation, so in effect it is a
mere inconvenience if one may
say so. Where an administrative
body has alternatives by which
it can achieve the outcome
expected from a policy, then
that is preferable to the option
that creates a greater
inconvenience to the larger
public and in this context
impede access to justice.
In the case before us, the
underlying policy for a person
to obtain a TIN as stated in
section 10 of Act 915 is to
identify taxpayers. So
invariably, the purpose of TIN
is to widen the tax net to
facilitate tax collection for
more revenue to accrue for the
development of the state and
also to ensure the compliance by
citizens with their public duty
under Article 41 (j) to be tax
compliant. However the harm it
does to freedom of access to the
courts plainly outweighs
whatever benefit it aims to
achieve.
My Lords, beyond the issue of
cost or delay is the wider
question of how to obtain a TIN
by the majority in a society
where there are several barriers
to public services such as
geographic, illiteracy,
financial and gender-specific
challenges. As was acknowledged
by this court in the case of
Attisogbe v CFC Construction Co.
(WA) Ltd & Reid [2005-2006]
SCGLR 858 at 872:”It is
unfortunate that illiteracy
remains a widespread phenomenon
in Ghana. It is a fact of which
judicial notice may legitimately
be taken.”
The bulk of the populace resides
in rural areas and operates in
the informal sector. GRA offices
may only exist in urban, high
populated areas and enforcing
these provisions will leave the
rest of the country without
proper access to the formal
justice system. There is no
doubt that it is not practical
for people in remote areas to
have easy access to a tax office
to obtain a TIN. The promise of
GRA to provide facilities for
registering persons for TIN at
court premises is noted but that
is outside the control of the
court for as the law stands it
is only taxpayers who are to
obtain TIN and how does a filing
clerk determine who is exempted
from tax.
It
is important that we maintain
the confidence that the ordinary
person has in our ability to
compel observance of the
Constitution by invalidating in
appropriate cases, enactments
that are in breach of
constitutional rights.
My Lords, from the foregoing, it
is my considered opinion that
the requirement under paragraph
2(8) of the First Schedule of
Act 915 that a person shall not
be permitted to file a case in
Court unless he quotes his TIN
is an unjustified interference
with the right of an individual
to access the court for justice.
It is an unreasonable
restriction and limitation on
the right to access the law
courts and therefore fails the
proportionality test.
We need to strike a balance
between the need for citizens to
pay tax and the need to
encourage free access to the law
courts which is one of the basic
characteristics of
constitutional democracy where
the rule of law is prevalent and
serves as a barometer to measure
good governance and
accountability in a country
through judicial review. .
Judicial review has been
described as a strong bulwark
against illegality and impunity
and insulates citizens against
their human rights violations.
It is through the vigilance of
persons like the Plaintiff
herein that actions can be taken
to protect the Constitution.
I do not think the decision we
are compelled to arrive at in
this case will be subversive of
the important public duty of
every citizen to comply with his
or her tax obligations as
expected by the Constitution and
revenue statutes. It is rather
a decision which seeks to
balance the democratic rights of
citizens as enshrined in the
Constitution to have unimpeded
access to justice in the courts
against bureaucratic
impediments, imposed obviously
in the public interest for the
GRA to collect revenue.
As Kpegah JSC said in Awuni v
West African Examination Council
[2003-2004] 1 SCGLR 471 at 499
to 500:
“I do not think this case is one
in which injustice to one
individual can be said to be of
no consequence because the
larger interest owed to society
is more important. And a nation
that stands by and looks on
while the rights of the
individual are slowly pecked at,
eventually pays the ultimate
price of finding its own rights
eroded… We accept some
limitation on the fundamental
rights of the individual only if
it is justified and
proportionate.”
[Emphasis mine]
In the instant case, enforcing
these provisions will deprive a
majority of people of their
right to exercise their
fundamental human right to
access justice which is not only
against the spirit and tenets of
our 1992 Constitution but also
against international
conventions to which Ghana as a
truly constitutional and
democratic state is committed.
Also, Date-Bah JSC in Adofo
v. Attorney-General & Cocobod
[2005-2006] SGCLR 42 at page
51 of the report said:
"The unhampered access of
individuals to the courts is a
fundamental prerequisite to the
full enjoyment of fundamental
human rights. This court has a
responsibility to preserve this
access in the interest of good
governance and
constitutionalism. Unhampered
access to the courts is an
important element of the rule of
law to which the Constitution,
1992 is clearly committed.
Protection of the rule of law is
an important obligation of this
court."
He added that:
"A further reason for
prohibiting the barring of
access to the courts is that it
brings into question the very
function of the judiciary. Under
our Constitution, 1992, the
judiciary is given the role of a
watch-dog against abuse or
excess of power by the executive
or the legislature. This
function of the judiciary as a
third pillar of responsible and
accountable government would be
undermined by the ouster of the
jurisdiction of the courts in
any matters relating to
justiciable rights.”
Though there is of lack of
clarity in the Plaintiff’s
submissions in respect of
juveniles, I appreciate its
concern, as a juvenile can only
access the courts by a next
friend. This person being an
adult may require a TIN before
filing a court process on behalf
of his next friend who is a
juvenile. The said provisions
are therefore overbroad as it
affects the rights of juveniles
to access justice in both
criminal and civil cases.
From the foregoing I have no
hesitation to reach the
conclusion that the said
paragraphs 1(9) and 2(8) of the
First Schedule of Act 915
clearly offend the letter and
spirit of the Constitution as
they violate the right of access
to law courts by persons in
Ghana including juveniles. These
provisions are in contravention
of Articles 2(1), 33(1),
130(1), 132, 133(1), 135,
137(1), 140, 273 (1) and (5) and
280 of the Constitution and the
same are unconstitutional, void
and of no effect; and I so
declare.
I will therefore resolve issues
2 and 3 in favour of the
Plaintiff save paragraph 2(9)
for the following reasons.
The use of the word ‘or’ after
the punctuation comma, at the
end of paragraph 1(8) shows that
it is disjunctive from the next
paragraph, 2(9), which applies
to other official business not
listed in the preceding
paragraphs. Similarly the last
part of paragraph 2: “unless the
person quotes the Taxpayer
Identification Number issued in
respect of that person under the
System”, is not limited to the
courts but applies to the other
institutions listed in paragraph
1 and the activities mentioned
in paragraph 2 and is therefore
not affected by the declaration
of paragraphs 1(9) and 2(8) as
void and unconstitutional and
can therefore by applying the
severability test described
hereafter be severed from the
offending sub paragraphs.
Applying the Test of
Severability
This Court’s power to pronounce
on the constitutionality or
legality of legislations, acts
or omissions that are ultra
vires or where there exist
breaches, violations, conflicts,
or non-compliance with
constitutional requirements or
procedures, is exercised,
pursuant to articles 2(1) and
130(1). However, the Court
cannot modify or adapt the law
to bring it within the
lawmaker’s intent or purpose.
The proper approach is for the
Court to sever and strike down
the offending part, leaving
other parts intact and
unaffected by the exercise. See
Asare Bah III v
Attorney-General & Electoral
Commission [2010] SCGLR 463.
In applying the severability
test, I will strike down
paragraphs 1(9) and 2(8) of the
First Schedule of Act 915. I
will leave paragraph 2(9) intact
as well as the concluding
portion of paragraph 2 which
reads:”unless that person
quotes the Taxpayer
Identification Number issued in
respect of that person under the
System.”
Conclusion
On a true and proper
interpretation of the
Constitution I resolve issues 1
and 3 in favour of Plaintiff,
whilst issue 2 is resolved in
part in favour of the Plaintiff.
Accordingly, I grant reliefs (a)
and (b). I also grant relief (c)
in part.
Consequently, paragraphs 1 (9)
and 2 (8) of the First Schedule
of the Revenue Administration
Act, 2016 (Act 915) are hereby
struck down as unconstitutional
and in contravention of the
letter and spirit of articles
2(1) 130, 33(1), 48(2), 132,
133(1), 135, 137(1), 140,
273(1), 273(5) and 280 of the
1992 Constitution.
(SGD) S. O. A. ADINYIRA
(MRS.)
(JUSTICE OF THE SUPREME
COURT)
DOTSE JSC:-
I agree with the reasoning and
conclusion of my sister Adinyira
JSC.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
YEBOAH JSC:-
I agree with the reasoning and
conclusion of my sister Adinyira
JSC.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
BAFFOE – BONNIE JSC:-
I agree with the reasoning and
conclusion of my sister Adinyira
JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
BENIN JSC:-
I agree with the reasoning and
conclusion of my sister Adinyira
JSC.
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
PWAMANG JSC:-
I agree with the reasoning and
conclusion of my sister Adinyira
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
AMEGATCHER JSC:-
I agree with the reasoning and
conclusion of my sister Adinyira
JSC.
(SGD) N. A. AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
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