REPUBLIC vs. COMMISSIONER OF INCOME TAX; EX PARTE NATIONAL EMPLOYERS MUTUAL GENERAL INSURANCE ASSOCIATION LIMITED [1980]DLHC2194

REPUBLIC vs. COMMISSIONER OF INCOME TAX; EX PARTE NATIONAL EMPLOYERS MUTUAL GE... [1980]DLHC2194

Date	1980-07-28
Suit No.
Citation No.	[1980]DLHC2194

TAYLOR J.

KWAME TETTEH FOR THE APPLICANT.

KUDJOVIE FOR THE RESPONDENT.

[1980]DLHC2194
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC <o:p></o:p>vs. <o:p></o:p>COMMISSIONER OF INCOME TAX; EX PARTE NATIONAL EMPLOYERS MUTUAL GENERAL
INSURANCE ASSOCIATION LIMITED <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1982-83] GLR 556<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
28 JULY 1980<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KWAME TETTEH FOR THE APPLICANT. <o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(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.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">&nbsp;(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.”<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 Taxation (Amendment)
Decree, 1972 (NRCD 97), and submitted that as the case is pending before the
Tax Commissioner certiorari does not lie and so the court has no jurisdiction.<o:p></o:p><o:p>&nbsp;</o:p>Moreover,
counsel maintained that the Tax Commissioner acts as a superior tribunal. He
submitted that in carrying out his judicial functions under the Taxation Act,
1971, as amended, the Tax Commissioner has the powers of the High Court.
Furthermore, he submitted that as an appeal from the Tax Commissioner was to
the Court of Appeal, the Tax Commissioner must be considered a superior court and
his acts are therefore not subject to the supervisory jurisdiction of the High
Court. To buttress his argument, counsel submitted that the former jurisdiction
of the High Court to entertain tax cases is now vested in the Tax Commissioner
and that that commissioner has exclusive original jurisdiction in all tax
cases.<o:p></o:p><o:p>&nbsp;</o:p>