CHAPEL HILL SCHOOL LTD vs. THE ATTORNEY GENERAL, THE COMMISSIONER INTERNAL REVENUE SERVICE [2009]DLSC2478

CHAPEL HILL SCHOOL LTD vs. THE ATTORNEY GENERAL, THE COMMISSIONER INTERNAL REVEN... [2009]DLSC2478

Date	2009-07-22
Suit No.	CIVIL APPEAL NO. J4/25/2009
Citation No.	[2009]DLSC2478

ATUGUBA JSC (PRESIDING)

AKUFFO ((MS) JSC

DATE-BAH (DR.) JSC

OWUSU (MS) JSC

B. BONNIE JSC.

JOHN MERCER FOR THE APPELLANT

JONATHAN ANTWI FOR THE 2ND RESPONDENT

[2009]DLSC2478
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													<main id="main" class="content" style="min-height: 60rem" >CHAPEL HILL SCHOOL LTD<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY GENERAL, THE COMMISSIONER INTERNAL REVENUE
SERVICE<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/25/2009<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: 22ND JULY, 2009.<o:p></o:p>

</div>COUNSEL<o:p></o:p>JOHN
MERCER FOR THE APPELLANT<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">

JONATHAN
ANTWI FOR THE 2ND RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ATUGUBA
JSC (PRESIDING), AKUFFO ((MS) JSC, DATE-BAH (DR.) JSC, OWUSU (MS) JSC, B.
BONNIE JSC.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>DR.
DATE-BAH JSC:<o:p></o:p>&nbsp;Introduction<o:p></o:p>The
central issue in this case is the meaning to be given to the expression
“educational institution of a public character” within the context of the
Income Tax Act 1975 (SMCD 5) and the Internal Revenue Act, 2000 (Act 592).&nbsp; Unfortunately, the Court of Appeal wrongly
characterised this central issue in terms of whether the plaintiff school
qualifies as a public school.&nbsp; It
accordingly addressed the wrong issue when it sought to establish a dictionary
meaning for “public school” and “private school”, respectively.<o:p></o:p>It
seems clear that an educational institution may be characterised as being of a
public character, although it is privately owned.&nbsp; This much is clear from the Privy Council
cases of Dilworth and Ors v The Commissioner of Stamps;&nbsp; Dilworth and Ors v The Commissioner for Land
and Income Tax.&nbsp; [1899] AC 99.&nbsp; These two consolidated cases were heard on
appeal from the Court of Appeal of New Zealand.&nbsp;
In these cases, where a wealthy testator made a gift for the
establishment of an institution for the maintenance and education of boys who
are orphans or the sons of parents in straitened circumstances, the Privy
Council held that the institute, being an educational endowment in perpetuity
vested in trustees without personal interest therein, the whole beneficial
interest belonging exclusively and inalienably to the public, was a public
institution within the meaning of section 2 of the Charitable Gifts Duties
Exemption Act, 1883 of New Zealand.&nbsp; The
said section 2 was in the following terms:<o:p></o:p>“In this Act, the term ‘charitable
purposes’ includes devises, bequests, and legacies of real or personal property
respectively of whatever description to public institutions such as libraries,
museums, institutions for the promotion of science and art, colleges and
schools, or to hospitals, orphan, lunatic, or benevolent asylums,
dispensaries.”<o:p></o:p>While
it is not safe to transport the judicial interpretation of a specific statute
from a different jurisdiction into our jurisdiction, it is nevertheless
instructive to note that a common law court has not viewed the expression
“public institution” as limited to an institution that is publicly owned.<o:p></o:p>Lord
Watson, delivering the judgment of the Privy Council, said (at p. 109):<o:p></o:p>“Their Lordships have come to the
conclusion, not without hesitation, owing to the view taken by the Courts
below, that the Ulster Institute, as designed by its founder, does answer the
description of a public institution such as a school.&nbsp; It appears to them that, if the testator had
directed his trustees forthwith to hand over the administration and management
of the Ulster Institute to a public body in New Zealand, or if he had made his
bequest directly to such public body for the same purposes, the institute would
necessarily have been regarded as a public and not as a private
institution.&nbsp; What he has directed to be
done is in substance the same thing. &nbsp;His
trustees, to whom he has delegated the duty of building the institute and of
superintending its administration, are his trustees in this sense only – that
he appointed them.&nbsp; They have no personal
interest in the residue, which they hold only for behoof of those children,
members of the public, whom he has directed them from time to time to select as
the beneficiaries under the trust.&nbsp; The
bequest is an educational endowment in perpetuity, and the beneficial interest
in it is not vested in any private person, but belongs inalienably to the
public.&nbsp; Such being the character of the
charity founded by the testator, their Lordships do not think that the inmates
of the Dilworth Ulster Institute could with propriety be described as the
recipients of private education.”<o:p></o:p>&nbsp;This case appears to establish the principle
that where an institution renders services to the general public and there is
no beneficial interest in it vested in any private person, that institution can
be regarded as being public or of a public character.&nbsp; This principle is one that is worth exploring
for the purposes of this case.&nbsp; This is
because I think that construing “educational institution of a public character”
in the context of the statutes mentioned above as a publicly-owned school is
too simplistic and not sufficiently responsive to the nuanced complexities of
modern Ghanaian life.<o:p></o:p>There
is some advantage in borrowing some of the concepts of English charities law in
this context.&nbsp; The English Charities Act
2006 defines a charitable purpose as a purpose which falls within certain
descriptions of purposes in it and is for the public benefit.&nbsp; One of the descriptions of purposes relates
to education.&nbsp; The ‘advancement of
education’ is a description of purpose in section 2(2)(b) of the Charities Act
2006.&nbsp; Thus where there is advancement of
education for public benefit, this activity qualifies as a charity.&nbsp; This activity will so qualify even if it is
not carried out by a public body.&nbsp; Whilst
this Court is, of course, not bound by these statutory provisions, they provide
food for its thought.&nbsp; In the Ghanaian
context, the ideas underlying the English charities regime suggest that there
could be advancement of education for the public benefit, even if the provider
of it is a private body.&nbsp; For us, the
crucial elements would be public benefit and the absence of private benefit for
the providers of this “charity.”<o:p></o:p>The
Facts<o:p></o:p>The
facts of the case which have given rise to the issue highlighted above are as
follows:&nbsp; the appellant </main>