CHAPEL HILL SCHOOL LTD. vs. ATTORNEY GENERAL & ANOR. [2010]DLSC6401

Date	2010-05-05
Suit No.	CIVIL MOTION NO. J7/10/2009
Citation No.	[2010]DLSC6401

ATUGUBA J.S.C. (PRESIDING)

AKUFFO (MS) J.S.C.

DATE-BAH (DR) J.S.C.

OWUSU (MS) J.S.C.

BAFFOE-BONNIE J.S.C.

GBADEGBE J.S.C.

AKOTO- BAMFO (MRS J.S.C

PETER KORNOR FOR THE APPLICANT.

JOHN MERCER FOR THE 2ND RESPONDENT.

P. G. NAANA DONTOR CHIEF STATE ATTORNEY FOR THE 1ST RESPONDENT

[2010]DLSC6401
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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>ATTORNEY GENERAL &amp;
ANOR.<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL MOTION NO.&nbsp; J7/10/2009&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 5TH MAY, 2010<o:p></o:p>

P.
G. NAANA DONTOR CHIEF STATE ATTORNEY FOR THE 1ST RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp;ATUGUBA J.S.C. (PRESIDING), AKUFFO (MS)
J.S.C., DATE-BAH (DR) J.S.C., OWUSU (MS) J.S.C., BAFFOE-BONNIE J.S.C., GBADEGBE
J.S.C., AKOTO- BAMFO (MRS J.S.C. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
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</div>ATUGUBA, J.S.C: <o:p></o:p>This
application for Review raises a short point but involves important questions. <o:p></o:p>The
earlier decision of this court in this case has been reported, see In re
Assessment of Income Tax by The Commissioner of Internal Revenue; Chapel Hill
School v Attorney-General &amp; Internal Revenue Service (2009) SC GLR
432.&nbsp; The facts of the case are as stated
in the headnote thereof as follows: <o:p></o:p>“The appellant in this case, Chapel
Hill School, was originally established as the Takoradi Chapel Hill Preparatory
School in December 1962 by fourteen people who subscribed its Instrument of
Establishment and Governance as founders.&nbsp;
The instrument of incorporation purported to establish it as a corporation
sole.&nbsp; The appellant school was
subsequently incorporated under the Companies Act, 1963 (Act 179), as a company
limited by guarantee. However, in 2001, the appellant was incorporated as a
company limited by shares under the said Companies Act, 1963 (Act 179) <o:p></o:p>The Internal Revenue Service
(hereafter the second respondent), assessed the appellant tax for the years
1994 to 2004 in the sum of Gh¢39,864.40.&nbsp;
Subsequently, the appellant’s objection to that assessment was turned
down by the Commissioner of Internal Revenue.&nbsp;
The appellant Chapel Hill School therefore appealed to the High Court,
Sekondi, in July 2005, seeking a declaration that the appellant was an
educational institution of a public character and thus its income was exempt
from tax.&nbsp; It also sought an order for
the annulment of the tax assessments for the years 1994 to 2004.&nbsp; Even though the High Court found that the
appellant school was an educational institution serving the people of Takoradi
and its environs; and that the school was for the use and benefit of the
public, the court held that, that finding alone, did not make the appellant a
school “of a public character”&nbsp; The High
Court therefore dismissed the appeal.&nbsp;
Upon a further appeal to the Court of Appeal, that court also dismissed
the appeal. &nbsp;Being aggrieved by the
dismissal of its appeal by the two lower courts, the appellant brought the
instant appeal before the Supreme Court.” <o:p></o:p>On
these facts this court held (1) that the respondent was until it converted into
a company limited by shares, an educational institution of a public character
and (2) that therefore its income is exempted from tax.&nbsp; In this review application the applicant
contests the second limb of this court’s decision. Principles for entertaining Review applications:<o:p></o:p>The
Review jurisdiction of this court is laid down in article 133 of the
Constitution as follows: <o:p></o:p>"133.&nbsp;&nbsp;&nbsp; Power of the Supreme Court to review its
decisions <o:p></o:p>(1)
The Supreme Court may review any decision made or given by it on such grounds
and subject to such conditions as may be prescribed by Rules of Court. <o:p></o:p>(2)
The Supreme Court, when reviewing its decisions under this article, shall be
constituted by not less than seven Justices of the Supreme Court." <o:p></o:p>Pursuant
to this provision r.54 of the Rules of this court, C.I. 16 of 1996 provides
thus: <o:p></o:p>"54. Grounds for review <o:p></o:p>The
Court may review a decision made or given by it on the ground of <o:p></o:p>(a)
exceptional circumstances which have resulted in a miscarriage of justice; or <o:p></o:p>(b)
the discovery of new and important matter or evidence which, after the exercise
of due diligence, was not within the applicant’s knowledge or could not be
produced by the applicant at the time when the decision was given." <o:p></o:p>The
application in this case is not based on r.54 (b) relating to the discovery of
new evidence but on the preceding r (a) thereof.&nbsp; This provision itself is a codification of
the common law principle earlier laid down judicially.&nbsp; The typical rendition of this principle is as
laid down in Quartey v Central Services Co. Ltd. (1996-97) SC GLR 398 where at
399 Abban C.J. stated: <o:p></o:p>