THE REPUBLIC vs. HIGH COURT FINANCIAL AND ECONOMIC DIVISION, EX PARTE: AFIA AFRICAN VILLAGE LIMITED, THE COMMISSIONER-GENERAL GHANA REVENUE AUTHORITY, ACCRA [2022]DLSC11715

THE REPUBLIC vs. HIGH COURT FINANCIAL AND ECONOMIC DIVISION, EX PARTE: AFIA AFRI... [2022]DLSC11715

Date	2022-03-09
Suit No.	CIVIL MOTION NO. J5/08/2022
Citation No.	[2022]DLSC11715

PWAMANG JSC (PRESIDING)

DORDZIE (MRS.) JSC

TORKORNOO (MRS.) JSC

HONYENUGA JSC

KULENDI JSC

SIMON OKYERE ESQ. FOR THE APPLICANT.

MAXWELL OWUSU BOADI ESQ. FOR THE INTERESTED PARTY.

[2022]DLSC11715
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													<main id="main" class="content" style="min-height: 60rem" >THE
REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH
COURT FINANCIAL AND ECONOMIC DIVISION<o:p></o:p>(RESPONDENT)<o:p></o:p>EX
PARTE: AFIA AFRICAN VILLAGE LIMITED<o:p></o:p>(APPLICANT)<o:p></o:p>THE
COMMISSIONER-GENERAL GHANA REVENUE AUTHORITY, ACCRA<o:p></o:p>(INTERESTED
PARTY)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0cm;margin-bottom:
.0001pt;mso-add-space:auto;text-align:center;border:none;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL MOTION NO. J5/08/2022&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:
9TH MARCH, 2022<o:p></o:p>

</div>COUNSEL<o:p></o:p>SIMON OKYERE ESQ. FOR THE APPLICANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

MAXWELL
OWUSU BOADI ESQ. FOR THE INTERESTED PARTY.<o:p></o:p>

</div>CORAM&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>PWAMANG JSC (PRESIDING), DORDZIE (MRS.) JSC, TORKORNOO
(MRS.) JSC, HONYENUGA JSC, KULENDI JSC<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNoSpacing" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;HONYENUGA,
JSC.<o:p></o:p>The
instant application was filed by the Applicant to invoke the Supervisory
Jurisdiction of the Supreme Court against the ruling of the High Court dated
the 2nd day of November 2019.&nbsp;
The said ruling is exhibited to the affidavit in support and marked as
Exhibit A2.&nbsp; The ruling was delivered
following the refusal of the Interested Party to refund the balance of the
compensation due to the applicant.<o:p></o:p>The
facts of this case as gleaned from the affidavit in support of the applicant’s
application for mandamus is that her Afia Beach Hotel (which included a vast
parcel of land was compulsorily acquired by an Executive Instrument No. 59
under the State Lands Act, 1962 (Act 125) dated 19th April 2016 and
gazetted on the 29th April 2016 for the MARINE DRIVE INVESTMENT
PROJECT.&nbsp; The parties agreed on a
compensation to be paid to the applicant in the sum of Forty-Five Million, Two
Hundred and Twenty-Two Thousand, Three Hundred and Ninety-Seven Ghana cedis (GH¢45,222,397.00).
The manner of payment was that the Ministry of Finance released a warrant to
the Ministry of Tourism who worked on it and submitted same to the Controller
and Accountant-General to pay the amount into the Ministry of Tourism account for
it to wire transfer the amount into the applicant’s account.&nbsp; The crux of the matter is that when the last
tranche of the money totaling GH¢5,222,397.00 was released to the Ministry of
Tourism for onward payment to the applicant, the Controller and Accountant-General
withheld an amount of GH¢2,116,679.78 as tax and paid GH¢3,105,717.22 to the
Applicant. Being dissatisfied with the development, the applicant drew the
attention of the Ministry of Tourism to the anomaly and thereafter, the
applicant caused a formal demand letter to be written to the interested party
for a refund but the latter refused the request.&nbsp; Based upon the refusal, the applicant applied
to the High Court for an order of Mandamus against the interested party for a
refund of the said amount.&nbsp; The applicant
alleged in her paragraph 14 of the affidavit in support that the interested
party owes a duty to refund the said amount under section 69 of the Revenue
Administration Act, 2016, (Act 915) or any other tax law.<o:p></o:p>The
interested party opposed the application and in his affidavit in opposition
raised three grounds for opposing the application; (1) that the payment to the
applicant was validly withheld because he was of subject to Capital Gains Tax.
(2) that the applicant was unable to show that the interested party was under
an existing and unquestioned obligatory duty under statute or otherwise to
refund the amount in dispute (3) the fact that there exists a Refund Account
under section 69 of the Revenue Administration Act, 2016 (Act 915) does not
mean that the Applicant had sufficiently demonstrated to either the interested
party or to the High Court that they were deserving of a refund of the tax
paid.<o:p></o:p>Upon
a demand by the applicant for the refund of the balance of the said
compensation, the interested party refused to refund same on the ground that
per section 41 of the Revenue Administration Act, 2016, (Act 915), the decision
to withhold the sum in dispute as capital gains tax is a tax decision and same
would be the subject of the dispute resolution mechanism under the said Act and
subsequently an appeal but not mandamus.&nbsp;
Based on the said grounds, the respondent submitted that the High Court
lacked jurisdiction to entertain an action for an order of mandamus. <o:p></o:p>The
High Court dismissed the application for mandamus as follows:<o:p></o:p>“In this case, what would be most essential to be
proven, to my mind, is the existence of an obligatory duty to refund monies due
to the Applicant on the part of the Respondent.&nbsp;
In my view, the Applicant has been unable to show that the Respondent
has under an existing and unquestioned obligatory duty under statute or
otherwise to refund the amount in dispute which he (or she) has failed to
do.&nbsp; This is without prejudice to the
fact that being a public officer, the Respondent could be subject to the order
of Mandamus where the elements are present.&nbsp;
To my mind, if the appropriate remedy were applied for in the proper
circumstances, the court might well have granted it.&nbsp; In this case, though it appears the procedure
adopted may have been improper. …The application is thus dismissed on
procedural grounds.”<o:p></o:p>It
is in respect of these orders that the applicant brought </main>