DR ARCHIBALD FREDERICK MCKENZIE BADOE vs GOLD COAST FUND MANAGEMENT LTD
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    KUMASI - A.D 2019
DR ARCHIBALD FREDERICK MCKENZIE BADOE - (Plaintiff)
GOLD COAST FUND MANAGEMENT LTD - (Defendant)

DATE:  13 TH DECEMBER 2018.
SUIT NO:  OCC 25/2019
JUDGES:  JUSTICE DR. RICHMOND OSEI-HWERE HIGH COURT JUDGE
LAWYERS:  MARIAM AGYEMAN GYASI JAWHARY (MRS) FOR THE PLAINTIFF
EMMANUEL AMOAH FOR THE DEFENDANT
RULING

 

On 22nd October, 2018, the Plaintiff filed a writ against the defendant for the following reliefs:

 

a)    An order for the payment of the total sums GHC328, 127.43 (Three Hundred and Twenty-Eight Thousand, One Hundred and twenty-seven Ghana Cedis, forty-three pesewas) being the principal sum placed by the Plaintiff with the Defendant as a structured finance investment and which investment matured on 5th September 2018 and ought to have been paid to him at the said date of 6th September 2018 but which sum the Defendant has failed to pay despite repeated demand since 10th September 2018.

 

b)    An order for the payment of all sums due the Plaintiff from the Defendant on the sum of GHC328, 127.43 (Three Hundred and Twenty-Eight Thousand, One Hundred and twenty-seven Ghana Cedis, forty-three pesewas) stated I relief (a) supra since 6th September 2018.

 

c)    An order for the payment of the sum of GH50, 000.00 (Fifty Thousand Ghana Cedis) and accrued interest thereon invested by the Plaintiff with the Defendant on 24th August 2018 till date of final judgment.

 

d)    An order for the payment of interest on the principal sum of GHC328, 127.43 (Three Hundred and Twenty-Eight Thousand, One Hundred and twenty-seven Ghana Cedis, forty-three pesewas) at the prevailing commercial bank lending rate at the date of the judgment or in the alternative at the rate of 27% being the rate of interest the Defendant was paying to the Plaintiff on his structured investment with the Defendant.

 

e)    Cost including legal fees

 

 

 

In this application, the plaintiff/applicant is praying this court for an order entering judgment in default of defence pursuant to Order 13 rule 1 of the High Court (Civil Procedure Rules), 2004, CI 47. The grounds of the application are contained in the affidavit in support filed by the applicant on 28/11/2018. The defendant/respondent failed or refused to file an affidavit in response. However, after counsel for the applicant had moved the motion, counsel for the respondent responded on a point of law.

 

 

 

Counsel for the respondent took aim at the propriety of the application as well as the processes filed prior to the instant motion. Counsel quoted the Revenue Administration Act, 2016 (Act 915), section 11(2) and submitted that per the statutory provision, the plaintiff/applicant ought to have endorsed his Tax Identification Number (TIN) on the writ of summons, statement of claim as well the processes relating to the instant motion on notice. He submitted that the applicant’s noncompliance with section 11(2) supra makes the processes filed so far void and invited the court to set them aside.

 

 

 

In a rebuttal to the point of law, counsel for the applicant submitted that counsel for the respondent’s interpretation of section 11(2) of Act 915 should not be adopted by the court. She submitted that the applicant did not issue the processes himself and that the Act did not say that a party must endorse the TIN on a process to trigger the jurisdiction of the court. She argued that the requisite endorsement can be found under Order 2 rule 5 of CI 47. Counsel also submitted that the requirement of a TIN is for the purposes of revenue generation and just as unstamped documents are admitted in evidence subject to stamping, the processes filed could be entertained subject to the production of the TIN. Counsel also argued that per the statement of claim, the applicant is a pensioner and as such does not need a TIN to conduct business in court.

 

Section 11 of the Revenue Administration Act, 2016 (Act 915) states:

 

“11. Taxpayer Identification Number or Tax Clearance Certificate

 

(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; or

 

(b) a Tax Clearance Certificate from a person applying for the matters or engaged in the transactions listed in column two of Part II of the First Schedule.”

 

Part 1 of the First Schedule of Act 915 also provides:

 

“The Taxpayer Identification Number System

 

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. 2. Use of Taxpayer Identification Number for specified transactions

 

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, (Act896);

 

(8) to file a case with the Courts; or

 

(9) conduct any official business with the institutions and persons specified in paragraph1, unless that person quotes the Taxpayer Identification Number issued in respect of that person under the System.”

 

 

 

A careful reading of section 11 of Act 915 as well as Part 1 of the First Schedule of the Act show clearly that the TIN is used to access stated services under the Act by persons. These services include the filing of a case in court. Indeed, the ultimate goal of the TIN is to identify individuals for tax purposes; which is why parties are expected to show their TINs before accessing stated services under the Act and that a person without a TIN shall not be permitted to file a case with the court. The provision does not require a party who initiates an action in court to endorse his TIN on the court processes. Endorsements on court processes by a plaintiff are governed by Order 2 rule 5 of CI 47. It provides:

 

“Rule 5—Indorsement as to Plaintiff

 

(1) Before a writ is filed by a plaintiff it shall be indorsed

 

(a) where the plaintiff sues in person, with the occupational and residential address of the plaintiff or if the plaintiff resides outside the country, the address of a place in the country to which documents for the plaintiff may be served; or

 

(b) where the plaintiff sues by a lawyer, the plaintiff shall, in addition to the residential and occupational address of the parties, provide at the back of the writ the lawyer's firm name and business address in Ghana and also, if the lawyer is the agent of another, the firm name and business address of his principal.

 

(2) The address for service of a plaintiff shall be

 

(a) where the plaintiff sues by a lawyer, the business address of the plaintiff or the plaintiff's lawyer or the plaintiff's lawyer's agent as indorsed on the writ; or

 

(b) where the plaintiff sues in person, the plaintiff's address in the country as indorsed on the writ.

 

(3) Where a lawyer's name is indorsed on the writ, the lawyer shall declare in writing whether the writ was filed by the lawyer or with the authority or consent of the plaintiff, if any defendant who has been served with or who has filed appearance to the writ, requests the lawyer in writing to do so.

 

(4) If the lawyer declares in writing that the writ was not filed by the lawyer or with the authority or consent of the plaintiff, the Court may, on application by any defendant who has been served with or who has filed appearance to the writ, strike out the writ.

 

(5) Where the address of the defendant after diligent search is not known, the plaintiff shall indicate on the writ that the plaintiff shall direct service.”

 

 

 

In the instant case, the plaintiff/applicant has complied with the rules of procedure under Order 2 rule 5; he is therefore at liberty to enforce his right flowing from the writ of summons and statement of claim. Once the writ has been issued from the Registry and filed by the plaintiff, there is a presumption of compliance with section 11(2) of Act 915. This is because per the provision, display of a TIN precedes the issuing of writ and that the registry is not expected to issue a writ to a plaintiff and allow same to be filed if a TIN is not produced by the party. It is the law that any official act shall be entitled to a presumption of correctness and shall not be disturbed unless the act was procured by fraud or mistake.

 

 

 

This is one of the rebuttable presumptions provided for in section 37(1) of NRCD 323 as follows: “It is presumed that official duty has been regularly performed.” This presumption of regularity of official acts only fails when rebutted by clear and satisfactory proof. In the instant case, the plaintiff/applicant is not required to endorse his TIN on the writ and other processes filed by him, thus in the absence of any clear evidence that he has not complied with Act 915, it is presumed that same was complied with. I also agree with counsel for the applicant that noncompliance with Act 915 can only render the processes filed voidable rather than void. The result is that the legal objection has no merit.

 

 

 

Consequently, the application succeeds. Final judgment is hereby entered in favour of the plaintiff/applicant in relation to reliefs a to d of the claim. Costs of GHc 40,000.00 awarded against the Defendant.