The Applicant/Respondent (hereafter called Applicant) filed a motion on notice on 22nd May, 2019 for an order to commit the Respondent/Applicant (hereafter called Respondent) for contempt under Order 50 Rule 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47). The Respondent did not however respond to the application, but chose to assault the originating process per a motion dated 4th June, 2019 filed for and on his behalf by their lawyer. In the said motion the respondent prayed for an order to struck out the action of the Applicants’ on the grounds that Applicants failed to “supply” the Registry of the Court with their Tax Identification Number (TIN) as required by section 11 and Part 1 section 2 of the Revenue Administration Act, 2016 (Act 915).

Counsel for the Applicant at the hearing of the application to struck out his originating motion, also invoked similar grounds against the respondent’s motion under what he described as a preliminary legal objection to the motion to struck out the action, by contending also that the respondent’s application to struck out his action did not also disclose his TIN. Given the respective submissions of both counsels, the court, being of the view that, similar questions of law had been raised, ordered both lawyers to file their legal submissions to the question whether or not a party is required to submit/disclose/show/supply their TIN under the aforementioned legal framework or regime at the time of filing an action, and if so, the legal consequences of a failure to submit/disclose/show/supply the TIN. At the time of writing this ruling only the counsel for the respondent has complied with the order to file legal submissions.

Facts

Before proceeding to deal with the law, it is pertinent to set out the facts which are discernable on the face of all the processes filed. Firstly it is quite apparent on the face of the respective motions that none of the parties had disclosed their TIN on the process. However, what is evident is that the Respondent commissioned a search which disclosed that the Applicant did not provide his TIN at the time he was filing his contempt application at the Registry of the Court. No such conclusive certainty may be inferred in respect of the motion filed by the Respondent in my view because the Applicant did not file any affidavit in opposition against the motion filed by the Respondent.

Endorsement

The first question to determine is whether or not a party is obligated in law to endorse on the originating court process his or her TIN. Section 11 (2) thereof of Act 915 provides as follows:

(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

It is further stated in Part 1 section 1(9) of the First Schedule of Act 915 that the Taxpayer Identification Number System applies to the Courts. Finally Part 1 Section 2 (8) and (9) provides that:

“A person shall not be permitted (8) to file a case with the Courts, unless that person quotes the Taxpayer Identification Number issued in respect of that person under the System”.

These two provisions under Act 915 in my view provide the statutory framework under which the present legal issue will be discussed. Therefore in order to understand what these provisions mean, it is important to put meaning these provisions. It is trite law that in the construction of statutes preference is given to the purposive approach to interpretation. In the case of Ghana Muslim Representative Council and Other v. Salifu and Others [1975] 2 GLR 246 at 246, the Court of Appeal stated as follows:

“In construing a statute, the primary duty of the Court is to ascertain the general purport of that legislation from the words actually used in the statute. This is what is called the golden rule of statute interpretation formulated by Park B in his oft-quoted dictum in Burcke v Smith [1836] 2 M & W 191 at 195:

“It is a very useful rule, in the Construction of a statute, to adhere to the ordinary meaning of the word used: and to the grammatical construction, unless that is, at variance with the intentions of the legislature, to be collected from the statute itself or leads to any manifest absurdity or modified so as to avoid such inconvenience, but no further.”

In the case of Republic v Elizabeth Bentil and another; Exparte Abrewatia Esther Esi Attach Afful (suit Number D16/02/2018), unreported judgment delivered by Justice Kofi Akuffo, J on 11th February, 2019 at the High Court, Nsawam, the learned justice stated as follows:

“It is trite learning that the purposive approach to interpretation is the preferred option in the modern era. The purposive approach looks to the intention and purpose rather than the precise meaning of the words used. In seeking to achieve the intention and purpose, consideration is given to scope, background and context”

Finally the respected Jurist V.C.R.A.C. Crabbe in his book “Understanding Statutes” at page 60 stated that “A court will look at the context, the collection and the object of the words relating to the matter in hand in order to interpret the meaning of the words according to what would appear to be the meaning to be conveyed by the use of the words...”

It is trite that the purpose of the TIN is to uniquely identify tax-paying entities for purposes of identification, reporting and record keeping. Under the repealed Tax Payers Identification Number Act System, 2002 (Act 632), the purpose of the TIN was set out in the preamble as a “system under which taxpayers are given identification numbers for official transactions with public institutions...” Indeed the TIN also provides the facility for the revenue collecting authority to track and manage the tax accounts of entities. It is therefore my view that the purpose of the said provision in the law is to enable the revenue authorities to track the activities of entities relation with agencies for purposes of effective tax administration.

Given this background, my understanding of section 11 (2) of Act 915 is that of a mandate given to an institution authorised by the Commissioner –General to request of or for that matter make a demand on any person who wishes to conducts official business with that institution for their TIN.

A convenient argument may be that once the Registrar had admitted the process to be filed, it may be presumed that what ought to be done is presumed to be regularly done. Counsel for the Respondent invited the court to apply the principle in the case of Seidu Mohammed vrs. Saanbaye Kangberee (2012) 2 SCGLR 1182 at 1185 where the court stated that “there was a presumption of regularity in law which had been given recognition in section 37 of the Evidence Act, 1975 (NRCD 323), providing that: It is presumed that an official duty has been regularly performed. That meant that institutions of state like the Lands Commission, Survey Department and the Land Title Registry were presumed to conduct their affairs with a certain degree of regularity in line with the statutes that had established them. Thus, unless there was strong evidence to the contrary, such a presumption would be upheld”.

Counsel for the Respondent also referred to the court to the unreported decision Cecelia Abla Eklu v Luke Borkor quashie, suit No. LD/0131/19 date 30th January, 2019, the court considered a similar matter and held that:

“Act 915 provides inter alia that a person shall not be allowed to file a case in court if that person does not provide a Tax Identification Number (TIN). The Act however does not state that the TIN should be stated on the Writ of Summons. For the Plaintiff having been able to file the Writ without any issues, it raises a presumption that the requisite statutory requirements were complied with...”

I respectfully do not agree with counsel for the respondent in respect of the application of these two cases to ground a finding that a person ought not to disclose his or her TIN on an originating court process and therefore a presumption of regularity ought to be apply once the Registrar issues the process.

My view is predicted on the fact that section 11(2) of the Act cannot be read in isolation. My view is that it must be read together with Part 1 Section 2 (8) and (9).

My hold the view that, as indicated earlier, section 11 (2) thereof of Act 915 only mandates the various institutions authorised by the Commissioner-General to request for TIN numbers. This is because the provision is specifically directed or targeted at these institutions. To put it in a simpler way the subject matter of section 11 (2) are the institutions targeted by the Commissioner-General and no other. This obligation is a statutory obligation on these institutions therefore it is immaterial whether the TIN is formally requested by the officer manning the duty post or not as far as the court user is concerned. It must be presumed that the institution qua institution had made the request by default because it has been given the power to do so. So whether or not the Institution had provided avenues for the user to submit his TIN of the face of the process is immaterial and does not constitutes a defence be invoked by any person not listed in the relevant schedule. I take the view that this provision rather establishes a regulatory relationship between the revenue agency and the institutions named under the schedule.

On the other hand there is a second obligation in my view which is targeted at users of government services as contained, and as far as the court is concerned, in Part 1 Section 2 (8) and (9) which provides that “A person shall not be permitted (8) to file a case with the Courts unless that person quotes the Taxpayer Identification Number issued in respect of that person under the System.”

The operative phrase in my view is meaning of the word “quotes” as used in the law. I take the view that the meaning of the word “quotes” within the context of the statute means to repeat or copy out the TIN. I do not conceive of any other obligation or exception. Therefore the question is what the intention of the framers was when they indicated that a person quotes their TIN. In Cecilia Abla Eklu case (supra), the learned justice is said to have indicated that “The Act however does not state that the TIN should be stated on the Writ of Summons”.

With all due respect to the learned justice in that case, I struggle to identify with this argument. I struggle because my view is that it can very clearly to inferred from the provision that since all originating processes are formal, an obligation to quote would naturally mean an obligation to repeat or copy out the TIN on the originating process or whatever process. I take the view that the legislators ought not to burden or limit themselves to specifically naming any all the processes in the parent Act, otherwise a new schedule would have to be created listing all the processes capable of being filed at all the various institutions of state. I also do not agree with the school of thought that because Order 2 rule 5 of CI 47 do not mention disclosure of the TIN, a non-disclosure is not fatal. My view is that statute law trumps procedural law any day, according, granted that the CI 47 is silent on the issue, the law as I have already discussed obligates a party to quote the said TIN on the process. Therefore I hold the view that under the various sections referenced earlier, all court users are obligated to quote their TIN number when they first set to interface or conduct business with the Court.

Conclusion

In the instant matter, as I have stated in earlier paragraphs, the motion to commit for contempt is the originating motion on notice. On the face of the said motion paper, no reference or disclosure of the TIN number was rendered. The law is quite clear that a person cannot access government services without providing his or her TIN, access to justice is a government service and hence, I take the view that a failure to quote the TIN may imply that one does not have a TIN number. Accordingly, because one cannot access government services without a TIN, the legal effect is that this application cannot be admitted by the Court. In the circumstances therefore, the substantive application is hereby struck out for failing to disclose TIN on the process. Because both applications failed the test prescribed above. I do not find is necessary to award cost in this matter.

EMMANUEL ATSU LODOH

(JUSTICE OF THE HIGH COURT)