IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2019
ALPHA KAPPA ENTERPRISE - (Plaintiff)
OBUASI MUNICIPAL ASSEMBLY - (Defendant)
DATE: 10 TH JULY, 2018
SUIT NO: OCC 97/2018
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
Section 210 of the Local Government Act, 2016 (Act 936) provides:
“Notice of suit to be served on District Assembly.
(1) A suit shall not be commenced against a District Assembly until at least one month after a written notice of intention to commence the suit has been served on the District Assembly by the intending plaintiff or an agent of the plaintiff.
(2) The notice shall state the cause of action, the names and place of abode of the intending plaintiff and the relief which the plaintiff claims.”
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
1. 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.
In this application, the Defendant/Applicant herein is praying this Honourable Court to strike out the Plaintiff/Respondent’s writ of summons.
The applicant’s case is that the writ of summons and statement of claim did not comply with section 210 of the Local Government Act, 2016 (Act 936) and the Revenue Administration Act, 2016 (Act 915) specifically section 11 and Part 1 of the First Schedule. This is because in the estimation of the applicant the respondent never notified them about its intention to institute the instant action as required by section 210 of Act 936. Also, it is the contention of the applicant that counsel for the plaintiff did not endorse his Taxpayer Identification Number (TIN) on the writ of summons and that makes the process void ab initio. The respondent is opposed to the application. It contended that it complied with the statutory notice for the initiation of action against a District/Municipal assembly such as the defendant/applicant.
The respondent exhibited a Final Demand Notice letter (Exhibit AA1) as proof of notice to the applicant prior to the initiation of the action. It was also submitted by counsel for the respondent that the Taxpayer Identification Number as required by Act 915 does not oust the jurisdiction of the court to entertain a writ which is devoid of a lawyer’s TIN number as part of the endorsements. Counsel invited the court to dismiss the application. In this ruling, I shall first tackle the issue relating to the Tax Identification Number i.e. whether or not failure on the part of counsel for the plaintiff to endorse his TIN on the writ is fatal to the propriety of the writ. I shall then move on to determine whether the plaintiff/respondent complied with the statutory notice prior to the issuing of the writ against the defendant/applicant.
A careful reading of section 11 of Act 915 as well as Part 1 of the First Schedule of the Act shows 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. It is provided under section 8 (1) of the Legal Profession Act, 1960, Act 32 as follows:
"A person, other than the Attorney-General, or an officer of Attorney-General’s department, shall not practice as a solicitor unless that person has in respect of that practice a valid annual solicitor’s license issued by the Council duly stamped and in the form set out in the Second Schedule."
In the case of Henry Nuertey Korboe v Francis Amosa, unreported, Suit No. J4/56/2014, Supreme Court, Accra 21/04/2016, the Supreme Court, by a majority decision, affirmed its earlier ruling in Republic v High Court, Accra; Ex Parte Teriwajah and Henry NuerteyKorboe (REISS & CO GHANA LIMITED) (INTERESTED PARTY) which also bothered on section 8(1) of the Legal Profession Act 1960 (Act 32). By that majority decision, a solicitor who is not qualified to practice within a time frame is prohibited by section 8 of Act 32 to practice, and any process filed without a license should not be given any effect in law. Thus, for a court process filed by a lawyer to be valid, the annual solicitor’s license number must be endorsed on it. Unlike section 11 of Act 915 and Part 1 of the First Schedule of Act 915 which are general provisions dealing with different category of persons, section 8 (1) of the Legal Profession Act, 1960, Act 32 is a specific provision which regulates the conduct of lawyers in relation to filing of processes in court among other practices. Under section 8 (1) of Act 32 and on the authority of the cases cited above, lawyers are only required to endorse their chamber registration number and annual solicitor’s license number on the processes filed in court. Indeed, there is conflict between section 11 of Act 915 and Part 1 of the First Schedule of Act 915 which are general provisions on one hand and section 8 (1) of Act 32, a specific provision on the other. It is my considered opinion that this conflict can be resolved by the application of the generaliaspecialibus non derogant rule of interpretation. Generaliaspecialibus non derogant means that specific provisions will prevail over general provisions to the extent of any conflict. This maxim has been applied as regards the operation of different legislation and in relation to provisions within the same statute.
In Construction, Forestry, Mining and Energy Union v Hadgkiss  FCAFC 17 a Full Court of the Federal Court of Australia discussed the earlier authorities of the court relating to the maxim as follows:
“77 In Thomson Australian Holdings Pty Ltd v Trade Practices Commission  HCA 48; 148 CLR 150, the High Court referred to the maxim generaliaspecialibus non derogant ; that is, where there is a conflict between general and specific provisions the specific provisions prevail. Such a principle "is not a technical rule peculiar to English statutory interpretation. Rather it represents simple commonsense and ordinary usage": Effort Shipping Company Ltd v Linden Management SA (the Giannis NK)  UKHL 1;  1 All ER 495 at 513 per Lord Cooke; Hoffman v Chief of Army  FCAFC 148; (2004) 137 FCR 520 at 571.”
It is without doubt that this common law principle is applied when it accords with common sense and when the inconsistency between the provisions cannot be reconciled through ordinary interpretation.
In the case of Republic v High Court, Accra; ex parte PPE and Juric (Unique Trust Financial Services Ltd Interested party) [2007-2008] 1 SCGLR 118, our Supreme Court held that the special provisions override the general provisions on the same subject matter. The court cited Bennion as follows:
“Generalibusspecialiaderogant, where the literal meaning of a general enactment covers a situation for which specific provision is made by some other enactment within the Act or instrument, it is presumed that the situation is intended to be dealt with by specific provision. This is expressed in the maxim 'generalibusspecialiaderogant’ (special provision override general ones). Acts very often contain general provisions which, when read literally, cover a situation for which specific provision is made elsewhere in the Act. The maxim gives a rule of thumb for dealing with such a situation; it is presumed that the general words are intended to give way to the particular. This is because the more detailed a provision is; the more likely it is to have been tailored of it the precise circumstances of a case falling within it.”
See also Bonney & Others (No. 1) v Ghana Ports and Harbours Authority [2013-2014] 1 SCGLR 436 at 450.
Insofar as section 8 of Act 32 deals specifically with the competence of lawyers to practice, it overrides the provisions of Act 915 in respect of the filing of court processes. Therefore, counsel for the plaintiff did not err when he failed to endorse his TIN on the writ of summons.
Did the plaintiff/respondent serve notice on the defendant before initiating the action?
Section 210 of the Local Government Act, 2016 (Act 936) is in parimateria with section 127 of the repealed Local Government Act, 1993 (Act 462). In Kwabena Obeng and Eric Akwasi Prempeh v Kumasi Metropolitan Assembly and Another (2017) 115 G.M.J. 116, the Supreme Court per Dotse JSC commented on the legal effect of section 127 of Act 462 as follows:
“There is indeed no gainsaying the fact that section 127 of Act 462 is intended to afford the District Assembly and in this instance the Defendants an advance opportunity and knowledge to know beforehand identities of the intended plaintiffs and the nature, scope, content and magnitude of the reliefs intended to be claimed against them. The rationale for the above is quite obvious. What comes easily to mind is the fact that, quite often, actions commenced in the courts are all time bound. For example, in the instant case, it would have required the Defendants to have made the necessary enquires within 8 days and conclude whether they intended to contest the action against the over 2000 real Plaintiffs on behalf of whom the case was filed or instituted. It should have been quite apparent that, quite apart from the procedural timelines set out in the various procedure rules of the trial courts, to wit C.I. 59 of 2009, for the District Courts, and C.I. 47 of 2004 in respect of the Circuit and High Courts, the requirement of notice in section 127 of Act 462 also may afford an opportunity to the defendants to consider the necessity of settling the intended suit out of court. The crux and relevance of the notice is indeed to enable the Defendants assess their liability or otherwise within the period of notice. The requirements of this notice in section 127 of Act 462 are so critical and therefore basic that, if not complied with, it would result in the very mischief that the law was intended to cure.”
In the Kwabena Obeng case (supra) the plaintiffs had actually written a statutory notice but the court held that they failed to comply with all the requirements prescribed by the statute. The Supreme Court pointed out that the requirement that must be met by an intending plaintiff who intends to institute action against any Metropolitan, Municipal or District Assembly one month before the suit is served are: First, the notice must indicate the cause of action. Second, the names of the intended Plaintiff or Plaintiffs must be stated in the notice. Third, the place of abode of the Plaintiff or Plaintiffs must also be stated and fourth, the intended reliefs to be sought must be stated in the notice. In the instant case, the plaintiff/respondent insists that it complied with the statutory notice requirement as highlighted above.
The respondent is relying on the Final Demand Notice (Exhibit AA1) for comfort.
I have looked at the Final Demand Notice letter which was written to the Chief Executive of the Defendant Municipal Assembly by counsel for the plaintiff. Central to plaintiff’s compliance claim is the fifth paragraph of the letter which states:
“We Deem Cause Notice and hereby Cause Notice to you that upon receipt of this final demand notice within 14 days notice to settle all outstanding indebtedness we shall not hesitate to commence legal action for the recovery of the total amounts of (GHC67, 599.29) with interest and legal cost and shall levy all and or surcharge all cost/expenses for its recovery on you.”
With utmost respect to counsel for the plaintiff/respondent, by no stretch of imagination can the content of the Final Demand Notice letter be construed to mean Notice of an Intention to Institute Action Against the Defendant within the meaning of section 210 of Act 936. An intention to sue must be unequivocal not conditional. In the letter, the plaintiff only gave an indication that it would institute action if the defendant fails to accede to the demand for payment of the outstanding debt14 days after receipt of the letter. There was no clear notice of an intention to institute any action against the defendant/applicant. Indeed, a demand notice issued prior to a recovery action cannot be elevated to the status of statutory notice within the meaning of section 210 of Act 936. It therefore goes without saying that the plaintiff/respondent did not comply with section 210 of Act 936.
For the above reason, the application succeeds. The writ of summons filed by the plaintiff/respondent against the defendant/applicant is hereby struck out as premature.
There will be no order as to costs.