Minority Suffers Another Defeat At Supreme Court Over E-Levy

The Minority in Parliament has suffered yet another defeat at the Supreme Court after its application for interlocutory injunction against the Electronic Transfer Levy (E-levy) was dismissed yesterday, Wednesday May 4, 2022.

In a unanimous decision of 7:0, the justices of the Apex Court dismissed the application from the three Members of Parliament (MPs) from the Minority side. The ruling means the controversial E-Levy which commenced on Sunday May 1 remains in force.

Before the latest ruling, the NDC Minority had fought on all fronts including physical exchanges on the floor of Parliament when the levy was first introduced by the Finance Minister, Ken Ofori-Atta, during the 2022 budget presentation.

They had also supported a suit filed by a University of Professional Studies-Accra (UPS-A) lecturer, Justice Abdulai, at the apex court where he challenged a position that the First Deputy Speaker of Parliament can vote while he presides as the Speaker.

The Minority Leader, Haruna Iddrisu led two of his colleagues, Mahama Ayariga (Bawku Central MP) and Samuel Okudzeto Ablakwa (North Tongu), to file an application at the Supreme Court on Tuesday, April 19, 2022.

“That since the constitutional validity of the passage of the Electronic Transfer Levy Act, 2022(Act 1075) is the gravamen of our claim before the Honourable Court, it is proper, just, and equitable that the Government of Ghana through the GRA or its officers and agents are restrained from commencing with the implementation of the Levy until the determination of the substantive suit before the Honourable Court,” portion of the writ said.

The Minority who walked out during the passage of the levy law on March 29, earlier filed a suit at the Supreme Court to prevent President Akufo-Addo from assenting to the bill.

The President, however, assented the bill into law regardless of the suit.

Subsequently, the Ghana Revenue Authority (GRA) commenced collection on May 1, 2022.

The new tax will see the deduction of 1.5% of the cost of selected electronic transactions by Ghanaians.

But the apex court panel of seven presided over by Justice Nene Amegatcher in a unanimous ruling said “greater hardship” will be caused to the Ghanaian if the Electronic Transfer Levy (E-Levy) is injuncted.

The court said, greater hardship will be caused to the general public than if granted and subsequently dismissed the application.

The court said “the balance of hardship tilt in favour of respondent” and the application is dismissed.

The court, however, directed the GRA to keep accurate transfers of proceeds received so that, after the substantive hearing, no one is disadvantaged if the decision goes in favour of the Applicants.

Moving the application on Wednesday May 4, counsel for the Plaintiffs Godwin Edudzie Tamakloe said, an irreparable damage would be caused to Ghanaians if the process is not halted.

He also contended that, at the time of the passage of the E-Levy only 136 were present which was below the 138 needed for the passage despite the records being corrected on March 31, to 137.

Counsel argued that, a member who was in the premises but was not in Parliament was counted subsequently.

Godfred Yeboah Dame, the Attorney-General while opposing to the grant of the application, prayed for the application to be dismissed.

According to the AG, the application has no cause of action and no factual statistics have been filed in the court regarding March 29 proceedings in Parliament.

The AG argued that, the Application, has no basis and should be dismissed especially when the bill has now been passed into a law.

Other members of the panel are Justice Prof. Nii Ashie Kotey, Justice Mariama Owusu, Justice Gertrude Torkornoo, Justice Yonny Kulendi, Justice Lovelance-Johnson and Justice Prof. Herrietta Mensah Bonsu.

Injunction application

The MPs had earlier filed a writ challenging the quorum that passed the controversial law.

But, their attempt to stop its implementation has failed.

In a motion notice for an application for interlocutory injunction filed at the Supreme Court on Tuesday, April 19, 2022, the NDC MPs want government restrained from commencing with the implementation of the Levy until the determination of the substantive suit before the Honourable Court.

They argue that, “a determination by the Honourable Court that the Electronic Transfer Levy Act, 2022(Act 1075) was passed contrary to Article 104(1) of the Constitution would render the Electronic Transfer Levy Act, 2022(Act 1075) null and void and of no effect.

“Therefore, it is judicially prudent that the Government of Ghana through the Ghana Revenue Authority or its officers and agents are restrained from commencing with the implementation of the Levy until the constitutionality of the passage of the Electronic Transfer Levy Act, 2022(Act 1075) is determined.”

The plaintiffs again contend that, “there are serious and weightier constitutional matters for the Honourable Court to determine, therefore, it is just and convenient that the implementation of the Levy by the Ghana Revenue Authority is temporarily frozen by the Honourable Court.”

“That unless the Ghana Revenue Authority is restrained, a subsequent nullification of the passage of the Electronic Transfer Levy Act, 2022(Act 1075) by the Honourable Court cannot restore the status quo.

“That unless the Ghana Revenue Authority is restrained, irreparable harm would be occasioned to the Plaintiffs and also to millions of citizens of Ghana and all other persons in Ghana on the basis that if the Honourable Court nullifies the passage of the Electronic Transfer Levy Act, 2022(Act 1075), the Government of Ghana would not be in the position to reimburse all the moneys paid by the millions of citizens of Ghana and all other persons. This will lead to the unfortunate situation of Government of Ghana unjustly enriching itself on the basis of an illegality at the expense of the citizens of Ghana and all other persons in Ghana.

“That if the Government of Ghana is not restrained from commencing with the implementation of the Electronic Transfer Levy and there is a subsequent nullification of the passage of the Electronic Transfer Levy Act by the Honourable Court, the Plaintiffs, millions of citizens of Ghana and other persons may engage in multiplicity of suits all over the country to retrieve moneys that Government obtained through a law declared to be unconstitutional. This will lead unnecessary expenses in litigation and also a nuclear meltdown in the administration of justice.

“That the Government of Ghana does not stand to suffer any irreparable harm and or inconvenience if the Ghana Revenue Authority is restrained from proceeding to implement the collection of the levy until the determination of the substantive suit.

“That the Plaintiffs having raised an allegation of a breach of the Constitution in the passage of the Electronic Transfer Levy Act, 2022(Act 1075), in order to avoid an incalculable damage, injury and inconvenience not only to the people of Ghana but as well as undermining the Constitution which is the supreme law of the land, the justice of the case demands that the implementation of the Electronic Transfer Levy Act, 2022(Act 1075) is put on hold until the final determination of the instant suit.

The motion is expected to be moved on May 4, 2022.