POKUPHARMA LIMITED VRS GHANA REVENUE AUTHORITY, STANBIC BANK GHANA LIMITED

IN THE SUPERIOR COURT OF JUDICATURE,

IN THE HIGH COURT OF JUSTICE, STATE DEBT RECOVERY CASES SITTING IN GENERAL JURISDICTION SIX HELD AT ACCRA ON MONDAY THE 14TH DAY OF JULY, 2025 BEFORE HIS LORDSHIP, JUSTICE GEORGE AIKINS AMPIAH-BONNEY (JNR.)

SUIT NO. GJ/0166/2024

POKUPHARMA LIMITED                                                                        PLAINTIFF

VERSUS

1.     GHANA REVENUE AUTHORITY

2.     STANBIC BANK GHANA LIMITED

DEFENDANTS

TIME: 9:20 A.M.

PARTIES

Absent

COUNSEL

Stanley Boye-Quaye Esq for the Plaintiff - Present Maxwell Owusu Boadi Esq for the 1st Defendant - Present Henry Myles-Mills Esq for the 2nd Defendant-Absent

JUDGMENT

The Plaintiff a notable pharmaceutical manufacturing company in Ghana avers that the post clearance Audit Department of Customs Division of the 1st Defendant conducted a post-clearance audit, under Customs import transactions between January 2015 and 31st December 2020.

According to the Plaintiff, per reason of the said re-assessment, the 1st Defendant wrongfully served a Third Party Debtor Notice on the Plaintiffs bankers making it impossible for them to transact any business which caused Plaintiff much harm with reputational loss.

In response, 1st Defendant explains that they had the right to apply provisions of the Revenue Administration Act (ACT 915) to issue a third party debtor notice to enforce the Plaintiffs Tax obligation.

Dissatisfied with that, Plaintiff issued the instant writ and amended same on 13th November 2023 praying for the following reliefs;

i.             A declaration that the 3rd party debtor notice issued by the pt Defendant against the Plaintiff bank account with the 2nd Defendant is unlawful.

ii.           An order setting aside the 3rd party debtor notice issued by the pt Defendant against the Plaintiff bank account with the 2nd Defendant.

iii.          Damages against the pt Defendant.

iv.               Cost including solicitors fees.

At the close of pleading the following issues were set down for the determination of trial;

1.     Whether or not the Revenue Administration Act 2016(Act 915) is applicable to transactions under the Customs Act 2015, Act 819.

2.     Whether or not the pt Defendant is empowered by the Revenue Administration Act (2016) Act 915 to issue 3rd party debtor notice to recover tax debts.

Applicable Law:

This Court having given a narration briefly of the respective cases of the parties will proceed to state briefly what the law requires of them to prove their respective cases.

The position of the law in civil cases is that, the standard of proof of allegations is proof by preponderance of probabilities. It is only when crime is pleaded or raised in the evidence that the allegation sought to be proved must be proved beyond reasonable doubt.

See the case of FENUKU vs. JOHN TEYE (2001-2002) SCGLR 985.

The combined effect of Sections 10, 11 and 12 of the Evidence Act 1975 (NRCD 323) requires that, he who asserts must prove and that proof in civil cases requires proof on the balance of probabilities.

See: ENEKWA AND OTHERS VS. KWAME NKRUMAH UNIVERSITY OF SCIENCE AND TECHNOLOGY (KNUST) (2009) SCGLR 242 AT 248 AND ABBEY AND OTHERS VS. ANTWI (2010) SCGLR Page 17 at 25-26.

The case of ABABIO vs. AKWASI (1994-95) part 2 GBR page 774, aptly state the rule on the Burden of Proof in Civil cases as follows:

"It is trite learning that, the party who raises in his pleadings an issue essential to the success of his case assumes the burden of proving it. The burden only shifts to the defense to lead sufficient evidence to tilt the scales in his favour when on a particular issue Plaintiff leads some evidence to plead his claim. If the Defendant succeeds,,.i,n, ,doin:.. g this, he wins, if not, he loose on that particular issue."

The case of ACKAH VS. PEGAH TRANSPORT LIMITED AND OTHERS (2010) SCGLR 728,

provides guidelines as to the kind of evidence that Plaintiff is required to adduce to prove her allegation. It was held in that case that;

"It is the basic principle of law on evidence that, a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the parties and material witnesses, admissible hearsay, and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as a Jury. It is trite low that, matters that are capable of proof proved by producing sufficient evidence or that, on all the evidence a be reasonable man could conclude that the existence of the fact more reasonable its non-existence. The requirement of the law on evidence under Section 10 and 11 of the Evidence Decree"

Per Adaryim JSC (Mrs) in the case of BISI TAB/RI AKA ASARE (1987-88) I GLR 360, the Supreme Court clarifies the rule as to the Standard of proof required of Plaintiff in a Civil action. This case holds that the obligation of the party who bears the burden of proof was to lead such evidence as will tilt in his favour the balance of probabilities on the particular issue.

It is salient to note that, the parameters so to speak, which trail Court adopts as guidelines in determining cases involving Declaration of title to land, recovery of possession and perpetual Injunction established by a number of decided cases by Court competent jurisdiction over time have been outlined below:

a.                  The party claiming ownership to the disputed Plot or a party Counter-claiming for a declaration of title to the said disputed property as a matter of law .carries that burden of identifying positively the boundaries of the land in dispute:

b.                   That the party must show isolated acts of ownership;

c.                  He must also discharge the burden of persuasion on him that, he is entitled to his claim without necessarily relying on the weakness in the other party's case.

It also remains to mention that, it is critical that, in an action for declaration of title to land, the party claiming same has to lead cogent evidence tracing his or her roots of title.

In the case of MONDIAL VENEER (GH) LIMITED VS. AMUAH GYEBU XV (2010) SCGLR PAGE

466 Georgina Wood CJ (as she then was) held as follow: -

The law requires that, the person asserting title and on whom the burden of persuasion falls, as in the instant case to prove the root of title, mode of acquisition, and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party will be entitled to the claim. "

The Supreme Court reiterated this position of the law in YEHANS INTERNATIONAL LTD. vs. MARTEY TSURU FAMILY (2019-20) SCGLR 838 where the Court speaking through Adinyira JSC observed as follows:-

"a person who seeks a declaration of title to land must prove

(i)                           his root of title

(ii)                         the mode of acquisition of the land and

(iii)                       the various acts of possession exercised over the disputed land"

See also the following cases:

AWUKU vs. TETTEH (2011) 1 SCGLR 366, AKOTO vs. KAVEGE (1984-86) 2 GLR 365, ABAKAM EFFIANA FAMILY & OTHERS vs. MBIBADO EFFIANA FAMILY & 2 OTHERS (1959) GLR 362.

By the nature of the Issues emanating from the pleadings and the pleadings itself, Court was of the opinion that parties through their Counsel could or should rather file written legal addresses simultaneously and do a summing up viva voce in open Court.

I wish to congratulate both lawyers for their in-depth legal submissions.

On the second issue, the Plaintiff submits and confirms the veracity of the fact that the 1st Defendant is empowered by Section 60 of Revenue Administration Act to issue 3rd party notices to recover Tax Debts owed to the State and to enforce compliance with the provisions of the Income Tax Act and Value Added Tax Act together with others and thereby relinquishes to join issue with the Defendants.

As regards the position of the law in circumstances where the evidence produced by a party corroborates that of his adversary, the Court of Appeal has pronounced the following in the under-listed cases:

In the Court of Appeal case of Adjetey Adjei v. Seidu Abubakar And Lands Commission (2012) JELR 64782 (CA) bearing Civil Appeal No.:Hl/61/2012 and dated ]()11' May 2012, affirming binding Supreme Court decisions, the Court said: "The plaintiff/respondent's case illustrates the classic instance wherein the evidence produced by a party corroborates that of his adversary. In such situation, the Court ought to find for the party whose case has been corroborated by his adversary. See: Asante vrs.Bogyaabi (1966) G.L.R. 232 S.C., Banahene vrs. Adinkra (1976) 1 G.L.R. 346, C.A., Agyama vrs. Opuni (1987-

88) 1 G.L.R. 47 S. C. at 50".

In the Court of Appeal case of Mockpar Komong v. Daabil Kon/an Wauk (2016) JELR 69635 (CA) dated 29th February 2016 which affirms binding Supreme Court decisions and bears Civil Appeal No.:

Hl/712015: "The position of the law was enunciated by the Supreme Court in the case of The Republic vrs Nana Akuamoah Boateng II Ex parte Dansoa & Anor [1982-83J 2 GLR 913, that, the duty of the court where one party's evidence is corroborated by his opponent's witnesses and the opponent's evidence

stands uncorroborated, the court must prefer the corroborated evidence.

The Court cited the case of Osei Yaw vrs Dom/eh [1965) GLR 418 SC in which it was opined as follows: "Where the evidence of one party on an issue in a suit is corroborated by witness of his opponent, whilst that of his opponent on the same issue stands uncorroborated one, unless for some good reason (which must appear on the face of the judgment) the Court finds the corroborated version incredible or impossible." See also Manu vrs. Nsiah [2005-06) SCGLR 25 at 33.

The sole issue for determination is whether or not the Revenue Administration Act 2016, Act 915 is applicable to transactions (such as issues) under the Customs Act 2015, Act 819.

The Plaintiff described the 1st Defendant as an Umbrella Organisation that supervises all major government Revenue collecting agencies in Ghana namely the Customs Division and the Domestic Tax Revenue Division and acknowledged that the Revenue Administration Act 2016 (Act 915) Customs Act, Act 819, Income Tax Act 2015(Act 896 Value Added Tax Act 2013 (Act 87) are all subject to full operations of the Ghana Revenue Authority Act 2009 (Act 791) as amended.

Indeed I will also endeavour to add other Acts that are under the umbrella of Ghana Revenue Authority and their foundational law GRA, Act 2009, and Act 79 as follows;

J. Excise Duty Act (2014) Act 878 stamp duty act 2005(Act 689)

2.       Communication Service Tax 2008 Act 754

3.     The National Fiscal Stabilization Levy Act 2013 (Act 862) as amend.

4.     Energy Sector Levies Act 2013 Act 899

5.       Electronic Transfer levy Act 2022 (Act 1075)

6.     Environmental Excise Duty Act 2024, (Act 2024)

7.     Transfer Pricing Regulation 2020 (LI 2412)

8.     Customs Regulation 2016 (LI 2248)

9.     Tax Exemption Act 2022 (Act 1083).

JO. Public Financial Management Act 2016 (Act 921)

11.   Special Petroleum Tax Act 2014 (Act 879)

12.   Free Zones Act 1995 (Act 504)

13. Minerals and Mining Act 2006 (Act 703).

All these Acts are in one way parallel and convergent to each other as same serve under the umbrella of the 1st Defendant.

Parallel laws refer to different laws that exists side by side and apply to similar subjects or situations. They go in the same direction but are created by different bodies or serve different purposes as Customary Law and Common Statutory Law, Parallel laws may overlap and sometimes require harmony to avoid conflict.

Convergence Laws are different laws that gradually come together to align or harmonize in terms of purpose content or application. Such laws originate from different sectors but move towards a common standard, principle or goal. They are like two roads merging into one. The Acts under the 1st Defendant are examples of Convergent Laws that point together to and operate for a grand unit.

The Revenue Administration Act deals with the administration or the Act that administers all the other Acts or Divisions under the umbrella of the 1st Defendant as described by the Plaintiff.

Indeed as alleged by the Plaintiff, officials of the 1st Defendant conducted a post clearance audit of the import transaction of the Plaintiff under the Customs Act (891) and decided to elect as a tool of execution and enforce same through the Revenue Administration Act (Act 915) same act that serves the 1st Defendant.

To connect the liaison between the Act 915 and the Revenue Administration Act and the other convergent arrays of Tax Revenue Laws as stated supra, reference is made in Section 1 sub section (1) (Section 1(1)) of the Act 915, which us headed "Administration of Tax laws" and it says as follows;

"An Act to provide for the administration and collection of Revenue by the Ghana Revenue Authority and for other related matters.

These other related must he interpreted Ejusdem generics to include all other laws that converge under the grundnorm which give validity to all other revenue laws".

Clearly Section (1) of Act 915 harmonises Act 819 and does not oust it.

Again Section 1 or Act 915 states the Ghana Revenue Authority is responsible through the Commissioner General for administrating and giving EFFECT to tax laws in accordance with the provisions of the Ghana Revenue Authority Act 2007 (Act 791).

This also in effect ratifies the application of 915 with Sections under 891 and other tax laws. More specifically the second schedule to Act 915. Tax returns and Assessment captured in Paragraph l(e) and 2(1) (c) make specific references to the Customs Act 891 same is the second schedule to Act 915.

Section 97 of Act 915 clearly states that;

Thus Act shall be read as one with each of the other tax laws.

This clearly shows their interdependence.

It is evidenced and admitted by the Plaintiff in the pleading and submissions that they have notice of the said assess tax and having been assessed. However, they bemoan that the said assessment is unlawful and wrongful the assessment is Tax decision under Section 41 of915 states as follows;

"Where a Tax payer is dissatisfied with a Tax decision of the JS1 Defendant such is required to follow the Alternative Dispute Resolution (ADR) mechanisms under Act 915 as amended by Act 1029 (Sections 42-44)."

Clearly, the Plaintiff did not resort to this avenue but rather run straight to this Honourable Court with a writ. The Court being independent sat as the Defendant watched aloof the anomalies of the Plaintiff without raising any objections and allowed pleading to roll on.

But he who comes to equity must come with clean hands.

Dissatisfied with the Assessed Tax or Tax Decision, Act 915 as amended by Act 1029 under Section 44 is to come by way of Tax Appeal.

From the forgoing it is the view of the Court that the Revenue Amendment Act 2016 (Act 915) as amended applies to Customs transaction of the Customs Act 2015 (Act 891) and other Tax Revenue Laws.

The Plaintiffs Writ of Summons and Statement of Claim with its reliefs is hereby dismissed as the Plaintiff is not entitled to any of the reliefs.

(SGD)

GEORGE AIKINS AMPIAH-BONNEY (JNR.) (JUSTICE OF THE HIGH COURT)