OSEI HWERE v. COMMISSIONER OF INCOME TAX [1963] 2 GLR 327

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 4TH SEPTEMBER, 1963

BEFORE: PREMPEH J.

CASE REFERRED TO

Lemm v. Mitchell [1912] A.C. 400; 106 L.T. 359; 28 T.L.R. 282, P.C.

NATURE OF PROCEEDINGS

APPEAL against assessment of income tax. The facts are fully set out in the ruling of the court.

COUNSEL

A. C. Kuma, for the appellant.

Quarshie Sam, (with him Heward-Mills) for the respondent.

JUDGMENT OF PREMPEH J.

On the 23rd December, 1961, the appellant filed in this court notice of appeal against the income tax assessment of his business for three years, namely, 1952-53, 1953-54 and 1955-56. On the 4th January, 1962, the respondent filed a reply to the grounds of appeal contained in the notice of appeal. Then quite unnecessarily counsel filed summons for directions on behalf of the appellant, but that was very properly struck out on the 19th February, 1962. Thereafter no notice for the hearing of the appeal was served on the parties, and on the 1st April, 1963, a writ of fi. fa. was issued at the instance of the respondent to attach the appellant’s property, and upon hearing of this, the appellant filed a motion on the 23rd July, 1963, for an order for stay of execution.

When this motion came up for hearing, counsel for the respondent raised a preliminary point of law as to the jurisdiction of this court to hear the appeal and I therefore stayed the hearing of the motion and decided to hear the appeal itself on the 19th of August, 1963.

Upon the appeal coming up for hearing on the 29th August, 1963, counsel for the respondent referred to sections 1 (1) and 2 of the Income Tax (Amendment) Act, 1962,1 which came into force on the 1st March,

[p.329] of [1963] 2 GLR 327

1962, and submitted as a preliminary objection that by virtue of that Act, the amount on the assessment had already become a debt which should operate as a judgment of the court, and that therefore this court cannot have jurisdiction to entertain and decide on the merit of the appeal, or alternatively that since the assessment has by this Act become a statutory debt, there is nothing for this court to adjudicate upon. [His lordship here read the provisions of sections 1 (1) and 2 of the Income Tax (Amendment) Act, 1962, as set out in the headnote and continued:] By the sweeping force of this new Act,2 there can be no question at all that if an appeal had not already been lodged before its coming into force the appellant would have been caught by its provisions and thereby deprived of any right of hearing. But can the sections be interpreted to apply with equal force where an appeal had already been lodged against the assessment?

In this regard it seems to me that one should have recourse to the Interpretation Act, 1960.3 Section 8 (1)

(c) and (e) of the said Interpretation Act read as follows:

“8. (1) The repeal or revocation of an enactment shall not—. . .

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder; or…

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the enactment had not been repealed or revoked.”

On this question of rights acquired by statute I quote the following passage from Craies on Statute Law (6th ed.), pp. 413-14:

“If a right has once been acquired by virtue of some statute, it will not be taken away by the repeal of the statute under which it was acquired. `The law itself,’ says Puffendorf, in his Law of Nature and Nations, Bk. 1, c. 6, s. 6, `may be disannulled by the author, but the right acquired by virtue of that law whilst in force must still remain; for together with a law to take away all its precedent effects would be a high piece of injustice.’”

It has been conceded by the respondent that before the coming into force of the new Act,4 the appellant had acquired a right of appeal under the old Ordinance5 which has been amended, and since the new Act does not state in express terms that the provisions thereof shall apply also to cases in which legal proceedings (such as an appeal against assessment) have already been instituted, then it would seem that in accordance with section 8 of the Interpretation Act already referred to, such rights and privileges must be considered to have been saved and preserved.

[p.330] of [1963] 2 GLR 327

The case of Lemm v. Mitchell6 is in point. In that case the right acquired under the repealed Ordinance was a court judgment, and in my view, by analogy, the principle is the same.

I have carefully considered the purport and effect of section 2 of the Income Tax (Amendment) Act, 1962,7 but in my judgment, that does not take away the right already acquired.

What it can mean appears to me to be clearly stated in section 9 (c) of the Interpretation Act, 19608 which reads as follows:

“9. Where an enactment is repealed or revoked and another enactment is substituted, by way of amendment, revision or consolidation—. . .

(c) all proceedings taken under the repealed or revoked enactment shall be prosecuted and continued under and in conformity with the substituted enactment, so far as consistently may be.”

It will be seen that both section 8 and 9 of the said Interpretation Act provide that proceedings already instituted pursuant to an acquired right under a repealed or amended Ordinance can always be continued and prosecuted, and it is my view that an appeal lodged against an income tax assessment is one class of such legal proceedings.

It follows therefore and I do so hold that the appeal is properly before the court, and that this court has jurisdiction to hear it on the merit.

DECISION

Preliminary objection overruled.

Appeal to proceed.

K. T.