The Supreme Court has dismissed an interlocutory injunction filed by three minority MPs seeking to halt the implementation of the electronic transfer levy (E-Levy).
In a unanimous decision Wednesday (May 4, 2022), a seven-member panel of the apex court held that irreparable damage will be caused to the public if the implementation of the E-Levy is put on hold and the substantive case challenging its constitutionality fails.
According to the court, in the event the substantive suit succeeds, the Ghana Revenue Authority (GRA ) had the means to refund the E-Levy already paid back to the public.
However, it said if the E-Levy is put on hold and the substantive case fails, it would cause irreparable damage to the government as it cannot collect the money already lost.
“Greater hardships will be caused to the state in meeting its developmental obligation to the people, the court held.
However, the court ordered the GRA to keep records of the levy collected so far so that in the event the substantive case succeeds , it could refund the money back to the public.
The seven -panel was presided over by Justice Nene Amegatcher, with Justices Prof Ashie Kotey, Mariama Owusu, Avril Lovelace Johnson , Getrude Torkornoo, Prof Henrietta Mensa -Bonsu and Yonny Kulendi.
Injunction
The injunction application was filed by three National Democratic Congress (NDC) MPs led by the Minority Leader, Haruna Iddrisu.
The other MPs are Mahama Ayariga, MP for Bawku -Central and Smauel Okudzeto Ablakwa – MP for North Tongu.
The three NDC MPs, who argue that there were 136 or “137 purported” MPs present during the passage of the E-Levy, instead of the required quorum of 138, want the apex court to put the E-Levy on hold until the determination of their suit challenging its constitutionality.
According to them, the GRA would not be able to reimburse the millions who would have already paid the E-Levy, while the 1992 Constitution, the supreme law of the land, would have been undermined.
Arguments
Counsel for the three MPs, Godwin Tamakloe, had a torrid time trying to convince the seven-member panel to grant the injunction.
In over an hour of submissions , counsel argued that the E-levy was passed in an unconstitutional manner because at the time it was passed Parliament did not have the required quorum of 138 MPs.
According to him, all the 136 minority MPs walked out before the E-Levy was passed.
The issue of the number of MPs present in Parliament during the passage of the E-Levy elicited barrage of questions from the Justices.
According to the judges, there was no evidence before the court that 136 NDC Minority MPs walked out of parliament before the E-Levy was passed.
Rather, the judges said that per the evidence before them which had been filed by the parties, 266 MPs were present in Parliament on the day the E-Levy was passed.
The judges therefore wondered how Mr Tamakloe expected them to know the number of Minority MPs that walked out when there was no evidence before them to that effect.
In his submission, the Attorney -General , Godfred Yeboah Dame, urged the court to dismissed the injunction application.
He argued that the number presented by the applicants as the MPs present during the passage of the E-Levy was factually inaccurate.
The A-G argued further argued that the injunction had no basis because in the event the substantive case fails, the government could not be remedied for the lost revenue.
However, he said if injunction is not granted and the substantive case succeeds, the court could order the GRA to refund the money already paid.
