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18 MARCH 1974



Revenue—Income tax—Provisional assessment—Jurisdiction of Income Tax Commissioner—Commissioner for Income Tax satisfied that non-resident company leviable to tax—Whether decision reviewable by certiorari—Income Tax Decree, 1966 (N.L.C.D. 78), paras. 6 (1) and 46.

Revenue—Income tax—Provisional assessment—Procedure to challenge—Party assessed proceeding by prerogative writ—Whether court entitled to consider whether finding of fact by Commissioner for Income Tax supported by evidence—N.L.C.D. 78, para. 49.

State proceedings—Certiorari—Income tax—Commissioner for Income Tax making provisional assessment—Whether acting in a quasi-judicial or administrative capacity.


The respondents were a non-resident company that operated in Takoradi. On 15 October 1969 the Commissioner for Income Tax raised the assessment on the respondents for the years 1959 to 1970 inclusive. The respondents then sought leave in the High Court to apply to quash the assessment on the ground that they were not liable to tax at all. Although leave was granted, the application was dismissed.  On appeal to the Court of Appeal, it was held that certiorari would lie to quash the assessment because the finding that the respondents were carrying on a business or trade in Ghana was not supported by the evidence. On an application to the full bench of the Court of Appeal for a review, the two issues raised were: (1) whether if paragraph 46 of the Income Tax Decree, 1966, gave the commissioner the right to raise the assessment, that right ceased to exist if the respondents were not carrying on a trade or business within the meaning of paragraphs 5 (a) and 6 (1); and (2) if not, on what ground would the court interfere?

Held, allowing the application for review:

(1) on a proper construction of paragraphs 46 and 6 (1) of N.L.C.D. 78, the commissioner had jurisdiction to make a provisional assessment upon anybody whom he was satisfied was leviable to tax, and this could include a person erroneously believed to be chargeable.  Whether the respondents carried on a trade in Ghana was a question of fact which was conclusive and could not be reviewed by either prohibition or certiorari.  Dictum of Lord Esher M.R. in R. v. Income Tax Special Purposes Commissioners (1888) 21 Q.13.D. 313 at pp. 319-320, C.A. applied.

(2) The Court of Appeal fell into grave error when they quashed the determination of the commissioner on the ground that there was no evidence to support his finding.  Once the assessment had been made, the proper procedure for the respondents to challenge it was by raising an objection under paragraph 49.  Since they had not availed themselves of that paragraph, the commissioner was not required to make a further express [p.284] finding. It was only if this stage had been reached that the Court of Appeal would have been entitled to consider whether the finding of fact was not supported by the evidence or made on a view of the facts which could not reasonably have been entertained.  R. v. Commissioners of Taxes for St.  Giles and St. George, Bloomsbury; Ex parte Hooper [1915] 3 K.B. 768, D.C. applied.

(3) The Court of Appeal correctly stated that certiorari always would lie against a person who had to act judicially but not against purely administrative acts. When the commissioner made the provisional assessment he was only acting in an administrative capacity, and his role would only have been transformed into that of an adjudicator, required to act judicially, if the respondents had raised an objection.

Judgment of the Court of Appeal reported sub nom.  Republic v. Commissioner of Income Tax; Ex parte Maatschappij de Fijnhouthandel N. V. (Fynhout) [1971] 1 G.L.R. 213, reviewed and set aside; judgment of Coussey J., unreported; digested in (1970) C.C. 28, restored.


(1) R. v. Nat Bell Liquors, Ltd. [1922] 2 A.C. 128; 91 L.J.P.C. 146; 127 L.T. 437; 38 T.L.R. 541; 27 Cox C.C. 253, P.C.

(2) R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171; 93 L.J.K.B. 390; 130 L.T. 164; 88 J.P. 13; 39 T.L.R. 715; 68 S.J. 188; 21 L.G.R. 719, C.A.

(3) R. v. St. Lawrence’s Hospital, Caterham, Statutory Visitors; Ex parte Pritchard  [1953] 1 W.L.R. 1158; [1953] 2 All E.R. 766; 117 J.P. 458; 97 S.J. 590, D.C.

(4) R. v. Income Tax Special Purposes Commissioners (1888) 21 Q.B.D. 313; 53 J.P. 84; 36 W.R. 776; sub nom.  R. v. Income Tax Special Purposes Commissioners; Ex  parte Cape Cooper Mining Co., Ltd. 2 T.C. 332; 57 L.J.Q.B. 513; 59 L.T. 455; 4 T.L.R. 636, C.A:

(5) Erichsen v. Last (1881) 8 Q.B.D. 414; 4 T.C. 422; 51 L.J.Q.B. 86; 45 L.T. 703; 46   J.P. 357; 30 W.R. 301, C.A.

(6) Allen v. Sharp (1848) 2 Exch. 352; 3 New Mag.Cas. 39; 17 L.J.Ex. 209; 11 L.T. (o.s) 155; 12 J.P. 693; 154 E.R. 529.

(7) R. v. Commissioners of Taxes for St. Giles and St. George, Bloomsbury; Ex parte Hooper [1915] 3 K.B. 768; 7 T.C. 59; 85 L.J.K.B. 129; 113 L.T. 1015; 31 T.L.R. 565, D.C.

(8)  R. v. Clerkenwell General Commissioners of Taxes [1901] 2 K.B. 879; 85 L.T. 503; 65 J.P. 724; 17 T.L.R. 744; sub nom.  R. v. Income Tax Commissioners 70 L.J.K.B. 1010; sub nom.  Kodak, Ltd. v. Clark (Surveyor of Taxes) 4 T.C. 549, C.A.

(9) R. v. Bolton (1841) 1 Q.B. 66; Arn. & H. 261; 4 Per. & Dav. 679; 10 L.J.M.C. 49; 5 J.P. 370; 5 Jur. 1154.

(10) Edwards (Inspector of Taxes) v. Bairstow and Harrison [1956] A.C. 14; [1955] 3 W.L.R. 410; [1955] 3 All E.R. 48; 36 T.C. 207; 99 S.J. 588; [1955] T.R. 209; 48 R. & I.T. 534; 34 A.T.C. 198, H.L.


(11) Griffiths v. J. P. Harrison (Watford), Ltd. [1963] A.C. 1; [1962] 2 W.L.R. 909; 106 S.J. 281; [1962] 1 All E.R. 909; [1962] T.R. 33; 41 A.T.C. 36; 40 T.C. 281, H.L.

(12) R. v. City of London Income Tax Commissioners; Ex parte Inland Revenue Commissioners (1904) 91 L. T. 94, D.C.

(13) Re Calvert [1899] 2 Q.B. 145; 4 T.C. 79; 68 L.J.Q.B. 761; 80 L.T. 504; 47 W. R. 523; 43 S.J. 480; 6 Mans. 256.

(14) Re Moschi (1953) 35 T.C. 92; [1954] T.R. 59.

(15) Inland Revenue Commissioners v. Lysaght [1928] A.C. 234; 13 T.C. 526; 97 L.J.K.B. 385; 139 L.T. 6; 44 T.L.R. 374; 72 S.J. 270, H.L.

(16) Errington v. Minister of Health [1935] 1 K.B. 249; 104 L.J.K.B. 49; 152 L.T. 54; 99 J.P. 15; 51 T.L.R. 44; 78 S.J. 754; 32 L.G.R. 481, C.A.

(17) Frost v. Minister of Health [1935] 1 K.B. 286; 104 L.J.K.B. 218; 51 T. L. R. 171.

(18) Robinson v. Minister of Town and Country Planning [1947] K.B. 702; [1947] 1 All E.R. 851; [1947] L.J.R. 1285; 177 L.T. 375; 111 J.P. 378; 63 T.L.R. 374; 91 S.J.294; 45 L.G.R. 497, C.A.

(19) Johnson (B.) & Co. (Builders), Ltd. v. Minister of Health [1947] 2 All E.R. 395; [1948] L.J.R. 155; 177 L.T. 455; 111 J.P. 508; 45 L.G.R. 617, C.A.

(20) Franklin v. Minister of Town and Country Planning [1948] A.C. 87; [1947] 2 All E.R. 289; [1947] L.J.R. 1440; 111 J.P. 497; 63 T.L.R. 446; 45 L.G.R. 581, H.L.

(21) R. v. Central Professional Committee for Opticians; Ex parte Brown [1949] 2 All E.R. 519; 65 T.L.R. 599; 93 S.J. 647, D.C.

(22) R. v. Metropolitan Police Commissioner; Ex parte Parker [1953] 1 W.L.R. 1150; [1953] 1 All E.R. 717; 117 J.P. 440; 97 S.J. 590, D.C.


APPLICATION for review by the full bench of the Court of Appeal of a decision of the Court of Appeal, reported [1971] 1 G.L.R. 213, in which an application for certiorari to remove and quash the provisional assessment made by the Commissioner of Income Tax against the respondents was granted on an appeal from the dismissal of the same application by Coussey J. on 2 December 1969, unreported; digested in (1970) C.C. 28.  The facts are sufficiently stated in the judgment of Azu Crabbe C.J.


J.W.  Blankson-Mills for the applicant (Commissioner of Income Tax).

E. A. K. Akuoko for the respondents.


This is an application for a full bench review of a joint judgment of the Court of Appeal (coram Apaloo, Sowah and Archer JJ.A.) dated 7 December 1970, reported [1971] 1 G.L.R. 213 allowing an appeal by the respondents from a ruling of the High Court, Accra (Coussey J.) dated 2 December 1969, unreported; digested in (1970) C.C. 28, whereby [p.286] an application for an order of certiorari to remove and quash the provisional assessment to income tax made on the respondents by the applicant (Commissioner of Income Tax) was dismissed.

The respondents are no doubt a foreign company that operate at Takoradi.  On 15 October 1969, the commissioner addressed to the respondents a letter which read as follows:

“15th October, 1969.

The Resident Manager,

Fynhout N.V.,

P.O. Box 109,


Dear Sir,

Income Tax Assessment

I have raised assessments on the company for the years of assessment 1959-60 to 1969-70, both years inclusive, and if you object to the assessments you should pay not less than fifty per centum of the total tax charged pending the determination of your objection.

Yours faithfully,

for: Commissioner of Income Tax.”

The respondents’ immediate reaction to this letter was the filing in the High Court, Accra, on 30 October 1969, of an application praying for leave to apply for an order of certiorari to remove to that court and “quash income tax assessments made on Fynhout together with an order made by the Commissioner of Income Tax for payment of fifty per centum of the amount assessed.” The grounds upon which this application was based were stated as follows:

“(1) The said assessments and order for payment have been made even before the liability of the company to tax under the Income Tax Decree which the company has contested, has been determined by the competent authority.

(2) The Commissioner of Income Tax has made the said assessments without due consideration of representations made to him on behalf of the applicants that they are not liable to tax as aforesaid.

(3) The order to pay on the assessment is oppressive.”

And the detailed facts in support of the application were set out in an accompanying affidavit sworn to by the respondents’ representative at Takoradi, Mr. Paul John Van Aken.  In the penultimate paragraph of the affidavit it is stated:

“That I am advised and verily believe that both the assessment and, especially the demand are ultra vires the Commissioner of Income Tax. And further that the order for payment is oppressive and constitutes a gross misuse by the commissioners of his powers under [p.287] the Income Tax Decree in so far as it seeks to compel the company to pay tax in the sum of N¢61,750.00 even before the liability or otherwise of the company to tax in Ghana, which is the subject of controversy between the commissioner and the company, has been determined under the law by the competent authority.”

The application for leave was, on 4 November 1969, granted by Coussey J. and, subsequently on 2 December 1969, the learned judge, upon hearing argument, dismissed the application.  The respondents’ appeal to the Court of Appeal was upheld (see [1971] 1 G.L.R. 213) and Archer J.A. who read the judgment of the court, concluded as follows at p. 227:

“In conclusion, we hold that:

(1) The Commissioner has jurisdiction to determine whether or not a person or company is chargeable with income tax.

(2) Although the Income Tax Decree, 1966, makes provision for appeals against assessment, yet the machinery for appeals is co-existent with the machinery provided by the Constitution for the supervision by the superior courts over all adjudicating authorities through the use of the prerogative writs or orders.

(3) In the present appeal, certiorari will lie because the finding that the company is carrying on business or trade in Ghana is not supported by evidence and certiorari therefore lies to quash the assessments made by the commissioner.”

Since this is a case of certiorari I think I can appropriately preface my judgment with the quotation of the well-known dictum of Lord Sumner in R. v. Nat Bell Liquors Ltd. [1922] 2 A. C. 128, P. C., when the learned Lord was speaking about the supervisory powers of superior courts over interior courts.  He said at p. 156:

“Its jurisdiction is to see that the inferior Court has not exceeded its own, and for that very reason it is bound not to interfere in what has been done within that jurisdiction, for in so doing it would itself, in turn, transgress the limits within which its own jurisdiction of supervision, not of review, is confined. That supervision goes to two points: one is the area of the inferior jurisdiction and the qualifications and conditions of its exercise; the other is the observance of the law in the course of its exercise.”

Defining the circumstances in which the writ of certiorari would issue to quash the decision of public bodies, Atkin L.J., said in the oft-quoted passage of his judgment in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920), Ltd. [1924] 1 K.B. 171 at pp. 204-205, C.A.:

“The question now arises whether the persons interested are entitled to the remedy which they now claim in order to put stop to the unauthorised proceedings of the Commissioners.  The matter comes before us upon rules for writs of prohibition and certiorari which have been discharged by the Divisional Court.  Both writs are [p.288] of great antiquity, forming part of the process by which the King’s courts restrained courts of inferior jurisdiction from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction; certiorari requires the record or the order of the court to be sent up to the King’s Bench Division, to have its legality inquired into, and, if necessary, to have the order quashed.  It is to be noted that both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice.  But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

What then does the expression “the duty to act judicially” mean?  In R. v. St. Lawrence’s Hospital, Caterham, Statutory Visitors; Ex parte Pritchard [1953] 1 W.L.R. 1158, D.C. Lord Goddard C.J. said at p, 1162:

“It is not easy to give a definition of exactly what is meant by ‘act judicially’, but, in my opinion, for this purpose the expression refers to a body which is bound to hear evidence from both sides.  Although there need not be anything strictly called a lis, it must be a body which has to hear submissions and evidence and come to a judicial decision in approximately the way that a court must do.  Unless there is an order or a determination which the body has made, the order of certiorari will not lie.”

The jurisdiction of the commissioner to raise an assessment is conferred by paragraph 46 of the Income Tax Decree, 1966 (N.L.C.D. 78), which provides:

“46. (1) (a) As soon as may be after the commencement of each year of assessment, the Commissioner may proceed to make a provisional assessment, computed to the best of his judgment, on every person chargeable with tax.

(b) A provisional assessment shall not affect any liability otherwise incurred by such person by reason of his failure or neglect to deliver a return.

(2) Where a person has delivered a return, the Commissioner may—

(a) accept the return and make an assessment accordingly; or

(b) refuse to accept the return, and to the best of his judgment, determine the amount of the chargeable income of the person and make an assessment accordingly.”


That jurisdiction is further enlarged in paragraph 47 as follows:

“47. Subject to the provisions of the proviso to paragraph 53 of this Decree, if the Commissioner discovers or is of the opinion at any time that any person liable to tax has not been assessed or has been assessed at a lesser amount than that which ought to have been charged, the Commissioner may and as often as may be necessary, assess such person at such amount or additional amount, as according to his judgment ought to have been charged, and the provisions of this Decree as to notice of assessment, appeal and other proceedings under this Decree shall apply to such assessment or additional assessment and to the tax charged thereunder.”

(The emphasis is mine.)

Paragraph 49 prescribes the method by which an assessment can be challenged, and the manner in which a dispute is to be resolved.  The material provisions of paragraph 49 are, in my view, contained in the following sub-paragraphs:

“(2) If any person disputes the assessment made upon him he may apply to the Commissioner, by notice of objection in writing, to review and to revise the assessment.  Such application shall state precisely the grounds of his objection to the assessment and shall be made within thirty days after the date of the service of the notice of assessment . . .

(3) On receipt of the notice of objection referred to in sub-paragraph (2) of this paragraph, the Commissioner may require the person giving the notice of objection to furnish such particulars as the Commissioner may deem necessary with respect to the income of the person assessed and to produce all books or other documents in his custody or under his control relating to such income, and may summon any person who, he thinks, is able to give evidence respecting the assessment to attend before him and may examine such person on oath or otherwise.”

Paragraph 51 makes provisions for an appeal from the decision of the commissioner, and for the purposes of the present case the relevant provision is sub-paragraph (2) of paragraph 51 (as amended by N.L.C.D. 406, para. 19 and Sched. II) which reads as follows:

“Where any person is dissatisfied with a decision made by the Commissioner on an objection to him under paragraph 49, such person may, within fifteen days after the date of such decision, appeal, where the amount of tax chargeable on the disputed portion of the income exceeds four hundred and eighty cedis, to the High Court; and such person or the Commissioner may appeal from the decision of such Court to the Court of Appeal.”

Paragraph 53 also makes provisions as to the finality and conclusiveness of the commissioner’s assessment.  It reads:


“53.  Where no valid objection or appeal has been lodged within the time limited by paragraph 49 or paragraph 51 of this Decree, as the case may be, against an assessment as regards the amount of the chargeable income assessed thereby, or where the amount of the chargeable income has been agreed to under the provisions of sub-paragraph (4) of paragraph 49 of this Decree, or where the amount of such chargeable income has been determined on objection, revision under the provisions of the proviso to sub-paragraph (4) of paragraph 49 of this Decree, or appeal, the assessment as made or agreed to or revised or determined on objection or appeal, as the case may be, shall be final and conclusive for all purposes of this Decree as regards the amount of such chargeable income and if the full amount of the tax in respect of any such final and conclusive assessment is not paid within the appropriate period or periods prescribed in this Decree the provisions of this Decree relating to the recovery of tax, and to any penalty imposed under the provisions of paragraph 62 of this Decree, shall apply to the collection and recovery thereof subject only to the set off of the amount of any tax repayable under any claim, made under any provisions of this Decree, which has been agreed to by the Commissioner or determined on any appeal against a refusal to admit any such claim:

Provided that nothing in paragraph 49 or in Part XI of this Decree shall prevent the Commissioner from making any assessment or additional assessment for any year of assessment which does not involve re-opening any issue, on the same facts, which has been determined by agreement or otherwise under the provisions of sub-paragraph (4) of paragraph 49 of this Decree or on appeal.”

In this case the judgment of the Court of Appeal concedes that the commissioner clearly had jurisdiction to make the assessment, but the court set the assessment aside, because, in its opinion, there was no evidence that the respondents were trading in Ghana. This raises two fundamental questions: (1) whether if paragraph 46 gives the commissioner the right to raise the assessments in this case, that right ceases to exist if the respondents are not carrying on trade or business within the meaning of paragraphs 5 (a) and 6 (1) of the Income Tax Decree, 1966 (N.L.C.D. 78); and (2) if not, on what ground will the court interfere?

In my judgment, the answers to these questions depend upon the proper construction of the relevant provisions of the Income Tax Decree, 1966 (N.L.C.D 78). By paragraph 1 of the Decree the Commissioner of Income Tax is made responsible for the assessment and collection of all taxes, and paragraph 46 empowers him to make a provisional assessment after the commencement of each year, “computed to the best of his judgment.” Paragraph 47 provides for the method of additional assessment in certain circumstances, and paragraph 49 gives to a person aggrieved by an assessment a right to apply to the commissioner for a review or revision of the assessment. Paragraph 53 provides that unless the commissioner’s decision is thus disputed or challenged the assessment is final and conclusive.


Paragraphs 5 (a) and 6 (1) come under Part II of the Decree and the heading of this Part is: “Imposition of Income Tax and Income Chargeable.” I think that the words “Income chargeable” are very significant, having regard to the conclusion arrived at by the Court of Appeal, Paragraph 5 (a) reads:

“5. The tax shall, subject to the provisions of this Decree, be payable at the rate or rates specified in this Decree, or in a rule or regulation made thereunder, for each year of assessment upon the income of any person accruing in, derived from, brought into, or received in, Ghana in respect of —

(a) gains or profits from any trade, business, profession or vocation, for whatever period of time such trade, business, profession or vocation may have been carried on or exercised . . .”

Paragraph 6 (1) also reads:

“6. (1) Where a non-resident person carries on any trade, business, profession or vocation in Ghana, part of the operations of which may be carried on outside Ghana, the full gains or profits of that trade, business, profession or vocation shall be deemed to be derived from Ghana:

Provided that —

(a) a person shall not be deemed to be carrying on a trade, business, profession or vocation in Ghana by reason of the mere supplying of goods or services to Ghana if his activities are carried on entirely outside Ghana;

(b) in the case of a company operating in Ghana which is a branch or subsidiary or associated company of a non-resident company, the profits for the period deemed to arise in connection with the operations of that company shall be computed by reference to the total consolidated profits of the whole group (including both the resident and non-resident companies) taking into account the proportion which the turnover of that company bears to the total consolidated turnover of the group;

(c) the Commissioner may, where he is satisfied with the results of a company operating in Ghana of the description specified in the preceding clause for any period, compute the profits of such company without reference to the total consolidated profits of the whole of the group; and

(d) the Commissioner may take into account other relevant considerations in determining the proportion of the total consolidated profits of the group which should be attributed to the company operating in Ghana.”


Although paragraph 5 (a) describes the income that is liable to tax, paragraph 46 directs that the provisional assessment should be made upon any person “chargeable with tax.” This assessment is computed to “the best … judgment” of the commissioner, that is to say, the commissioner has the power to make an assessment of anybody, who in his opinion or whom he is satisfied, is leviable to tax.

In my judgment this case falls within the category of cases referred to in the dictum of Lord Esher M. R. in R. v. Income Tax Special Purposes Commissioners (1888) 21 Q.B.D. 313 at pp. 319—320, C.A.:

“When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body.  It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise.  There it is not for them conclusively to decide whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.  But there is another state of thing which may exist.  The legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more.  When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none.  In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.”

There can be no doubt that the respondents are a “non-resident company” within the meaning of paragraph 83 of the Decree, and if they were carrying on a trade in this country, then all their gains and profits would be deemed to have been derived from Ghana.  Whether a person is carrying on trade is a question of fact, and as Jessel M.R. said in Erichsen v. Last (1881) 8 Q.B.D. 414 at p. 416, C.A.:

“There is not, I think, any principle of law which lays down what carrying on trade is.  There are a multitude of things which together make up the carrying on of a trade, but I know of no one distinguishing incident, for it is a compound fact made up of a variety of things.”


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