The Supreme Court has dismissed an interlocutory injunction filed against the implementation of the Electronic Transaction Transfer Levy (E-Levy).
The Seven-member panel presided over by Justice Nene Amegatcher in a unanimous ruling said: “greater hardship” will be caused to the Ghanaian if the E-Levy is injuncted.
Parliament passed the Electronic Transfer Levy Act, 2022 (Act 1075) to impose a 1.5 per cent levy on electronic transfer.
The implementation of the levy took effect from May 1, 2022 and intended to boost the Government’s revenue mobilisation drive, broaden the tax base and provide for other related matters.
The Court said: “The balance of hardship tilt in favour of respondent” and the application is dismissed.
It, however, directed the Ghana Revenue Authority (GRA) to keep accurate transfers of proceeds received so that, after the substantive hearing, no one would be disadvantaged if the decision went in favour of the applicants.
Mr Haruna Iddrisu, the Minority Leader, his colleagues; Samuel Okudzeto Ablakwa and Mahama Ayariga, filed the application at the Supreme Court to stop the GRA on April 19, 2022, from collecting the E-levy, which started on May 1, 2022.
Mr Edudzie Tamakloe, Counsel for the Plaintiffs, moving the application said an irreparable damage would be caused to Ghanaians if the process was not halted.
He contended that, at the time of the passage of the E-Levy, only 136 Members of Parliament were present, which was below the 138 needed for the passage despite the records being corrected on March 31, 2022 to 137.
He argued that, a member who was in the premises but was not in Parliament was counted subsequently.
Mr Godfred Yeboah Dame, the Attorney-General, while opposing to the grant of the application, prayed for the application to be dismissed.
The AG said the application had no cause of action and no factual statistics had been filed in the Court regarding March 29, 2022, proceedings in Parliament.
He argued that, the Application, had no basis and should be dismissed, especially when the bill had 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.
The MPs had earlier filed a writ challenging the quorum that passed the controversial law.
And their attempt to stop its implementation has also failed.
In a motion notice for an application for interlocutory injunction filed at the Supreme Court on Tuesday, April 19, 2022, the NDC MPs wanted the Government to be restrained from commencing with the implementation of the levy until the determination of the substantive suit before the Court.
They argued 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 will 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 contended 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 GRA 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 GRA is restrained, irreparable harm will 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 will not be in the position to reimburse all the moneys paid by the millions of citizens of Ghana and all other persons.”
They said that would 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 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 to unnecessary expenses in litigation and also a nuclear meltdown in the administration of justice.
“That the Government 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.”
