Dr. Cassiel Ato Forson, Minister for Finance
THE LEGAL CONSEQUENCES OF AN UNQUALIFIED MEMBER ON THE INDEPENDENT TAX APPEALS BOARD (ITAB)
COMPILED WITH RICHARD AMO-HENE
Introduction
The establishment of the Independent Tax Appeals Board (ITAB) under the Revenue Administration (Amendment) Act, 2020 (Act 1029) was a laudable step towards enhancing fairness and efficiency in tax dispute resolution in Ghana. However, while much attention has been rightly focused on the operational and financial needs of the ITAB, a potential congenital flaw in its composition warrants critical legal scrutiny. This flaw, if present, could undermine the very legitimacy of its decisions.
This analysis examines the legal effect of appointing a member to the ITAB who does not meet the mandatory qualification requirements prescribed by statute. Specifically, it addresses whether the presence of a representative from the Institute of Chartered Accountants, Ghana (ICAG) or the Chartered Institute of Taxation, Ghana (CITG) who lacks the requisite ten years of practice experience renders the Board’s decisions void ab initio.
The Statutory Framework: A Matter of Mandatory Composition
The authority and legitimacy of the ITAB are derived solely from statute. Its composition is not a matter of discretion but of strict legal prescription. The Fourth Schedule of the Revenue Administration (Amendment) Act, 2020 (Act 1029), which establishes the ITAB, provides in paragraph 3(1): “3. (1) The Appeals Board shall comprise a. a chairperson of not less than ten years’ experience in tax practice who is a lawyer of not less than ten years standing at the Ghana Bar or a retired Superior Court Judge; b. two retired officers of the Ghana Revenue Authority not below the rank of Chief Revenue Officer, who qualify for appointment as tax consultants; c. two other persons with the same qualification as the chairperson in subparagraph (a); d. two representatives of the Chartered Institute of Taxation, Ghana nominated by the Institute, each of whom has not less than ten years of tax practice; e. two representatives of the Institute of Chartered Accountants, Ghana nominated by the Institute each of whom has not less than ten years of practice; and f. two representatives from the private sector who are women.”
The language is unambiguous. The ten-year practice requirement is a condition precedent for qualification. The meaning of “practice” is further clarified by the respective professional bodies’ statutes:
• The Institute of Chartered Accountants, Ghana Act, 2020 (Act 1058) defines the “practice of accountancy” to include the professional activities of a person holding out as an accountant.
• The Chartered Institute of Taxation, Ghana Act, 2016 (Act 916) stipulates that a person shall not “practise” as a chartered tax practitioner unless they are a registered member holding an unexpired certificate to practise.
These provisions establish that the ten-year period refers to professional practice post-qualification. A failure to meet this threshold means a nominee is, by law, unqualified to sit on the ITAB.
The Foundational Legal Principle: Decisions by Improperly Constituted Bodies are Void
Ghanaian jurisprudence is unequivocal on the effect of a defect in the composition of an adjudicatory body. Such a defect is not a mere procedural irregularity; it is a fundamental flaw that goes to the root of the body’s jurisdiction, rendering its proceedings and decisions a nullity.
The locus classicus on this principle is the Supreme Court decision in Mosi v. Bagyina [1963] 1 GLR 337, S.C. The court held that a judgment or order made without jurisdiction is void ab initio. A body that is not properly constituted as required by law inherently lacks the jurisdiction to act. Such a void decision has no legal effect and can be challenged at any time.
This principle has been consistently applied in numerous contexts:
1. Lack of Quorum: In Republic v. Adansi Traditional Council; Ex parte Nana Akyie II [1974] 2 GLR 126, the High Court quashed a decision of a judicial committee that sat with less than the statutorily required quorum. The court held that the committee was improperly constituted and therefore had no jurisdiction to adjudicate.
2. Wrong Body Adjudicating: In Republic v. Western Nzima Traditional Council; Ex parte Nana Kpani Ackah III [1973] 2 G.L.R. 107, the entire Traditional Council sat on a matter that the Chieftaincy Act, 1971 (Act 370) had vested exclusively in a smaller judicial committee. The court held that the council acted without jurisdiction, and its decision was a nullity.
3. Improper Composition of Superior Courts: The principle applies with equal force to the highest courts. In Republic v. High Court, Accra; Ex parte Adjei [1984–86] 2 GLR 511, SC, the Supreme Court declared its own previous decisions null and void because the panels that delivered them were not constituted in accordance with the law. Taylor JSC emphatically stated that a court not properly constituted is powerless to adjudicate.
Analysis: Applying the Principle to the ITAB
Applying these authorities to the ITAB, the conclusion is inescapable. If a member nominated by ICAG or CITG does not possess the mandatory ten years of practice experience, the ITAB is, de jure, not the body that Parliament empowered under Act 1029. Its composition is flawed, and it therefore lacks the jurisdiction to hear and determine tax appeals.
Any decision made by such a defectively constituted Board would be coram non judice (not before a judge) and consequently void ab initio. It is not a valid decision that can only be overturned on appeal; it is a legal nullity from its inception
The De Facto Officer Doctrine: A Limited Shield
It may be argued that the common law de facto officer doctrine could validate the acts of an unqualified ITAB member. This doctrine is intended to prevent administrative chaos by upholding the actions of a person acting under the colour of authority, even if their appointment is technically flawed.
However, the applicability of this doctrine in the face of a fundamental jurisdictional defect is highly questionable in Ghanaian law. The strong and consistent line of authority from Mosi v. Bagyina prioritises jurisdictional purity. Where a body’s very constitution is challenged as being contrary to a mandatory statutory requirement, the courts are unlikely to subordinate this fundamental principle to administrative convenience. The doctrine may offer protection where the defect is minor and unknown, but not where a mandatory qualification, central to the body’s legitimacy, is absent.
Challenging a Void Decision: Remedies and Procedure
An aggrieved taxpayer who discovers that an ITAB panel that decided their case included an unqualified member has strong grounds to challenge the decision. The principle that courts require strict adherence to statutory dispute resolution mechanisms, as seen in cases like Boyefio v NTHC Properties Ltd [1997-98] 1 GLR 768, works in the taxpayer’s favour. An improperly constituted ITAB is not the statutory mechanism prescribed by law.
The available remedies include:
1. Judicial Review (Certiorari): An application can be made to the High Court for an order of certiorari to quash the ITAB’s decision on the grounds that it was made without jurisdiction.
2. Declaratory Action: An action can be initiated in the High Court for a declaration that the ITAB was improperly constituted and its decision is null, void, and of no legal effect.
The objection to the member’s qualification should be raised at the earliest possible opportunity. However, given the precedent in Mosi v. Bagyina, a void order can be challenged at any time, meaning a failure to object during the ITAB proceedings (especially if the defect was unknown to the party) is not necessarily fatal to a later challenge in court. The burden of proof will, of course, rest on the party alleging the lack of qualification.
Conclusion and Recommendations
The statutory requirement of “not less than ten years of practice” for ICAG and CITG nominees to the ITAB is a mandatory condition that goes to the Board’s jurisdiction. Based on a wealth of Ghanaian case law, headlined by Mosi v. Bagyina, the presence of an unqualified member renders the ITAB improperly constituted.
Consequently, any decision made by such a Board is void ab initio and can be successfully challenged in the High Court. An aggrieved party has a clear legal basis to have such a decision quashed or declared a nullity.
This places a significant duty of care on the nominating bodies—ICAG and CITG—and on the appointing authority to conduct thorough due diligence. To safeguard the integrity of the tax dispute resolution process and avoid a floodgate of litigation that could create administrative chaos, it is imperative that all members appointed to the ITAB strictly meet the qualifications laid down in Act 1029. A reassessment of current members’ qualifications would be a prudent step to pre-empt future legal challenges.
Reference List
A. Case Law
i. Boyefio v NTHC Properties Ltd [1997-98] 1 GLR 768
ii. Mosi v. Bagyina [1963] 1 GLR 337, S.C.
iii. Republic v. Adansi Traditional Council; Ex parte Nana Akyie II [1974] 2 GLR 126
iv. Republic v. High Court, Accra; Ex parte Adjei [1984–86] 2 GLR 511, SC
v. Republic v. Western Nzima Traditional Council; Ex parte Nana Kpani Ackah III [1973] 2 G.L.R. 107
B. Statutes
i. Chartered Institute of Taxation, Ghana Act, 2016 (Act 916)
ii. Chieftaincy Act, 1971 (Act 370)
iii. Institute of Chartered Accountants, Ghana Act, 2020 (Act 1058)
iv. Revenue Administration Act (s amended) 2016, Act 915
v. Revenue Administration (Amendment) Act, 2020 (Act 1029)
