M & C LOGISTICS AND TRADING LIMITED VRS. IDDRISU VENTURES AND ANOTHER (CM/BDC/0823/2021) [2025] GHAHC 37 (10 February 2025)

IN THE SUPERIOR COURT OF JUDICATURE. IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION-3 HELD IN ACCRA ON MONDAY THE 10TH DAY OF FEBRUARY, 2025 BEFORE HER LADYSHIP JUSTICE DORIS AWUAH DABANKA- BEKOE (MRS.) ================================================================= SUIT NO.:CM/BDC/0823/2021 M & C LOGISTICS AND TRADING LIMITED … APPLICANT PLOT NO: 259 EAST LEGON OPPOSITE LIZZY SPORTS COMPLEX NO. 1 CARROT AVENUE VERSUS IDDRISU VENTURES … 1ST DEFENDANT IDDRISU ADAMS … 2ND DEFENDANT ALL OF ACCRA =============================================================================== =============================================================================== JUDGMENT ================================================================================ By its writ of summons filed on 29th July, 2021, the Plaintiff claimed against the Defendants as follows: Page 1 of 27 a) An order directed at the Defendants to deduct and pay the 3% withholding taxes from the full payment that Plaintiff has made to the Defendants on the bars of gold to Ghana Revenue Authority as agreed on. b) An order directed at Defendants to furnish Plaintiff with records of the withholding tax certificates covering the said transaction to enable the Plaintiff produce same to Ghana Revenue Authority. c) Damages for breach of contract. The Plaintiff is a Company registered under the laws of Ghana and licensed by all the relevant statutory bodies in Ghana to deal in the conducting of assay, storage, transport, purchase, export and import of gold. 1st Defendant is licensed by the relevant authorities and statutory bodies in Ghana to buy and sell bars of gold and all other precious minerals and at all times material a supplier of gold to Plaintiff at various dates and times. 2nd Defendant is the Chief Executive Officer of 1st Defendant and at all times material the controlling mind of 1st Defendant who represented 1st Defendant in the various business transactions that Plaintiff engaged in with Defendants. Plaintiff states that from the 10th October 2017 through the 28th March 2018, it at different dates and at different prices purchased various quantities of bars of gold from 1st Defendant who was represented by 2nd Defendant as its Chief Executive Officer in the said transactions. Page 2 of 27 Plaintiff says that as a term of the agreement which was executed between Plaintiff and Defendants, Plaintiff made various payments of money which included withholding taxes for the quantities of gold Defendants supplied it at different dates and at different prices by wire transfer into bank account number 0111064003516 which stands in the name of 1st Defendant at United Bank of Africa at the Heritage Tower Branch in Accra and also physical cash. Plaintiff states that being business partners engaged in the same gold industry and judging from the level of camaraderie and several business transactions which Plaintiff and Defendants have engaged in over the years, it was a further term of the agreement between the parties that instead of the Plaintiff deducting the three(3%)percent withholding tax from all the money it paid on each purchase of bars of gold from 1st Defendant in accordance with Section 85(2) of the Income Tax Act, 2015(Act 896) 2nd Defendant on behalf of 1st Defendant pleaded with Plaintiff not to make the said statutory deduction but rather allow Defendants to make it and pay same to the Ghana Revenue Authority in order to improve and boost 1st Defendant’s tax profile and to furnish Plaintiff with a copy of the withholding tax certificate for Plaintiff’s record and Plaintiff acceded to this arrangement. Plaintiff avers that based on the arrangement referenced, Plaintiff made payments of money for the various quantities of bars of gold Defendants supplied it without deducting the said withholding taxes legitimately expecting that Defendants will deduct same and make the said payment to the Ghana Revenue Authority in consonance with the term of the agreement. Plaintiff further states that induced by the said representation by Defendants, it was made to make several purchases of bars of gold from 1st Defendant and made full payments of money for bars of gold to 1st Defendant withholding deducting the said Page 3 of 27 percentage required by law and 2nd Defendant represented to Plaintiff that he has made the said deductions and has subsequently made payment to the Ghana Revenue Authority and he is awaiting the issuance of the withholding tax certificate from the Ghana Revenue Authority. Plaintiff again states that it was gob smacked when it received a letter dated 14th November 2021 from the Ghana Revenue Authority which was the tax audit report on Plaintiff from 2016 to 2018 years of assessment by which Plaintiff’s alleged tax liability stood at a whooping sum of Seven Hundred and Seventy Thousand, Eight Hundred and Twelve Ghana Cedis and Thirty-One Pesewas (GH₵ 770, 812.31) out of which an amount of Sixty-Eight Thousand, Nine and Seventy-Three Ghana Cedis (GH₵ 68,973.00) has been paid leaving a colossal sum of Seven Hundred and One Thousand, Eight Hundred and Thirty-Nine Ghana Cedis and Thirty-One Pesewas (GH₵ 701, 839.31)as Plaintiff’s tax liability which was outstanding and attracting interest. Plaintiff states that per a letter dated 13th December 2021, it objected and denied owing the Ghana Revenue Authority the said amount and further that it made full payment of the products inclusive of the withholding tax to Defendants before taking possession of same and these records were not available in Plaintiff‘s record and Plaintiff subsequently communicated the contents of the Ghana Revenue Authority’s letter to Defendants for their reaction to same. Plaintiff states that, its Managing Director engaged 2nd Defendant via WhatsApp messaging requesting him to furnish Plaintiff with the said withholding tax certificates if indeed Defendants have paid the three percent (3%) withholding tax on all the purchases that Plaintiff made to Defendants so that Plaintiff can submit them Page 4 of 27 to the Ghana Revenue Authority to vindicate Plaintiff’s position that it does not owe the said amount of money. Plaintiff states that it made available to the Ghana Revenue Authority all records on the said transaction in that Plaintiff purchased the bars of gold from one particular source that is from the Defendants and that the Ghana Revenue Authority can contact the Defendants to verify this assertion but the Ghana Revenue Authority failed so to do and again by a letter dated 1st February 2021, the Ghana Revenue Authority demanded that Plaintiff should pay the said sum of Seven Hundred Thousand and One Thousand Eight Hundred and Thirty –Nine Ghana Cedis and Thirty-One Pesewas (GHC 701, 839.31) within seven(7) days. Plaintiff states that it again objected to the contents of the letter, and by a letter dated 3rd February 2021 in which Plaintiff further stated that the said amount of money was to be paid by the Defendants and that the Ghana Revenue Authority should make the said demand on the Defendants but for reasons best known to themselves the Ghana Revenue Authority has refused so to do. Plaintiff states that the Ghana Revenue Authority continued to make the said demand for the payment of the said sum of money from Plaintiff by two letters on the 29th June 2021 and 21st July 2021 respectively addressed to Plaintiff on the same subject matter to which Plaintiff also objected to by its letters dated 2nd and 26th July 2021 addressed to the Ghana Revenue Authority and Plaintiff has continued to inform the Defendants of stance of the Ghana Revenue Authority and Plaintiff further requested Defendants to furnish Plaintiff with the said records. Plaintiff averred that Defendants without any lawful and or legal justification whatsoever flatly refused to furnish Plaintiff with the said withholding tax Page 5 of 27 certificates evidencing the fact that Plaintiff has made full payment for all the products from Defendants and as such does not owe the Ghana Revenue Authority the said amount in order to bring closure to this matter and all legitimate efforts to compel Defendants to comply has fallen on deaf ears and the 2nd Defendant has stated via WhatsApp messages that he will not produce the said withholding tax certificates if any to Plaintiff but the Ghana Revenue Authority wants the said documents they should contact him directly. Plaintiff contends that it communicated 2nd Defendant’s response to the Ghana Revenue Authority by printing out the WhatsApp chat and furnishing the Ghana Revenue Authority with same but Ghana Revenue Authority failed to bulge and the Ghana Revenue Authority was requesting the payment of the alleged outstanding withholding tax from Plaintiff within seven (7) days failure so to do, will compel the Ghana Revenue Authority to come and locked up the offices of Plaintiff. The Plaintiff contends that the recalcitrance and belligerence of 2nd Defendant is occasioning irreparable damage on the corporate image and operations of Plaintiff. Defendants have refused to adhere to its own solemn obligation in its own undertaking and have neglected so to do and have since evinced the intention of not paying the said amount to the Ghana Revenue Authority and to furnish Plaintiff with same unless compelled by this Honourable Court Wherefore, the Plaintiff claim against the Defendants as follows: a) An order directed at the Defendants to deduct and pay the 3% withholding taxes from the full payment that Plaintiff has made to the Defendants on the bars of gold to Ghana Revenue Authority as agreed on. Page 6 of 27 b) An order directed at Defendants furnish Plaintiff with records of the withholding tax certificates covering the said transaction to enable the Plaintiff produce same to Ghana Revenue Authority. c) Damages for breach of contract. d) Cost including legal fees e) Such other or further relief as the court may seem just. The Defendants entered appearance on 10th March, 2021 and filed their statement of defence on 10th March, 2021. Defendants denied each and every allegation of facts contained in the Plaintiffs statement of claim as if same were set out in extensor and denied seriatim. Defendants admit Paragraphs 1, 2 & 3. Defendants admit Paragraph 4 and say that the Plaintiff was not buying Gold from the Defendants. Defendants deny paragraph 5 and say that Defendants had been in the business of buying and selling of gold over the years and that the Plaintiff only paid for the invoices supplied to him without any tax whatsoever. Defendants deny paragraph 6 and say that the Defendants did not need anyone’s tax credit. Defendants deny paragraphs 7 & 8 and say that GRA as a creditable institution knows very well that Defendants are not and cannot be liable because the Defendants had not exported any gold to be paying 3% Withholding Tax. Page 7 of 27 Defendants deny Paragraphs 9 & 10 and say that upon GRA investigating and examining the documents of the Defendants, GRA came to the firm conclusion that the Defendants are not liable in any way for the unpaid taxes of the Plaintiff. In answer to Paragraph 11,12,13 & 14 Defendants say that the GRA had already examined the tax obligations of the Defendants and did not find anything wrong with it hence GRA’s repeated demand notice to Plaintiff. Defendants deny paragraphs 15,16 & 17 and say that Defendants are not liable for the default of taxes by the Plaintiff. Defendants deny paragraph 18 in its entirety and say that Plaintiff is not entitled to any of the reliefs endorsed. WHEREFORE Defendants say that Plaintiff’s action is misconceived and frivolous and therefore must be dismissed with punitive cost. The Plaintiff’s reply to the Defendant defence is as follow; Plaintiff joins issues generally with the Defendants. In response to the Statement of Defence, Plaintiff states its difficulties in comprehending the averments contained therein. Plaintiff repeats all the averments in its Statement of Claim by way of reply to Defendants’ Statement of Defence and states rather strongly that Defendants have come to this Honourable Court with a concocted story and a clear afterthoughts. In reply to Paragraph 4 of the Statement of Defence, Plaintiff repeats paragraphs 1 to 6 of its Statement of Claim and again states that it purchased several bars of gold from Defendants at various period of time and paid directly into 1st Defendant’s bank account and the said payment is inclusive of the withholding tax. Page 8 of 27 In further reply to paragraph 4 of the Statement of Defence, Plaintiff says that the said averment contained in the said paragraph 4 of Defendants’ Statement of Defence stands in total contradiction with Defendants’ own paragraph 3 and Plaintiff also states that Defendants requested that Plaintiff paid the entire amount of money for the bars of gold it purchased from 1st Defendant without withholding the three percent (3%) withholding tax with the understanding that Defendants will pay the said withholding tax directly to the Ghana Revenue Authority in order to boost the tax profile of 1st Defendant. In reply to paragraph 5 of the Statement of Defence, Plaintiff deny the said averment since it is fraudulent and reckless because Defendants were fully aware of the terms and conditions that Defendants represented to Plaintiff Company that they were doing to make the said statutory deduction and pay same to the Ghana Revenue Authority and them furnish Plaintiff with the said tax certificate. In further reply to paragraphs 6 & 7 of the Statement of Defendant, Plaintiff repeats paragraphs 4,5,6,7 & 8 of its Statement of Claim. In reply to paragraphs 8 & 9 of the Statement of Defence, Plaintiff denies the said averment and Plaintiff repeats paragraphs 4,5,6,7,8,9,10,11,12,13,14 15 & 16 of its Statement of Claim and shall state again that the said banal assertions contained therein are cocktail of concoctions and conjectures which are cleverly woven to throw dust into the eyes of the uninitiated as such a thing never happened.. In specific reply to paragraph 9 of the Statement of Defence, Plaintiff denies the said averment and states that Defendants have not honoured their obligations to the Plaintiff and the Ghana Revenue Authority. Page 9 of 27 Plaintiff denies paragraph 10 of the Statement of Defence and states that Defendants are liable to pay the said three percent (3%) withholding tax from the amount of money Defendants received from Plaintiff for the purchase of the bars of gold it sold to Plaintiff and Plaintiff repeats paragraphs 4 to18 of its Statement of Claim. Plaintiff denies paragraph 11 of the Statement of Defence and Plaintiff says that it is entitled to its claim. At the close of the pleadings the issues set down for trial were as follows; a) Whether or not the various payments for the bars of gold by Plaintiff to Defendants included the 3% withholding tax which Defendants are to pay to Ghana Revenue Authority. b) Whether or not the parties agreed that the Defendants will deduct the statutory 3% withholding tax from payments made by Plaintiff and pay same to the GRA and furnish the Plaintiff with the tax certificates. c) Whether or not Defendants are liable to pay the 3% withholding tax to the Ghana Revenue Authority on behalf of Plaintiff. The principle of law of evidence in civil cases is that the burden of persuasion or proving all facts essential to any claim lies on whoever is making the claim. Section 10 (1) of the Evidence Act 1975 (NRCD 323) defines the burden of persuasion as 10 (1) “for the purpose of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of a tribunal of fact or court”. Page 10 of 27 Section 11(1) of the Act defines the burden of producing evidence as the obligation on a party to introduce sufficient evidence to avoid a ruling on the issue against that party. Section 12 (1) reads “Except as otherwise provided by law, the burden of persuasion requires proof by preponderance of probabilities. (2) Preponderance of probabilities means that degree of certainty of belief in the mind of tribunal of fact or the court by which it is convinced that the existence of fact is more probable than its non-existence”. In view of the above definition, the standard of proof required in all civil cases is proof by preponderance of probabilities. 1. The Plaintiff representative Witness in the person of Michael Bartlett Vanderpuye, gave evidence during the trial. The witness statement of the representative filed on 30th October, 2023 was adopted on 28th October, 2024 by the Court as his evidence-in- chief. The evidence is a repetition of the Plaintiff’s statement of claim with few additions and exhibits. Exhibit “A” are (copies of the certificates and licenses) Exhibit “B” are (copies of the invoices issued by 1st Defendant Company to Plaintiff), Exhibit “C” are (copies of the statement showing the said deposit into the account of 1st Defendant Company). Exhibit “D” is (a copy of letter) Exhibit “E” are (copies of the WhatsApp communications) Exhibit “F series” is (a copy of letter) Exhibit “G” are (copies of said letters), Exhibit “H” are (copies of the said letters). The additions in the witness evidence to the statement of claim are; That based on Defendants’ representation to Plaintiff that it is also licensed to sell bars of gold to prospective licensed gold buyers in Ghana and abroad, Plaintiff entered into an agreement with 1st Defendant Company for the sale of gold bars. The Plaintiff Company and 1st Defendant Company being business entities involved in the same gold industry, it was a hollowed and a seasoned practice in the gold industry and Page 11 of 27 also a further term of the agreement Plaintiff had with 1st Defendant Company that instead of Plaintiff Company subtracting the statutory three percent (3%) withholding taxes from all the money it paid on each purchase of bars of gold from 1st Defendant Company in accordance with Section 85(2) of the Income Tax Act, 2015 as amended, 2nd Defendant on behalf of 1st Defendant Company pleaded with Plaintiff Company not to do so. And requested that Plaintiff should rather make the entire payment to 1st Defendant Company including the said withholding tax of three percent (3%) so that 1st Defendant Company will deduct the said three percent (3%) withholding tax and make payment of same to the Ghana Revenue Authority in order to improve and boost 1st Defendant’s tax profile and that 1st Defendant Company will furnish Plaintiff with a copy of the said withholding certificate after making the payment to Ghana Revenue Authority and Plaintiff allowed 1st Defendant Company so to do. Based on the arrangement between Plaintiff and 1st Defendant Company, Plaintiff legitimately made payments for all the various bars of gold it purchased from 1st Defendant Company, knowing that 1st Defendant Company will make the said statutory tax payments to Ghana Revenue Authority and share the said certificate with Plaintiff in accordance with their arrangement Plaintiff states that it is never true that the payment Plaintiff made to 1st Defendant Company does not include the three percent (3%) withholding taxes and that all the payments included the amount for the withholding tax which Defendants promised to pay to the Ghana Revenue Authority and to share the certificates with Plaintiff. And further Defendants are liable to pay the said withholding tax from all the purchases Plaintiff made and are to share the said withholding tax certificates with Plaintiff for Plaintiff to use same to offset its tax obligations to Ghana Revenue Page 12 of 27 Authority. During cross examination the excerpts of questions and answers in respect of the agreement and as to who was to pay tax were as follows; Q: Take a look at paragraph 10 of your Witness Statement, the first sentence. It states that “right after this agreement Plaintiff was surprised when he received a letter dated 14th November, 2019 from the Ghana Revenue Authority which was the Tax Audit Report from 2016 to 2018 years of assessment”. Which agreement were you referring to? A: I was referring to the agreement between your client and myself. Q: Have you made a copy of the said agreement available to this Court? A: It was a verbal agreement. Q: Take a look at the Plaintiff’s Exhibit H, second page, the last paragraph of the said letter which is from GRA to M & C logistics dated July 21st, 2021. In the said letter GRA clearly stated that per their Act it is M & C logistics, i.e. the Plaintiff which bears the obligation of withholding the tax and not the 1st Defendant, Iddrisu Ventures, is that not so? A: When you look at the reference of the letter Counsel is referring to, the letter quoted one part of the Act and based on that the conclusion was made. The same Act 896, Section 117(5) also gives the Defendants to pay the withholding tax or the Plaintiff to pay the withholding tax to GRA and demand same from the Defendants in the Court of law. Page 13 of 27 The Defendants representative Witness in the person of Iddrisu Adams gave evidence during the trial. The witness statement of the representative filed on 25th October 2023 was adopted on 29th October 2024 by the Court as his evidence-in-chief. The evidence is a repetition of the Defendant’s statement of defence with few additions and an Exhibit which is Exhibit ID1 (A copy of such invoices). The additions in the witness statement to the statement of defence are; The Plaintiff paid for gold supplied based on invoices raised by the 1st Defendant through wire transfer to the Bank accounts of the Defendant. The invoices state the date, quantity of gold, unit price and the amount of each transaction. A copy of such invoices has been attached as Exhibit ID 1. During cross examination of Defendants witness, the following are the excerpts of the questions and answers between Plaintiff Counsel and the witness; Q: Please can you confirm to this Court if the 1st Defendant is a registered withholding tax agent of GRA as required by law? A: No, my lady, however, I paid my tax as required by law. It is those who do the shipment that obliged to pay a withholding tax. Q: You would agree with me, would you not that Exhibit D, F, G and H are all making reference to the 3% withholding tax that the Plaintiff agreed with you that you would pay to GRA, you would agree with me? A: That is not correct. As I mentioned earlier on, Plaintiff did not make arrangement in terms of money to pay for the withholding tax. Page 14 of 27 Q: Can you tell the Court if the Plaintiff did not agree with you that he would pay the withholding tax from the gold he purchased from you, why would he showed you all these exhibits, requesting you to furnish it with the withholding tax certificate? A: My lady I would not be in a position to answer this question because I did not agree with them to pay for the withholding tax. Q: I am putting it to you that all the various sums of money that the Plaintiff paid the 1st Defendant for the gold included the 3% withholding tax which 1st Defendant was to pay to GRA? A: That is not correct. My lady, all my invoice I tendered to the Court indicated exactly the quantity of kilo the Plaintiff purchased from the 1st Defendant. If we had agreed on the payments of withholding taxes same would have been indicated on the invoiced, I issued. That was why GRA freed me. Per the letters issued by GRA, nowhere did GRA indicates that 1st Defendant was to pay for the withholding tax. GRA was aware that was the duty of the purchaser to pay the withholding tax. Counsel for Plaintiff by its written address submitted that Section 85(2) of the Income Tax Act 2015, Act 896 clearly states inter alia that “a resident person shall withhold tax at the rate provided for in paragraph 8 of the First Schedule when the person pays for unprocessed precious minerals in the country or won from the country”. That the law enjoins the Plaintiff who purchased the gold and therefore should have withheld the tax before effecting the payment the law places obligation of withholding tax on the purchaser, however, the Plaintiff and 1st Defendant per the Act are also a withholding tax agent and are also enjoined to pay the said tax on the purchase which Plaintiff made to it during the period of the transaction if Plaintiff failed so to do but the Defendants have also failed so to do violating the Act. Also, the same Income Tax 2015, Act 896 provides in Section 117 (5) Page 15 of 27 that “A withholding agent (Plaintiff who fails to withhold tax under the Act but pavs the tax that should have been withheld to the Commissioner - General in accordance with subsection (1) is entitled to recover an equal amount from the withholdee” (Defendants). It is the case of Counsel that the witness stated that the Defendants represented to the Plaintiff that they will subtract the said withholding tax from the full purchase amount that Plaintiff made to 1st Defendant Company and Defendants promised to subtract the 3% from the amount and pay same which Defendants have failed and Plaintiff was compelled to make the said payment to Ghana Revenue Authority and it is also making the said refund from Defendants pursuant to Section 117(5) Income Tax 2015, Act 896. It is further submitted that not having cross-examined on the contents of the above assertion by Plaintiff and the attached Exhibits “E, F series, G & H”, and not putting forward or canvassing any evidence to rebut the evidence, the Defendants cannot contradict the said evidence. Counsel’s case is that in RE FIANKO AKOTUAH (DECD); FIANKO V DJAN (2007/2008) SC GLR 165, it was held, based on the provisions of Sections 25 and 26 of the Evidence Act, 1975 (ACT 323), that in a situation such as the present case, the Defendant is estopped from denying the contends recited in Exhibit “E”. They cannot approbate and reprobate. The Defendants are therefore estopped from denying the said document. The above evidence of the Plaintiff accords with his pleadings that unlike 1st Defendant, Plaintiff's evidence has been consistent and sustainable on this issue that it agreed and paid the entire amount of money to 1st Defendant which included the withholding tax which Defendants failed to pay the said 3% payment withholding tax to Ghana Revenue Authority as agreed upon and Exhibits “B, C, D, E, F, G & H” clearly vindicates this position. Counsel submitted that as the record and the pleadings will show, the Plaintiff clearly paid the entire money for the bars of gold 1st Defendant sold to it inclusive of the 3% withholding tax which Defendants failed to pay to the GRA and for which Plaintiff was surcharged with Page 16 of 27 and has since paid it and demanding refund from the Defendants as stipulated in Section 117(5) of Income Tax Act 2015, Act 896.This piece of evidence is in tandem with the explanation Plaintiff's testimony. Furthermore, the Defendant could not produce any evidence against the Plaintiff's evidence of that the entire purchase price did not include the 3% withholding tax as alleged and Exhibits B,C,D, E,F,G , & H attached to Plaintiff's Witness Statement clearly indicate that the purchase price included the payment of 3% withholding which Defendants failed to pay to the GRA as agreed among the parties that Plaintiff should not withhold the 3% withholding tax as required of it by law but rather allow Defendants to pay same and share the certificates with Plaintiff which is also permissible under the law. It is trite learning that when a party has made an assertion in evidence-in-chief, and he is not cross-examined on that issue it shall be deemed to be an admission of the matters stated therein. See the case of GHANA PORTS AND HORBOURS AUTHORITY VRS NOVA COMPLEX (2007/08) SC GLR 806, where it was held that, where evidence led by a party is not challenged by his opponent in cross-examination and the opponent does not tender evidence to the contrary the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial Court. It is submitted that the Defendants not having cross-examined on the contents of the above assertion by Plaintiff and the attached exhibits “B,C,D,E,F, G, & H “and not putting forward or canvassing any evidence to rebut the evidence, the Defendants cannot contradict the said evidence. 1st Defendant's witness further discredited himself when he mounted the witness box on 5th November, 2024, in sharp contradiction with 1st Defendant's own exhibits and Statement of Defence as captured at pages 2-5 of the record of proceedings. ON ISSUE 3 Page 17 of 27 (c) Whether or not the Defendants are liable to pay 3% withholding tax to Ghana Revenue Authority on behalf of Plaintiff. Counsel’s case is that Section 85(2) of Income Tax Act 2015, Act 896 states that “Subject to (3), a resident person shall withhold tax at a rate provided for in paragraph 8 of First Schedule when the person pays for unprocessed precious minerals located in the country or won in the country.” The interpretation section of the Income Tax Act, 2015, Act 896 specifically Section 133 (1) defines a “withholdee” to mean “a person receiving or entitled to receive payment from which tax is required to be withheld under division II of part VIII”: (emphasis ours). Also, the same section defines a “withholding agent” to mean “a person required to withhold tax from payment under Division II of Part III'. It again defines a “person” as “individual or entity”. Therefore, the Plaintiff, 1st and 2nd Defendants all qualify as a person and a juristic persons and are qualified per the Act to collect withholding tax as specified in the Act for any goods and or services rendered for which payment is made in this case the purchase of gold as indicated. Counsel submission is that, when the Defendant refused to pay the said 3% withholding tax, Plaintiff was surcharged with same and Plaintiff paid the full amount to GRA and per Section 117(5) which states that “where a withholding agent who fails to withhold tax under this Division but pays the tax that should have been withheld to the Commissioner-General an equal amount from the withholdee” Since Plaintiff has already paid the amount which it was supposed to withhold from the purchase made to Defendants to the GRA and it failed so to do, Plaintiff was entitled to a refund. That the Plaintiff's case is more probable than the Defendants is supported by the decision in FOSUA & ADU POKU VR ADU-POKU MENSAH [2009) SC GLR 311, where in holding 1, the apex Court held as follows: “it was settled law that documentary evidence should prevail over oral evidence”. Page 18 of 27 Furthermore, the fact that the Plaintiff's case has been proven by documentary evidence in the nature of Exhibits A, B, C, D, F, G & H that Defendant owes Plaintiff the said amount of money cannot be over emphasized. ON ISSUE 4 Whether or the Defendant Company is liable to the Plaintiff in respect of any outstanding in the alleged gold supply to the Plaintiff. It is submitted that Plaintiff has evidentially proven that Defendants were liable to it for the withholding tax which Defendants failed to pay to the Ghana Revenue Authority for which Plaintiff was surcharged with pursuant to Section 85(2) of the Act and Plaintiff having paid same, Plaintiff is entitled by Section 117 of the same Act to demand a refund from the Defendants. Counsel for Defendants by its address to the court submitted on the following issues; i. Whether or not the various payments for bars of gold by Plaintiff to Defendants included the 3% withholding tax which Defendants are to pay to Ghana Revenue Authority. ii. Whether or not the parties agreed that the Defendants will deduct the statutory 3% withholding tax from payments made by Plaintiff and pay same to the GRA and furnish the Plaintiff with the tax clearance certificate. iii. Whether or not Defendants are liable to pay 3% withholding tax to Ghana Revenue Authority on behalf of Plaintiff. Page 19 of 27 ON ISSUE i Whether or not the various payments for bars of gold by Plaintiff to Defendants included the 3% withholding tax which Defendants are to pay to Ghana Revenue Authority. Counsel for the Defendants submits that it is the Defendants case that the invoices issued based on which payments were made did not indicate a withholding tax. This was confirmed by the Plaintiff’s witness under cross-examination which is captured in the record of proceedings at pages 2 and 3 dated 28th day of October 2024 as follows: Q: Take a look at your Exhibit B which is a sample of the invoices sent by the Defendants. A: Correct Q: There is no reference to withholding tax on the said exhibit, is that correct? A: It is correct. It is the case of Counsel that the income Tax Act, 2015 (Act 896) places the obligation on withholding and paying withholding tax to the Ghana Revenue Authority squarely on the Plaintiff. ON ISSUE ii Whether or not the parties agreed that the Defendants will deduct the statutory 3% withholding tax from payments made by Plaintiff and pay same to the GRA and furnish the Plaintiff with the tax clearance certificate. It is submitted that, it is the Defendant’s case that there was never such an agreement as there was no way such an agreement was going to boost the tax profile of the Defendants. Page 20 of 27 ON ISSUE iii Whether or not Defendants are liable to pay 3% withholding tax to Ghana Revenue Authority on behalf of Plaintiff. It is the case of Defendants Counsel that Section 85(2) of the Income Tax Act, 2015 (Act 896) states that subject to subsection (3), a resident person shall withhold tax at the rate provided for in paragraph 8 of the First Schedule when the person pays for unprocessed precious minerals located in the country or won from the country. That in the Plaintiff’s Exhibit H which is a letter from GRA to the Plaintiff dated 21/07/2021, the GRA stated clearly that per the Income Tax Act, it is the Plaintiff which bears the obligation of withholding the tax and paying same and not the Defendants. Counsel concluded that the law places the obligation of withholding the tax squarely on the Plaintiff. It is obvious that there was no agreement to shift that obligation on to the Defendants in order to boost their tax profile as this is not practically possible. The Plaintiff’s case has no merit and as such the Plaintiff is not entitled to any of the reliefs it seeks. I have studied the pleadings, evidence and submissions of counsel for the parties and have observed the following; 1. The Plaintiff by its writ is praying to the Court for the reliefs endorsed on the writ on grounds that; a. Being a business entity who deals among other things, purchases and export of gold. b. It has in years engaged in gold business with the Defendants who also as licensed dealers in gold sold at different times gold bars to the Plaintiff. Page 21 of 27 c. As part of their transaction, it was agreed between the Plaintiff and the Defendants being represented by the 2nd Defendant that, with all purchases of gold bars by the Plaintiff, the Plaintiff should pay all the amount indicated on the invoices without the deduction of the withholding tax of 3% mandated by law as the Defendants will take it upon themselves to make such payments. After which the tax certificate obtained from GRA, the Defendants will make same available to the Plaintiff. d. The transaction between the Plaintiff and the Defendants in respect of the gold bars was between 2017 and 2018. 2. The Plaintiff’s case is that it had received series of letters from GRA in 2021 demanding payment of the withholding tax on its gold business transaction. a. According to the Plaintiff it directed GRA to contact the Defendants for the withholding tax as a result of the arrangement that took place between the parties but GRA has been adamant but rather kept on demanding payment of the 3% withholding tax on the purchases of gold from the Defendants. b. According to the Plaintiff the persistent demand by GRA made it contact the Defendants with the GRA letters and requested the Defendants to send it the tax certificate if payments had been made as agreed to enable it submit same to GRA. Page 22 of 27 c. That in spite of the letters from GRA shown to the Defendants and other lawful means used to compel the Defendants to submit the withholding tax certificate to the Plaintiff for onwards submission to GRA, the Defendants have not responded to same hence this suit against the Defendants for the reliefs endorsed thereon. 3. The Defendants by their response do not dispute the fact that, they have been in gold business with the Plaintiff for years but deny any arrangement between the parties that Plaintiff would pay the amount /price of the quantity of gold supplied to it. And the Defendants will pay 3% withholding tax, collect the certificate and submit same to the Plaintiff. a. According to the 2nd Defendant whenever the Plaintiff made a demand for gold the Defendant would issue invoice indicating, the quantity, price per unit e.t.c but no indication of a withholding tax on the invoice. b. That the Plaintiff would pay the amount on the invoice into the Defendant’s bank accounts. c. That the office of GRA invited the Defendants to its office and after examining their backs informed the Defendants that it was the responsibility of the Plaintiff to pay the withholding tax of 3% and not the Defendants. d. It is the case of the Defendants that the Income tax Act 2015(Act 896) specifically Section 85(2) places the responsibility on the Plaintiff to pay the withholding tax to GRA and collect the certificate. Page 23 of 27 I have analyzed the evidence and the records before me. The invoices that the Defendants were giving out to the Plaintiff did not have a component of withholding tax of 3% on it. Plaintiff’s witness confirmed this during cross examination. It has also been noted that, Plaintiff is asserting that there was an arrangement for the Plaintiff to pay the full cost of the gold to the Defendants whilst the latter pays the withholding tax. The Court is of the view that, Plaintiff’s assertion is not supported by any evidence. The law is that he who asserts must prove same by evidence. The question is per the income tax law, who carries the responsibility to pay the withholding income tax of 3%. Is it the vendor or the purchaser? Section 85(2) of Act 896 reads “subject to subsection (3) a resident person shall withhold tax at the rate provided for in paragraph 8 of the first schedule when the person pays for unprocessed precious minerals located in the country’. This section does not apply to (a) a payment made by an individual unless the payment is made in the course of conducting a business. The next question is who is a withholding agent. A withholding agent per the interpretation of the Act means “a person required to withhold tax from payment under division II of Part VIII and year of assessment’. The Court is of the opinion that from Section 85(2) of the Act, the person who is to withhold tax is the one who pays for unprocessed precious minerals located in the country or won from the country. The exemption in subsection (3) does not include payment made in the course of conducting a business. Again, from the Act, the person who withholds tax is the withholding Agent. Page 24 of 27 From the above sections of the law, the Plaintiff who was purchasing gold from the Defendants, that is doing business with the Defendants was expected to withhold tax required by the law (withholding Agent). Therefore, if he was to pay GH¢10,000.00 for a certain quantity of gold, he was supposed by law to withhold a certain percentage of the above sum of money from the vendor. He was not to pay GH¢10,000.00 to the vendor but take the percentage as required by law and pay same to GRA and thereafter collects the tax certificate. Another question is what does withholdee means per the Act. It means “a person receiving or entitled to receive a payment from which tax is required to be withheld under Division II of Port VIII. Again Section 117(5) of Act the reads “ A withholding Agent who fails to withhold tax under this Division but pays the tax that should have been withheld to the Commissioner- General in accordance with subsection(1) is entitled to receive an equal amount from the withholdee. The above implies that if the Plaintiff who did not withhold the tax, pays it to the Commissioner General, it is entitled to recover the amount paid to GRA from the Defendants. The Plaintiff alleges that upon series of demand from GRA which demands were forwarded to the Defendants to submit the tax certificate to it evidencing payment but on failure by the Defendants to respond positively, the Plaintiff had gone to pay the amount of withholding tax for the period 2016 to 2018 plus interest and the penalty to GRA. Therefore, the Defendants must refund same. The Court perfectly agrees with the Plaintiff per Section 117(5) of the Act that the Defendants would have to refund the amount paid by the Plaintiff to GRA if really Plaintiff made such payments. Page 25 of 27 a. Therefore, the Court needs evidence received from GRA that Plaintiff has paid taxes withheld. b. Plaintiff must show evidence that GRA has credited the Defendants (supplier) with taxes withheld. c. The evidence should either be a tax credit certificate or proof that the Defendants(supplier) tax payment accounts in GRA portal has been credited. If all the above evidence are provided and proved positive the amount recoverable from the Defendants by the Plaintiff is the unpaid withholding tax within that period minus any penalty or interest which GRA has added. From the records before the court, there is no documentary evidence of same. And as rightly stated in the case of FOSUA & ADU POKU VS ADU-POKU MENSAH (2009) SCGLR, where the Supreme Court held as follows: “it was settled Law that documentary evidence should prevail over oral evidence”. Another question is what about the arrangement alleged to have taken place between the parties for the defendants to pay the withholding tax? The Court is of the view that the Plaintiff could not proof any such arrangement. On the other hand, assuming there was such an arrangement, will it have been a legal arrangement. The answer is NO. Consequently, the Plaintiff has not been able to proof its case by preponderance of probability and it is hereby dismissed. To answer the issues set down for trial. 1. The answer to the 1st issue is, there is no evidence to proof same. Page 26 of 27 2. The answer to the 2nd issue is the same as the 1st issue. 3. The answer to the 3rd issue is that the Defendants are not liable to pay 3% withholding tax to GRA. Cost of GH¢5,000.00 in favor of Defendants against the Plaintiff. (SGD) DORIS AWUAH DABANKA-BEKOE (MRS) JUSTICE OF THE HIGH COURT COUNSEL: DAVID KOKO FOR PLAINTIFF - PRESENT BERNARD SAMUEL ANANG HOLDING BRIEF FOR DR. EMMANUEL MORRIS ANKRAH FOR DEFENDANTS - PRESENT Page 27 of 27