Post loses judicial review appeal – Judgement

 

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT LUSAKA

(Civil  Jurisdiction)

 

BETWEEN:

 

POST NEWSPAPERS LIMITED – APPELLANT

 

AND

 

ZAMBIA REVENUE AUTHORITY – RESPONDENT

 

Coram:  Kaoma, Musonda and Chinyama, JJS

On 12th July, 2016 and 28th September, 2016

 

For the Appellant:

Mr. N. Nchito S.C., of Messrs Nchito and  Nchito

 

For the Respondent:

Mrs. O.B. Goramota, Legal Counsel for  Zambia Revenue Authority, appearing with Ms. N. Kantumoya­ Katongo and G. Mwamba, In-House Counsel

 

JUDGMENT

MUSONDA, JS, delivered the Judgment of the Court.

 

Cases referred   to:

  1. The Attorney General vs. Kang’ombe (1973) Z.R. 114.
  2. Council for Civil Services Unions and  Others  vs.  Minister for Civil Service (1985) A.C. 374.
  3. Nkhata and Others vs. The Attorney General (1966) Z .R. 124.
  4. Chief Constable of North Wales Police vs. Evans (1982) 3 All ER 141.
  5. Fredrick Jacob Titus Chiluba vs. the Attorney General (2005) Z.R. 153.
  6. Nyampala Safaris (Z)  Limited  &  Others  vs. Zambia  Wildlife Authority

& Others 12003) Z.R. 118.

  1. Attorney General vs. Marcus Kampumba Achiume (1983) Z.R. 1.
  2. Zambia Revenue Authority vs. Dorothy Mwanza & Others (2010) Z.R. Vol. 1 181.
  3. Simwanza Namposhya            vs.           Zambia   State       I nsurance              Corporation

Limited (2010) Z.R. Vol. 2 39.

  1. Zambia Consolidated Copper Mines Investment Holdings Plc. vs.

Woodgate Holdings Limited (2011) Z.R. Vol.  3 110.

  1. Commonwealth Development Corporation vs. Central  African Power

Corporation (1968) Z.R. 70.

  1. Buchman vs. Attorney General (1993-1994) Z.R. 131.
  2. Mususu Kalenga Building Limited and Another vs. Richman’s Money

Lenders Enterprises (1999) Z.R. 27.

  1. Zambia Revenue Authority vs. Barclays Bank Zambia SCZ/ 15/ 2015.
  2. Zambia Revenue Authority vs. Post Newspapers Limited: Appeal No. 36 of 2016
  3. Sonny Mulenga vs. Investrust Merchant Bank Limited [1999] ZR 101

 

Legislation referred to:

  1. Zambia Revenue Authority Act, Chapter 321 of the Laws of Zambia.
  2. Income Tax Act, Chapter 323 of the Laws of Zambia.
  3. Value Added Tax Act, Chapter 331of the Laws of Zambia.
  4. The Tax Appeals Tribunal Act No. l of 2015.

Works referred to:

  1. Lord Woolf and Professor J. Jowell, Q.C, de Smith, Woolf & Jowell’s Judicial Review of Administrative Action, 5th edition, ( 1995)
  2. Halsbury’s Laws of England, (4th edition, Re-issue),

 

This is an appeal from a judgment of the High Court of Zambia dated 30th October, 2015 in terms of which the learned High Court Judge refused to grant an application by the Appellant (then Applicant) for judicial review and the Appellant’s related search for the prerogative remedies of certiorari and mandamus.

The facts, circumstances and background surrounding this Appeal are scarcely in dispute and can briefly be recounted.

On 9th September, 2014, Zambia Revenue Authority (the Respondent in this appeal, acting by its Commissioner, Domestic Taxes, wrote to the Appellant’s Deputy Managing Director advising that the Appellant’s Deputy Managing Director advising that the Appellant had accumulated “further’ tax liabilities amounting to K26.856,230.9l , inclusive of penalties and interest, and invited the Appellant’s representatives to a meeting which was set for l1th September, 20 l 4, to discuss “…the settlement of (the tax) liabilities” in question .In this judgment, we shall, for convenience, alternately refer to the Appellant and the Respondent as “the Post and “ZRA” respectively.

According to the Post’s letter on the record relating to the proceedings in the Court below (“the Record”) which had been addressed to The Commissioner-Domestic Taxes, and which was dated 18th September, 2014, the meeting which ZRA had proposed in its letter to the Post of 9th September, 2014 did take place on 11th September,  2014 at  the  former’s offices.

It appears quite evident from a reading of the two letters referred to above (and the issue was not disputed below) that when the meeting of 11th September, 2014 took place, the ZRA Commissioner-Domestic Taxes or the ZRA team invited the Post’s representatives to avail it, that is, ZRA, with their company’s proposal for the settlement of the tax l inabilities referred to above.

A week after the said 11th September, 2014 meeting, the Post’s General Manager in            charge    of            Finance  wrote      the said         18th September, 20 l4 letter to the Respondent’s Commissioner Domestic Taxes, “…proposing to pay the principal  amount in 6 equal monthly  instalments of  ZMW 2,000,000.00 payable at the end of each month effective 30th September, 2014 and the balance of ZMW 1, 758,180.20  in  the 7th month on the 30th March, 2014 (The reference to ‘2014’ would appear r o have been an error: the year should read ‘2015’) ..”. The letter we111 on to say:  “We will then make payments towards the penalty charges in 4 equal monthly instalments of ZMN 1,957,635.05 effective 30th April, 2015 and finally pay the interest of ZMN 929,231.63 on the 31st August, 2015…” On                19th  September,  2014,  the  Commissioner-General   of  ZRA  wrote to Mr. Fred M’membe, the Managing Director of the Post, by way of responding to the Post’s proposed tax settlement plan as highlighted above. In his letter, the ZRA Commissioner-General advised the Post’s Managing Director that, as of 19th September, 2014 the Post owed a total of K22,517,952.04 in unremitted PAY AS YOU EARN (PAYE), Valued Added tax (VAT) and the consequential interest and penalties. The Commissioner-General’s letter then went on the state the following:

“As you are aware, in about October, 2011, we approved your

Appeal for a waiver of penalties and interest after you successfully paid the principal taxes in instalments. Our expectation was that you would be a complaint tax payer. However, you accumulated another tax ability of K4,013,205.06 which resulted in us entering into a Time to Pay Agreement (TPA). Whilst the TPA is in place, you have neglected to remain current with your tax obligations and accumulated yet another tax ability…”.

The Commissioner-General accordingly advised the Post’ Chief Executive officer that ZRA could not “….once more. Exercise (its) discretion and allow (the Post) to settle (its) tax obligations in instalments…” and, consequently, demanded immediate payment of the Post’s “…total tax liability of K22,517,952.04”.

The judgment of the Court bel ow suggests (and the issue appears not to have been disputed by  either  party  to  this appeal) that subsequent to the events outlined above, a meeting between the Post representatives and the ZRA Commissioner-General took place on 22na September, 20 14 at which the Post presented an improved proposal for the liquidation of its tax liabilities. However, the ZRA Commissioner-General rejected the  Post’s  fresh  proposal and went on to indicate to the company ‘s representatives that ZRA would proceed with taking adverse measures against the Post which would involve seizure of its assets if the company failed to act positively on its (i.e, ZRA’s) demand for full and immediate settlement of i ts tax liability.

Having failed to secure a favourable response from ZRA, the Post decided to resort  to  Court  intervention.  Accordingly.  on 23rd September, 2014, the company sought and was gran ted leave  to apply  for judicial  review  ru1d  promptly  filed  the  application  on   the same  day.  By   the   said   application,   the   Post  sought  the  following substantive  relief or  reliefs, namely:

(a)An order of certiorari to remove  into the High Court of Zambia, for the purpose of quashing the same, the decisions of the Commissioner General of the Zambia  Revenue  Authority whereby he refused to allow the Post’s proposal to, settle its tax liability in instalments;

{b) An order of mandamus to compel the Respondent to allow the Post to settle its tax obligations in instalments.

For the removal of any doubt, following the granting of leave in favour of the Post to apply for judicial review, the decisions of the ZRA  Commissioner-General as set out above were  stayed  pursuant

to Order 53 Rule 3 of the White Book which governs judicial review proceedings.

According to the proceedings in the Court below, the grounds upon which  the Post had  premised its application for judicial review were procedural impropriety  and irrationality.

With   regard,   firstly,   to   the  ground   alleging  procedural  impropriety, the Post contended that, as the Commissioner-Domestic Taxes, was under a duty to attend to its proposal to settle its   tax   liabilities   in     instalments, the decision by the ZRA Commissioner-General to get involved and to deal with the matter himself in the manner he did was procedurally improper as it took away or neglected the procedural right which was available or open to the Post not only to appeal to the Commissioner-General against the decision of the Commissioner-Domestic Taxes, but to be heard in respect thereof.

As        regards   the          ground   alleging  irrationality,          the

Post contended that ZRA’s refusal to allow it to settle its tax obligations in instalments was irrational and unreasonable in the Wednesbury sense especially that, between the period September, 2011 and September, 2014, the company had paid a total sum of K45,858,624.07 to ZRA in various forms of taxes (PAYE, VAT, corporation tax and import duty). The company further argued that ZRA’s demand to have it settle the K26,856,230.91 tax liability “immediately” and in a single instalment was tantamount to demanding to have the Post Square the circle, so to speak, or to achieve what was impossible for the company to achieve, even in the light of the fact that its failure to oblige exposed the company to the risk of having its assets seized and its operations totally crippled.

The Post further argued that having its assets seized and its operations halted would hardly help the Government of the  Republic of Zambia in that the country’s tax basket will diminish and the jobs of innocent and hard-working citizens lost. Having regard to the foregoing, the Post accordingly invited the Court below to find ZRA guilty of having acted irrationally and unreasonably in the Wednesbury sense by refusing to accept its proposal to resolve its tax liability in instalments.

For its part, ZRA vehemently opposed the Post’s search for judicial review and the remedies which the company was seeking through such coercive judicial intervention. In so doing, ZRA argued

that the Authority’s enabling statute designates the ZRA Commissioner-General as the Chief Executive Officer of ZRA, with power to delegate any of his functions to his subordinates who include the Commissioner-Domestic Taxes.

The Revenue Authority further con tended that the Co111missioner-General, as the “…person responsible for carrying out the  provisions of  (the Zambia Revenue

Authority)  Act”,  CAP  321,  remained  entitled  to  undertake  any  or

whatever function or functions he chooses to delegate  as  he  had clone  in  the  context  of  the  matter  at  hand  in  relation  to  the ZRA

Commissioner-Domestic   Taxes    and    that,    therefore,    there was absolutely nothing which was procedurally improper in what the ZRA Commissioner-General did when he responded to the tax payment proposal which has arisen from the Post and which has been addressed to the ZRA Commissioner-Domestic Taxes.

With regard to the Post’s argument alleging irrationality on the part of ZRA, the Revenue Authority contended that there was also absolutely nothing irrational about its Commissioner-General’s refusal to allow the Post to discharge its tax liabilities in instalments as it had proposed.

In a fairly detailed opposing Affidavit to the Post’s application, ZRA traced the genesis of the Post’s tax liabilities pointing out that the Company’s tax woes had their roots in its failure to remit taxes which the company had either deducted from its employees’ salaries by way of Pay As You Earn (PAYE) or collected from its clients (Valued Added Tax or VAT) on behalf of ZRA.  It was ZRA’s further contention that, aside from the unremitted PAYE and VAT, the Post’s tax liability had been compounded by its failure to pay Company Tax and that the cumulative effect of its failure to be tax compliant has been to push the company’s tax liability to the level which the Appellant was perceiving to be high, particularly when regard is had to the application of interest and penalties.

 

…Continues Tomorrow

Categorized | Court News

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