The Attorney-General (A-G), Godfred Yeboah Dame, has described an application for interlocutory injunction filed by the Minority Leader, Haruna Iddrisu, Hon. Mahama Ayariga and Hon. Samuel Okudzeto Ablakwa against the implementation of the Electronic Transfer Levy Act, 2022 (Act 1075) as incompetent.
The three senior members of the National Democratic Congress filed a writ on 30 March, 2022 asking the Supreme Court to declare the passage of the Electronic Transfer Levy Act as unconstitutional and should therefore be set aside. On 19 April, 2022, the three Members of Parliament followed up with an application for an order of interlocutory injunction to restrain the enforcement of the Act pending the determination of their suit.
However, in a strong affidavit in opposition filed in response on 29 April, 2022, the A-G makes reference to what he terms “factual uncertainties” in the plaintiffs’ application and says that same shows that their application is incompetent, and that, the plaintiffs have failed to make out a case for the Supreme Court to grant an injunction.
Supporting his point, the Attorney-General submits further, that the factual uncertainty contained in the plaintiff’s case, is displayed in their allegation that “there were only 136 or the purported 137 Members from the Majority Caucus … present in the Chamber of Parliament” when the E-Levy Act was passed.
The fact that plaintiffs are not even sure of the exact number of Members of Parliament present in Parliament for the passage of the E-Levy Bill (whether there were 136 or 137 MPs present in Parliament), is fatal to their case and demonstrates that plaintiffs have no cause of action.
The State further submits in its affidavit in opposition, that, clearly “plaintiffs have failed to demonstrate any facts, or the commission of any act or an omission on the part of Parliament in the constitutionally prescribed procedure for the passage of the Electronic Transfer Levy Act, 2022 (Act 1075) which vests them with a cause of action” in the Supreme Court.
This, in the opinion of the Attorney-General, makes the entire suit as well as the application for interlocutory injunction incompetent.
Records in Parliament
Attached to the affidavit filed on behalf of the Attorney-General is an Exhibit – the official record of the Thirty-seventh sitting of the First meeting of the Eighth Parliament held on Tuesday, 29th March, 2022 (the “Votes and Proceedings”).
The A-G submits that the Votes and Proceedings of Parliament for 29th March, 2022, clearly shows that there were two hundred and sixty-six (266) members of Parliament present in Parliament when the question whether to approve the Electronic Transfer Levy Bill was put after the second reading of the E-Levy Bill, before the Bill was passed into law.
The Exhibit further shows that the Electronic Transfer Levy Bill was consequently passed by a voice vote. The A-G in reference to this, says that this shows therefore that the allegations by plaintiffs about the number that passed the E-Levy Bill, which they are not even sure whether it was 136 or 137, is immaterial.
Quorum for decision making
The Attorney-General makes the further point that, in any event, by Tuesday, 29th March, 2022, the number constitutionally required for a decision to be made by Parliament was 137, there being only 274 validly elected Members of Parliament as the election of the Member of Parliament for Assin-North had been cancelled by the High Court, Cape Coast and an appeal by the affected Member of Parliament struck out by the Court of Appeal on 22nd March, 2022.
To buttress this contention, the Attorney-General attached another Exhibit – a decision of the Court of Appeal, Cape Coast dated 22nd March, 2022.
NDC MPs present
The Attorney-General submitted also, that for the avoidance of doubt, the Votes and Proceedings of Parliament showed that apart from Hon. Sarah Adwoa Safo, all the other 137 members of the majority were present in the Chamber, with the Minority rather missing as many as eight (8) members.
This meant that the NDC had only 128 MPs in Parliament on the day the E-Levy was passed whilst the NPP had 137 MPs present, thus satisfying the quorum of 137 constitutionally required for the taking of a decision in Parliament, following the cancellation of the election of the Assin-North MP, James Gyakye Quayson.
Presumption of regularity
The Attorney-General finally submits in his affidavit in opposition that “there is a constitutional and statutory presumption of regularity of all laws passed in Ghana and therefore an injunction to restrain the enforcement of the E-Levy Act 1075 is unjustified, especially as plaintiffs have failed to demonstrate a cause of action”.
He also argues that the plaintiffs have “failed to show how the reliefs sought by them in the substantive suit will be defeated or rendered nugatory by a refusal of an interlocutory injunction”.
The Supreme Court will hear the application to restrain the enforcement of the E-Levy Act on Wednesday, 4th May, 2022.