Bata Shoe Company Guyana Ltd v Commissioner of Inland Revenue; Attorney General Guyana Unit Trust Management Company Ltd et Al v Commissioner of Inland Revenue and Attorney General

• Jurisdiction: Guyana
• Judge: Haynes, C.,Crane, J.A.,Luckhoo, J.
• Judgment Date: 15 November 1976
• Neutral Citation: GY 1976 CA 38
• Docket Number: Civil Appeals Nos.10 & 12 of 1975
• Court: Court of Appeal (Guyana)
• Date: 15 November 1976

Court of Appeal

Haynes, C.; Crane, J.A.; Luckhoo, J.A.

Civil Appeals Nos.10 & 12 of 1975

Bata Shoe Co. Guyana Ltd.

and

Commissioner of Inland Revenue

Attorney General Guyana Unit Trust Management Co. Ltd. et al

and

Commissioner of Inland Revenue and Attorney General

Appearances:

C. Lloyd Luckhoo, S.C., J. A. King, S.C., with him, for appellants.

Dr. M. Shahabuddeen, S.C., D.N. Sharma, Senior Legal Adviser, and R. Ramgal, Senior Parliamentary counsel, for the respondents.

Constitutional Law - Fundamental rights and freedoms — Whether provision for exit tax interfered with citizens' right to freedom of movement.

Revenue Law - Retroactive application of taxing legislation — Whether valid.

Haynes, C.

1 Without giving separate reasons of my own, I agree that the appeals should be dismissed with costs.

Crane, J.A.

2 Consonant with ground 5(a) of the grounds of appeal, objection was taken by learned counsel for the appellants to the trial judge's reference to the Budget proposals of the Minister of Finance in Parliament on December 22, 1969. In that ground, it is alleged the judge took extraneous matter into consideration when, in his judgment, he mentioned that on that day the Minister told Parliament, inter alia, that the nation's course was being charted towards a broadened tax base; that mobilisation of Guyana's financial resources was essential; that there should be movement in the direction of channelling savings in defined areas, and that commercial banks, insurance companies, largo companies and corporations would be called upon to play a more meaningful rata in keeping with the development of Guyana and her people. Accordingly, as there was noel to exorcise some measure of control over the operation of insurance companies, Government intended to introduce a corporation tax, a withholding tax, and a tax on the surrender of insurance policies. The Minister, the trial judge explained, also mach reference to delays in the payment of income tax occasioned by the lodging of frivolous appeals against assessment, and of Government's intention in the near future to make appellants to the Board of Review and to the judge in chambers deposit, respectively, two-thirds and the whole of the amount in dispute.

3 It is now being urged that the judge's reference to the Budget Speech was not proper, particularly the Minister's unequivocal intimation that the motive behind imposing the deposit provisions was the prevention of frivolous appeals. This was clearly detrimental, and so was the judge's reference to the Attorney General's statement as “well taken” with him, i. e., the spinning out of appeal procedures by appellants, to whom the judge caustically referred as “tax dodgers and assorted recalcitrant anal conscienceless defaulters,” might well result in empty coffers. It is now urged all this was extraneous and inadmissible to the issues the trial judge had to decade and had the effect of influencing his mind in the decision at which he arrived on the propriety of the deposit provisions. Speaking for myself, I am substantially in agreement with the above criticisms that have been levelled against the trial judge for the things he said and for paying regard in the manner he did to the parliamentary history of the matter before him, i.e., to the budgetary proposals and the Minister's remarks relating to the motive, behind prospective legislation, obviously as a means of exploring the meaning of it. Admittedly, such a course is not unknown. A similar course was adopted by no less a judge than Cockburn, C.J. in S.E. Rly. v. Rly. Commrs., (1880) 5 Q.B.D. 217, at p. 236, when he proceeded to quote a speech made by Mr. Cardwell on the introduction of a Bill into the House of Commons, and a speech made by the Lord Chancellor on introducing it into the House of Lords; but the batter opinion is that judges should eschew such a course in the light of the following warning given by Lord Wright in Assam Rly. & Trading Co. Ltd. v. I.R.C., [1935] 1 A.C. 445, at p. 458: It is clear that the language of a minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible and the report of commissioners is even more removed from value as evidence of intention because it does not follow that their recommendations ware accepted.” The principle in the Assam case has never been doubted insofar as it has been sought to exclude ministerial proposals in Parliament or reports of commissions as evidence of the intention of the legislature. But where there is ambiguity in a statute, it is well-established that a court may have regard to the report of a committee presented to Parliament containing proposals for legislation which resulted in the enactment of the statute, in order to determine the mischief which the statute was intended to remedy. It is, however, not permissible to look at such a report for a direct statement of what the proposed enactment means.

4 It is unquestionably a rule that what may be called the parliamentary history of an enactment is not admissible to explain its meaning; although the history of the law and legislation may be looked at. As Jessel, M.R. said in Holme v. Guy (1887) 5 Ch. D. 901, at p. 905:

“The court is not to be oblivious … ….. of the history of law and legislation. Although the court is not at liberty to construe an Act of Parliament by the motives which influenced the legislature, yet when the history of law and legislation tells the court, and prior judgments tell this present court, what the object of the legislature was, the court is to see whether the terms of the section are such as fairly to carry out that object and no other, and to read the section with a view to finding out what it means, and not with a view to extending it to something that was not intended.”

5 Again, in Letang v. Cooper, [1964] 2 All ER., at p. 933, Lord Denning, M.R. came out in support of this view when he said:

“It is legitimate to look at the report of such a committee (the Tucker Committee on the Limitation of Actions), so as to see what was the mischief at which the Act was directed. You can get the facts and surrounding circumstances from the report, so as to sue the background against which the legislation was enacted. This is always a great help in interpreting it. But you cannot look at what the committee recommended, or at least, if you do look at it, you should not be unduly influenced by it. It does not help you much, for the simple reason that Parliament may, and often does, decide to do something different to cure the mischief.”

6 And quite recently in the house of Lords, Viscount Dilhorne spoke in the same vein in Black-Clawson v. Papierwerke, [1975] 1 All E.R. 810:

“It does not follow that if one can have regard to the whole of a committee's report one ought also to be able to refer to Hansard to see what the Minister in charge of a bill has said it was intended to do. In the course of the passage of a bill through both Houses there may be many statements by Ministers, and what is said by a Minister in introducing a bill in one House is no sure guide as to the intention of the enactment for changes of intention occur during its passage.”

7 For these reasons, I cannot too strongly agree with learned counsel for the appellants that it was quite wrong for the judge not only to have referred to the intention behind prospective legislation as having emanated from the lips of the Minister of Finance and the reasons for the enactment of that legislation, but, above all, to have expressed in no uncertain terms his approval, that in the circumstance stated by the Minister, Parliament was justified in imposing whatever conditions it considered just on the right to appeal in order to frustrate the intention of tax dodgers who are not fairly sharing their burden of taxation and who can delay payment of taxes for inordinately long periods by frivolous appeals all of which lead to short collection of revenue and, moreover, to have openly expressed the opinion that “this is as it should be.” As learned counsel, quite rightly in my view, voicing his disapproval, insisted that the deposit requirements of two-thirds or the whole of the amount in dispute, as the case may be, can neither be justified by the necessity to collect revenue, nor by whatever the Minister may care to say in his Budget Speech, but wholly and solely by judicial determination in accordance with the Constitution.

8 Having satisfied myself that the trial judge erred in referring to and commenting as he did upon the parliamentary Budget Speech and unreservedly accepting as “well taken” the intention as expressed by the Minister responsible for the legislation, I have been considering how well grounded can be the complaint that the judge's mind was so affected that his conclusions were wrong. Here, I must point out that the learned judge in all material respects went on to give full and adequate reasons for decision on all the issues with which he dealt, and as I am substantially in agreement with them, I am unable to say that he was unduly influenced by the unfortunate reference to the Minister's budgetary proposals to such an extent that they did in any way affect his mind. The legislation mentioned in Parliament on December 22, 1969 was indeed enacted shortly afterwards within the compass of three statutes, viz.:

• (i) Act No. 30/1970, i.e., The Corporation Tax Act — assented to on December 12, 1970.

• (ii) Act No. 31/1974, i.e., Income Tax No. 2 (Amendment) 1970 — assented to on December 12, 1970.

• (iii) Act No. 25/1971 — Miscellaneous (Fiscal) Amendment Act, 1971 — assented to on December 31, 1971.

9 There was another statute in dispute — the Insurance Act, No. 25 of 1970, described as “an Act to provide for the registration of insurance business in Guyana,” but challenge to its validity having been withdrawn no issue arose in...