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GRA Files Motion To Be Part of Creed Energy’s D5.3 Million Lawsuit Against Access Bank

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Justice Ebrima Jaiteh of the high court

By Landing Ceesay

The Gambia Revenue Authority (GRA) has formally requested to become a party in the ongoing legal dispute between Creed Energy Limited and Access Bank, filing a motion on notice.

Creed Energy Limited, established in 2021 under The Gambia’s Companies Act of 2013, is involved in various business activities, including energy consultancy, petroleum trading and retaining, allied activities, and general trading.

In their lawsuit against Access Bank Gambia Limited, Creed Energy Limited alleges that the bank transferred D339,963,424.01 of their funds to the account of Ultimate-Beige Logistics Gambia Company Limited. The plaintiff contends that this action by Access Bank has hindered the state’s ability to collect taxes owed by Creed Energy Limited for the importation and sale of Diesel in the country.

Moreover, Creed Energy Limited asserts that the Gambia Revenue Authority is currently conducting an investigation into their operations to determine the amount of tax payable for the mentioned Diesel transactions. According to Creed Energy Limited, Access Bank’s actions are perceived as contributing to the obstruction of the state in collecting the rightful taxes owed by the company.

In their Motion, Gambia Revenue Authority (GRA) is seeking the High Court’s order to include them as an essential party in the legal proceedings. They argue that they possess a direct interest in the subject matter and will be significantly impacted by the outcome of the case.

Backing their motion is a 14-paragraph affidavit affirmed by Mr. Fafanding Cham, the Deputy Commissioner of the Large Taxpayers Unit at GRA. Within the affidavit, Mr. Cham highlights that GRA is a statutory entity, established under Section 3 of the Gambia Revenue Authority Act, Cap 82:02. The GRA’s role is to serve as the government’s agent, tasked with administering, assessing, and collecting revenue on behalf of the government.

Furthermore, Mr. Cham notes that the plaintiff in the case, Creed Energy Limited, is a company incorporated under The Gambia’s laws and holds the status of a taxpayer, identified by Tax Identification Number 210022090xx.

“The Plaintiff (Creed Energy Limited) was incorporated on 7th May 2021 and commenced trading in petroleum products in the month of May 2023 pursuant to a contract with a Dubai based company known as APOGEE FZC. Taxpayers, including the Plaintiff, are obligated under the Income and Value Added Tax Act 2012 (“IVAT Act’) to file quarterly returns and pay the self-assessed taxes for each trading quarter. However, the Plaintiff neither filed nor paid any taxes during the period May 2021 to November 2023,” Mr. Cham said in an affidavit.

Mr. Cham further stated that aside from the obligation to file annual tax returns and pay the self-assessed taxes, the Creed Energy Limited is also obligated under the IVAT Act to withhold taxes, on behalf of GRA at the rate of 10% for a resident contractor or 15% for a non-resident contractor.

Mr. Fafanding Cham asserted that the Creed Energy Limited refused and/or neglected to deduct the withholding tax payable under its contract with APOGEE FZC, a non-resident company and pursuant to Section 96 of the IVAT Act, the Commissioner General may recover the taxes from the person required to withhold the tax or the recipient of the payment.

He said sometime in November 2023, Creed Energy Limited received a confidential report from a government source on its activities, APOGEE FZC, and another company named Ultimate Beige Logistics (Gambia) Ltd., which led to the investigations of the said companies for possible tax evasion.

“The confidential report disclosed that the Plaintiff (Creed Energy Limited) maintains a main account and sub-accounts with the Defendant (Access Bank) where proceed of the sale of petroleum products are deposited. Our tax officers are currently in the process of auditing the said companies with a view of assessing the total taxes liable to be paid by the Plaintiff pursuant to the Agreement.

“I am informed by Counsel Abdulrahman Bah, Esq. who has personal conduct of this case at his office in Banjul on the 22nd November 2023 at about 1 p.m., and I verily believe him as follows: That the Defendant (Access Bank) has received instructions from APOGEE FZC to move the funds from the Plaintiff account bearing account number 001011000xxxx to Ultimate Beige Logistics (Gambia) Ltd.; that the Commissioner General of the Applicant is vested with powers under Section 209 to recover any tax due in a court of competent jurisdiction if a taxpayer fails to pay a tax due; and that any tax due under the IVAT Act takes priority over all other debts,” Mr. Cham said.

Mr. Cham added that Counsel Abdulrahman Bah, Esq., has informed him that the Commissioner General has valid reasons to suspect that Creed Energy Limited will not fulfill its tax obligations and lacks substantial assets to use as collateral for the outstanding tax amount.

Furthermore, Mr. Cham conveyed that he has been made aware of the Commissioner General’s authority, as stipulated in Section 211 of the IVAT Act, to reclaim taxes from individuals holding funds on behalf of a taxpayer.

Mr. Cham emphasized that the outcome of the legal proceedings could directly impact the Ghana Revenue Authority (GRA), especially if the funds are transferred from Access Bank to a third party.

“I have been informed by Counsel Abdulrahman Bah, Esq. that under the circumstances, the Applicant (GRA) is a necessary party to this suit and ought to be joined as a Plaintiff in this suit. That I make these statements to the best of my knowledge, information, and belief,” Mr. Cham said.

During the presentation of the motion, Counsel Sambou, the attorney representing GRA, asserted that they hold the conviction that the funds currently held by Access Bank on behalf of Creed Energy Limited could be utilized to address all tax-related matters in accordance with the provisions of the Income and Value Added Tax Act.

In response to the motion, APOGEE FZC’s attorney, Counsel Amie Bensouda, urged the court to dismiss the motion filed by GRA. Bensouda argued that the motion is without merit and that GRA should file its own lawsuit if it seeks to recover its money. Bensouda emphasized that GRA cannot join Creed Energy Limited in the current suit.

Access Bank’s lawyer, Counsel C. E. Mene, also requested the court dismiss the motion. Mene argued that the motion was filed incorrectly and should be dismissed. Justice Ebrima Jaiteh of the Gambian High Court adjourned the case until Friday for a ruling on the motion and a continuation of the hearing.

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