IN THE MALAWI SUPREME COURT OF APPEAL

AT BLANTYRE

M.S.C.A. CIVIL APPEAL NO. 50 OF 2000

(Being High Court Miscellaneous Civil Cause No. 81 of 1998)

BETWEEN:

THE ATTORNEY GENERAL ..................................APPELLANT

- and -

THE HON. CHAKUFWA CHIHANA....................RESPONDENT

BEFORE: THE HONOURABLE MR. JUSTICE UNYOLO, JA

THE HONOURABLE MR. JUSTICE TAMBALA, JA

THE HONOURABLE JUSTICE MSOSA, JA

Matenje, Solicitor General, for the Appellant

Bazuka Mhango, Counsel for the Respondent

Mbekwani (Mrs), Court Official

J U D G M E N T

Tambala, JA

This is an appeal against the Judgment of Mkandawire, J, sitting in the High Court in a matter that was brought by originating summons. The summons sought among other declarations the following declaration -

“Whether or not a President and/or Vice President who resigns from office before the term of office runs out, is eligible to receive pension earned during the period of service as President and or Vice President in accordance with section 82 of the Constitution”.

After considering affidavit evidence which was presented before him and after hearing submissions made by Counsel for both parties, the learned Judge in the court below made a decision in favour of the respondent and made the declaration sought in the summons. The Honourale Attorney General, being dissatisfied with that decision, appeals to this court.

The appellants filed five grounds of appeal. In ground 3(a) the appellants contend that the learned Judge failed to interpret and give proper meaning to section 82 of the Constitution. It was further contended that had the learned Judge properly construed the section he would have come to the conclusion that a Vice President is entitled to pension, gratuity and other benefits if he or she completes a full term of the office. Section 82 of the Constitution provides -

“The President, First Vice President and Second Vice President shall receive such salary, allowance or pension as may, from time to time, be determined by an Act of Parliament in consultation with President and shall have such adequate number of residences and personal staff, at State expense, as an Act of Parliament may prescribe”.

The learned Solicitor General, representing the appellants, submitted that the proper approach when interpreting a constitutional provision is to consider the relevant provision in the light of the Constitution as a whole, in order to ascertain and give effect to the intention of Parliament. In support of the submission, he cited the case of Nseula v. Attorney General M.S.C.A. Civil Appeal No. 32 of 1997 in which the Honourable the Chief Justice stated at page 9 as follows -

“Such construction is imperative in our judgment because the true meaning of the words used and the intention of Parliament in any statute and particularly in a Constitution can best be properly understood if the Constitution is understood as a whole. It is a single document and every part of it must be considered as far as it is relevant in order to get the true meaning and intent of any part of the Constitution. The entire Constitution must be read as a whole without “one provision destroying the other but sustaining the other”.

The learned Solicitor General then drew this court’s attention to section 83(2) of the Constitution which states that the First Vice President and the Second Vice President shall hold office from the date of the administration of the oath of office to them until the end of the President’s term of office, unless their office should come to an end sooner in accordance with the provisions of the Constitution. He then argued that a Vice President is required to serve a full term of office, namely from the time of taking an oath of office to the end of the President’s term, before he or she can be entitled to terminal benefits such as gratuity, pension and other benefits.

An examination of the brief facts of the present case shows that in about 1994, the respondent was invited by the current Government to serve in the Government in the capacity of Second Vice President. He accepted the offer. He served only 20 months and suddenly resigned on his own volition, citing corruption in Government as a reason for his resignation. About one year after the resignation he claimed from the Government terminal benefits such as pension, gratuity and other benefits in terms of the Presidents (Salaries and Benefits)Act, 1994. The Government took the view that a Vice President who voluntarily resigns from office is not entitled to those benefits. It accordingly advised the respondent who subsequently commenced the present action.

There appears to be no material disagreement between counsel for the appellants and the respondent regarding the proper approach to be taken when interpreting a constitutional provision. However, Mr. Mhango representing the respondent argues that the Presidents (Salaries and Benefits) Act does not make any distinction between a Vice President who completes his or her term of office and the one who resigns before completing the term. He contends that such distinction would constitute discrimination and cause the Vice President who resigns to be regarded as a less capable person. We do not share the view that to make a distinction between a person who completes a term of office and a person who abandons office through a voluntary resignation would be discriminatory. On the contrary it would be unfair to reward a person who resigns in the same way as a person who serves loyally and completes his full term. To reward the two persons equally would result in injustice and unfairness in relation to the one who renders a loyal service and for a full term. Therefore justice and fairness would demand that a Vice President who resigns from his office should be treated differently from a Vice President who serves his nation for his entire term. To treat them equally would not make sense at all.

After considering the learned Solicitor General’s submissions in respect of ground 3(a) and in the light of the general practice in the area of contracts of employment in both the public service and private sector, we think that the argument made by the Solicitor General, that a Vice President who resigns before completing his or her term of office is not entitled to the terminal benefits, specified in the Presidents (Salaries and Benefits) Act, is both sensible and fair.

The learned Solicitor General argued grounds 3 (b) and (c) together. In respect of these grounds two important arguments were made. The first is that the learned judge in the court below interpreted section 4 (1)(d) of Presidents (Salaries and Benefits)

Act in isolation of sections 82 and 83(2) of the Constitution and that he in the process came to an erroneous conclusion, that a Vice President who voluntarily resigns before he completes his term of office is nevertheless entitled to terminal benefits under the Act. Section 4(1)(d) of the Presidents (Salaries and Benefits) Act provides

“a former Vice President shall, upon ceasing to hold office of Vice President, be entitled to the gratuity, monthly pension, benefits and facilities specified in Part IV of the schedule”.

The benefits specified in the relevant part of the schedule to the Act include -

Lump sum gratuity calculated in accordance with the Civil Service formula or one year tax free salary whichever is greater;

Tax free monthly pension at fifty percent (50%) of the Vice President’s salary;

One (1) motor car;

Housing allowance at forty percent (40%) of salary at the time of ceasing to hold the office of Vice President.

Free electricity

Free water

Free medical services.

Staff

1 cook, 1 chauffeur, 1 gardener, 1 security guard.

OTHER BENEFITS

Duty free importation of one motor vehicle once in every five years;

In each year one return air ticket for the former Vice President and the Spouse to travel abroad;

Housing allowance for staff;

Medical Insurance for the former Vice President Spouse and children under the age of 18 years.

In interpreting section 4(1)(d) of the Act the learned judge in the court below said at page 5 of his judgment -

“It is important in my view, to note that the Act uses the word “shall” which is mandatory. The benefits shall be paid upon ceasing to hold office. The Act does not say that the holder of the office must complete his term of office before he can be entitled to the benefits in Part IV of the schedule.

It must be observed that Parliament has not attached any special meaning to the word “cease”. It must therefore be taken to have its ordinary meaning. In that case resignation is one way of ceasing to hold office”.

Clearly the learned judge adopted the literal interpretation approach which led him to come to the conclusion that a Vice President who voluntarily resigns after holding the office for a short time is entitled to the same terminal benefits as a Vice President who completes his full term of office. The submission of the learned Solicitor General is that, on a proper construction of section 4(1)(d) of the Presidents (Salaries and Benefits) Act in the light of sections 82 and 83 (2) of the Constitution, it can be shown that entitlement to the terminal benefits, specified in the Act, would depend on completion of the term of a Vice President and that a Vice President who resigns before completing his term would not be entitled to such benefits. Mr. Mhango argued on behalf of the respondent that there is no distinction in the Act between a Vice President who completes his term of office and the one who leaves office by resignation. He said that entitlement to the benefits does not depend on completion of term of office. He argued that length of service is irrelevant for the purpose of determining entitlement to the terminal benefits under the Act.

We are unable to accept the view that Parliament could have intended that a person who serves for only one month as Vice President and resigns on his own volition should end up enjoying the same terminal benefits as a person who serves a full term of the office of Vice President. We take the view that voluntary resignation and entitlement to terminal benefits are terms which are totally inconsistent with each other; they are mutually exclusive. That the benefits specified in the Presidents (Salaries and Benefits) Act were intended to benefit those persons who would retire after completing their term of office, is supported by the long title of the Act which is -

“An Act to provide for the salary, benefits, pension and other retirement benefits of the President, Vice President, former Presidents and former Vice Presidents of the Republic of Malawi and to provide for matters connected therewith or incidential thereto”. (emphasis supplied)

In the case of Seaford Estates v. Asher (1949) 2 K.B. 481 Lord Denning said that the duty of an interpreter of a statute is to find and give effect to the intention of Parliament. He said at page 499 -

“We do not sit here to pull the language of Parliament to pieces and make nonsense of it. That is an easy thing to do and is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gap and making sense of enactment than by opening it up to destructive analysis”.

We take the view that by readily adopting the literal approach to the interpretation of section 4 (1)(d) of the Act, the learned Judge, in the court below, was engaged in the process of pulling the language of Parliament to pieces and making nonsense of it. He in the process fell into error and came to a startling conclusion that a person who freely and voluntarily resigns is entitled to terminal benefits in the same way and to the same extent as the person who completes a full term of his office.

Section 5 (1) of the Act provides that a former President or former Vice President shall not be entitled to the benefits specified in the Act if that President or Vice President is in receipt of a salary from Government or other state body. A former President or former Vice President would also be precluded from receiving the benefits if he ceased office upon impeachment or he was convicted of an offence and sentenced to a term of imprisonment exceeding six months, and in addition to such impeachment or imprisonment, the National Assembly, by a motion supported by a majority of two thirds of its members, resolves to deprive him of the benefits under the Act. The learned Judge in the court below held the view that the list of situations in which a former President or Vice President would be deprived of the benefits specified in the Act is exhaustive. He said that he could not add voluntary resignation to that list. We agree that the mentioning of circumstances under which a former President or Vice President would be deprived of the relevant benefits does cause some problems for the appellants. However, it is probable that had the drafter of the Act thought about voluntary resignation, he would have included it as one of the circumstances which would preclude entitlement to the benefits. It is also probable that the draftsman considered voluntary resignation such an obvious disentitling factor that he found it unnecessary to mention it specifically in section 5 of the Act. It could also be argued that since a voluntary resignation and entitlement to terminal benefits are mutually exclusive terms, Parliament would have expressly provided in the Act that voluntary resignation would not lead to the deprivation of the benefits specified in the Act, if that were the intention of Parliament.

We take the view that, interpreting section 4(1)(d) of the Act in the light of sections 82 and 83(2) of the Constitution and also in the light of the long title of the Act and guided by the principle of ascertaining and giving effect to the intention of Parliament, the position taken by the learned Solicitor General is the correct one. We come to the conclusion that it was not the intention of Parliament that a President or Vice President who freely and voluntarily resigns before his term of office comes to an end should receive the benefits specified in the Presidents (Salaries and Benefits) Act 1994.

It was also submitted by the appellants in relation to grounds 3(b) and (c) that it is a principle of statutory interpretation that a construction of a statutory provision which would lead to absurdity or inconsistency or repugnancy must be avoided on the clear ground that Parliament cannot be taken to have intended that an absurd or inconvenient or anomalous result should flow from the application of a statute. That principle is supported by the case of Corocraft v. Pan American Airways (1969), Q.B. 616 in which LORD DENNING sitting in the English Court of Appeal said at page 655 -

“But the literal meaning of the words is never allowed to prevail where it would produce manifest absurdity or consequencies which can never be intended by the legislature”.

The case of Caledonian Railway Company v. North British Railway Company (1880) 6 A.C. 114 is to the same effect.

In the present case, the literal interpretation of section 4(1) (d) of the Act which was adopted by the learned judge, would lead to a person who serves as a Vice President for such a short period as one week to become entitled to all those benefits and privileges which are specified in Part IV of the schedule to the Act. That would clearly be an unmeritorious gain which would border on corruption. In the course of a Presidential term of five years over 20 persons could serve as Vice Presidents through a succession of voluntary resignations and presidential appointments; those persons could be entitled to claim the benefits and privileges contained in Part IV of the schedule. The result would be a huge loss of resources incurred by the nation; political stability of the nation may also become a casualty. Clearly, that is a scenario which Parliament cannot be taken to have intended. We, therefore, take the view that the learned Judge erred when he adopted the literal approach, when interpreting section 4(1)(d) of the Presidents (Salaries and Benefits) Act, which led him to hold that a person who voluntarily resigns after serving as Vice President for only 20 months is entitled to gratuity, pension and all those other benefits specified in the Schedule to the Act.

At page 7 of his judgment the learned Judge observed that it was not the intention of Parliament that someone who serves a short period should enjoy the same benefits as the one who serves for 10 years. He explained that under section 5(2)(b) the National Assembly may cause a Vice President to be deprived of the whole or part of the benefits. Our view is that the learned Judge misunderstood that part of section 5 (2)(b) relating to the intervention which may be made by the National Assembly. That part of section 5 2(b) must not be taken as standing on its own; it actually qualifies the requirement of conviction for an offence and a sentence which exceeds six months. It, probably, also qualifies the requirement for impeachment. The result is that the National Assembly can only intervene to deny a former President or Vice President, of the whole or part of the benefits in the event that the President or Vice President has been impeached or convicted of an offence and sentenced to a term of imprisonment exceeding six months.

It is probable that the learned Judge’s misunderstanding of section 5(2)(b) led him to erroneously prefer the literal interpretation of section 4 (1) (d). Had he properly understood section 5 (2)(b) he would have fully appreciated the manifest absurdity which would result from the literal interpretation and would, probably, have considered such approach unacceptable. That, in our view, disposes of ground 3 (d) of the appeal.

Finally in ground No. 3(e) the appellants once again drew this court’s attention to the terms of the declaration sought by the respondent. They said that the respondent requested the learned Judge to declare whether a President or Vice President who resigns from office before his term of office runs out would be eligible to receive pension earned during the period of service as President or Vice President. We would observe that the question raised in the originating summons was general and rather academic. The respondent simply sought the learned judge’s opinion on the eligibility to receive pension of a President or Vice President who resigns before the end of his term of office. The question did not relate specifically to the eligibility of the respondent to receive pension under the circumstances. We are unable to understand why Counsel for the respondent preferred to frame the issue in such general terms, in the originating summons. In terms of the declaration sought by the respondent the learned Judge was required to answer the question by simply stating that the President or the Vice President is eligible to receive pension or that he is not so eligible.

We would wish to agree with the learned Solicitor General that according to the ordinary meaning of the word pension it is not correct to say that pension is earned during the period of service. Our view is that pension is paid upon retirement and obviously at the end of agreed period of service. It is paid in recognition of past service.

The learned Solicitor General cited the case of Nseula v. Attorney General and Another M.S.C.A. Civil Appeal No. 32 of 1997 in which BANDA, C.J., said at page 6 -

“In our judicial system it is the parties themselves who set out the issues for determination by the court through their pleadings and both of them must strictly adhere to the pleadings. In the present case although the judge stated that he had invited counsel to address him on the effect of the provision of section 88(3) of the Constitution the matter was not raised on the pleadings by either party. In our view it was perfectly open to him to express his opinion by way of obiter, on what he felt was the effect of the provision of section 88(3) of the Constitution. It was therefore wrong for the judge to decide on a matter which had not been raised by the parties on their pleadings and he should not have made it the definitive basis of his decision”.

In the light of the observation made in the Nseula case we would agree with the Solicitor General that the learned Judge was wrong when he made a declaration which went beyond the terms of the declaration sought by the respondent. The learned Judge ended his judgment by declaring that the respondent is entitled to gratuity, pension and other benefits. The learned Solicitor General complains that the learned Judge did not even invite counsel to address him on the question of the respondent’s eligibility to receive gratuity and other benefits. We agree that the learned Judge erred when he decided that the respondent was entitled to gratuity and other benefits in view of the fact that, according to his own pleadings contained in the originating summons, the respondent sought only pension.

The record of appeal shows that the learned Judge delivered his judgment on 23rd October, 2000. On 1st November, 2000, counsel for the respondent appeared before the learned Registrar for the purpose of assessment of damages. Among the damages, the respondent claimed K200,000.00 representing gratuity, K316,673.00 representing pension, K253,339.00 for housing allowance, K550,000.00 for motor fuel expenses, K925,000.00 being maintenance expenses, K55,000.00 for electricity, K37,000.00 for water, K77,700.00 being medical allowance, K222,000.00 for the entertainment of a driver, K195,360.00 for security, K143,190.00 for a Cook, K55,500.00 for a gardener, K74,000.00 for driver’s housing, K66,600.00 for the Cook’s accommodation, K74,000.00 for the security guard’s accommodation, and K38,850.00 in connection with accommodation for a gardener. The total amount of damages claimed came to K3,228,712.00. It would appear that the learned Registrar granted the damages to the respondent. We agree with the learned Solicitor General that the respondent did not claim damages in the pleadings. He did not request the learned Judge to grant him damages. The learned Judge did not grant any damages to the respondent. It was therefore wrong for the learned Registrar to assess and grant damages to the respondent.

In our view both the assessment and the granting of damages by the learned Registrar was an unlawful exercise. It had no legal basis.

We are unable to accept the learned Judge’s decision which held that a person who freely and voluntarily resigns from the office of Vice President is, in terms of section 4(1)(d) of Presidents (Salaries and Benefits) Act, entitled to almost the same gratuity, pension and other terminal benefits as a Vice President who completes his term of office. We take the clear view that no reasonable Parliament can have such intention when enacting legislation dealing with terminal benefits of persons holding the offices of President or Vice President. We therefore set aside the declaration made by learned Judge in the court below. The order made by the learned Registrar requiring the appellants to pay a sum of K3,228,712.00 to the respondent is also set aside. The respondent shall pay costs of the proceedings both in this court and in the court below. The appeal is allowed.

DELIVERED this ............day of................2002 at Blantyre.

Sgd..........................................

L. E. UNYOLO, JA

Sgd..........................................

J. B. KALAILE, JA

Sgd..........................................

D. G. TAMBALA, JA