Solomon Islands National Provident Fund Board v Sanga [2007] SBHC 131; HCSI-CC 276 of 2006 (10 October 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 276 of 2006

SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD

–V-

ALUTA KAKADI SANGA

(PALMER CJ.)

Date of Hearing: 22nd May 2007
Date of Judgement: 10th October 2007

G. Fa’aitoa for the Plaintiff/Applicant
J. Apaniai for the Defendant/Respondent

Palmer CJ.:

By originating summons filed 14th July 2006, the Solomon Islands National Provident Fund Board ("the Board") sought answers to the following questions:

1. Whether by its proper and correct construction the word "and" as used in part (ii) of subsection (2)(a) of Section 29 of the SINPF Act Cap 109 (Cap.) means that:-
   
   • (a) the member ought to satisfy the age requirement simultaneous or together with the fact of him/her being retired; or alternatively;
   • (b) the member only needs to satisfy the age requirement to satisfy the whole of the ambit of the provision i.e. section 29(2)(a)(ii)?
     
2. Whether by its proper and or correct construction the word "retired" as used in section 29(2)(a)(ii) of the SINPF Act Cap 109 ("Cap 109") could also mean or include any or all of the following:-
   
   • (a) been terminated; or
   • (b) been made redundant; or
   • (c) completed a fixed term contract; or
   • (d) resigned; or
   • (e) such other meaning this Court deems meet.
     
3. Whether by its proper and or correct construction, the clause "has attained the age of forty years and has retired from employment as an employee" for the purpose of section 29(2)(a)(ii) could mean and apply to any of the following situation:-
   

A member who has attained the age of forty years and:

(a) has been terminated from employment; or
(b) has made redundant from employment; or
(c) has terminated a fixed term of contract of employment; or
(d) has completed a fixed term of contract of employment; or
(e) has resigned from employment; or
(f) has been given early retirement; or
(g) such other situation.

4. Whether by its proper and or correct construction, the clause "has attained the age of forty years and has retired from employment as an employee" within section 29(2)(a)(ii) of Cap. 109 could apply to just about any situation in which a member satisfies the age requirement but is not in any employment?
   

The main issue for consideration is to determine the meaning of the phrase "has attained the age of forty years and has retired from employment as an employee" in section 29(2)(a)(ii) of the Solomon Islands National Provident Fund Act (Cap. 109) ("the Act")?

In the preparation of the judgment in this case, it came to my attention that the "particular facts" which supposedly gave rise to the commencement of this case, were missing from the pleadings and affidavits filed. I gave benefit of the doubt to learned Counsels as an oversight and required them to produce the facts before proceeding further with the judgement on the premise that it appeared from the questions of law posed for the court to determine, that the facts were not in dispute.

To my dismay it transpired that there was really no dispute in this case. The respondent was none other than the Manager Operations, an officer in the employ of the applicant itself and responsible for payment of withdrawal funds of members of the Solomon Islands National Provident Fund. He was not an aggrieved party to this case. Surely, learned Counsels could not have failed to realise that this court does not give legal opinions or academic answers to legal questions raised before it without a dispute, a cause of action or a legal claim in issue between the parties[1]. The fact Counsels in this case may have agreed to raise such questions before the court does not guarantee that the court will have jurisdiction to hear the matter or agree to hear the case.

If the Board wants a legal opinion on the matter it has its own in-house lawyer to do that for it. Many big companies and statutory bodies have in-house lawyers to assist and provide guidance as to what the law is on matters that regularly come before them for decision-making. If the Board wants a second legal opinion it can source that from a more senior counsel or legal expert on the matter before making up its mind about what to do. The Court should not be used to obtain a legal opinion; that is tantamount to an abuse of the court process.

This case was brought under the provisions of rule 2 of Order 58 of the High Court (Civil Procedure) Rules, 1964 ("the Rules"), which provides as follows:

"Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of any provision of a written law, may apply by originating summons for determination of such question of construction, and for a declaration as to the right claimed."

It is clear that no legal or equitable right of the Board is being claimed as against the respondent in this case and which gave rise to the questions of construction being put before the court.

Order 27 rule 5 of the Rules however provides that:

"No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed or not."

In Uluhoru v. Isabel Timber Company Ltd[2], his Lordship Awich J. considered the application of this rule and referred to the Court of Appeal case in The Prime Minister v. Governor-General No. 14/98 in which the Court of Appeal decided to proceed with the hearing of an appeal when its judgement would merely be declaratory in nature without any specific relief resulting to the plaintiff/appellant because the question in the case had been overtaken by events rendered moot before the appeal came up for hearing and consequential relief was no longer a relevant issue. The Court of Appeal approved the considerations set out in cases from England and Australia that the plaintiff must have a real interest in raising the question[3] and that the power to grant declaration should be exercised with a proper sense of responsibility and with a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making[4]. The Court of Appeal pointed out the added reasons in the case before it that the questions to be decided had occurred on earlier occasion and could recur, and that the questions raised were important constitutional questions affecting Parliament and the political process of the Solomon Islands.

Fortunately for the parties this case is in their favour. I am satisfied the applicant had demonstrated that it has a real, genuine interest in the questions posed for consideration of this court and that the facts which relate to those questions had previously occurred and will recur. I am satisfied therefore that whilst Order 27 rule 5 was never mentioned or relied on, it would cure the defect in this case.

The applicant filed for the benefit of this court an affidavit by Goretti Tarusia on 14th July 2006 of different scenarios in which some members had previously been paid by the Board under section 29(2)(a)(ii) of the Solomon Islands National Provident Fund Act (cap 109) ("the Act"); that is, those who had attained forty years and had purportedly retired. They included the following situations:

(i) those who had been summarily dismissed by their employer for misbehaviour or misconduct;
(ii) those who had been made redundant;
(iii) those whose contracts of employment had been terminated to facilitate the engagement of others;
(iv) those who had not been re-engaged on completion of their contracts;
(v) those who had resigned from their employment;
(vi) those who had taken early retirement; and
(vii) those whose contracts had been terminated on notice;

Mr. Apaniai submits that the word "retired" should be given a liberal construction as meaning "no longer being in employment" in any of the situations mentioned in the definition of the word "employee" in section 2 of the Act. He submitted that the meaning of the word "retire" in the Oxford Advanced Learner’s Dictionary of Current English[5] should be applied. That dictionary defined "retire" as meaning having stopped or been told to stop working. He says that for the ground in section 29(2)(a)(ii) to be fulfilled, a member only needs to prove that he/she is no longer in an employer/employee type of employment and has stopped working. It matters not whether the member will again enter into an employer/employee relationship in future because section 25(3) of the Act envisages the likelihood that the member might again re-enter the employer/employee employment situation. That section provides that in such a situation the member will not be able to withdraw his funds until the age of 50.

The meaning of the phrase "has retired from employment as an employee ".

To determine the meaning of this phrase, the court is obliged to consider what the legislative intention was when the enactment was made.

In his submissions Mr Fa’aitoa traced the history of that legislation to the position prior to the 1988 amendment. The relevant provision then, section 32 provided as follows:

"...the Board shall after the date of entitlement of any member of the Fund otherwise than upon his death, and upon his application or that of any person having care of custody of him under the provisions of the Mental Treatment Ordinance, pay to the applicant the amount standing to the credit of such member in the Fund."

In 1988, section 29(2)(a)(ii) of the Act was introduced as an amendment. Its focus it seems were the poor manual workers, labourers and copra cutters. It was envisaged at that time that having started work fairly early in life, by the time they had reached their 40th birthday they would have worked for some 20 or so years. At that age it is thought they would be more prepared to retire when they are still strong to return to their villages and start life afresh. At that time, the expectation was that everyone who retired would be returning to their home villages in the Provinces or Islands.

The 1988 amendment included the deletion of paragraph (e), which had permitted a woman getting married to withdraw her funds. A new paragraph (e) was then added, which enabled an employee who had ceased employment other than through resignation and had not been re-engaged in employment in the three months immediately preceding the date he applied to withdraw his funds, to withdraw them. That amendment opened the floodgates for withdrawals of funds for any reason other than resignation it seems and so Parliament saw fit to introduce a further amendment in 1990 to restrict its application. It confined the unemployment ground to one of unfair dismissal or redundancy.

Those amendments resulted in the closure of many loopholes through which employees were getting around the legislation to have funds withdrawn. It was then that employees who had been terminated other than by retirement sought withdrawal under the ground in section 29(2)(a)(ii) of the Act. They did this by arguing that the word "retire" should be given a broad construction to encompass other forms of termination which were now no longer available to them.

Assistance may be obtained in determining the meaning of the phrase "has retired from employment as an employee" by considering other similar uses of the phrase or words in other legislation. For instance, in the Public Service, the word "retire" or "retirement" is given specific meaning. The Public Service recognises a clear distinction between terminations on grounds of retirement to other forms of termination. Regulation 73 of the Public Service Commission Regulations, 1979 for instance, describes different forms of termination by retirement as follows:

" 73. This Part deals with premature retirement and termination of employment of permanent officers, not otherwise provided for in these Regulations, namely:

(a) Retirement after reaching the minimum prescribed retirement age, other than voluntary retirement.

(b) Premature retirement in the public interest.

(c) Premature retirement to facilitate improvements in Government organisation.

(d) Termination of employment because of redundancy.

(e) Premature retirement on medical grounds."

At least five categories of termination by retirement are described:

(i) retirement after reaching the minimum prescribed retirement age[6],
(ii) voluntary retirement;
(iii) premature retirement in the public interest;
(iv) premature retirement to facilitate improvements in Government organisation; and
(v) premature retirement on medical grounds.

I have also perused the Employment Act, Labour Act and Trade Disputes Act if they contained any similar phrase or words that might assist but nothing is mentioned. The Pensions Act (cap. 107) however did contain provisions on what retirement in the Public Service entailed. I quote:

"8.—(1) No pension, gratuity or other allowance shall be granted under this Act to any officer except on his retirement from the public service in one of the following cases—

(a) if he retires from public service under the Government of Solomon Islands—

(i) on or after he attains the age of fifty-five years or, in special cases with the approval of the Secretary of State, fifty years;

(ii) where the officer is serving in accordance with the revised conditions of service, on or after attaining the age of forty-five years or, in the case of an officer appointed to the public service of Solomon Islands on or after the 1st January, 1968, fifty years; subject to the officer having given to the Governor-General notice in writing of his intention to retire not less than six months prior to the date upon which such retirement is to take effect:

Provided that the Governor-General may in his discretion in any case waive the requirement to give notice;

(iii) on the abolition of his office;

(iv) on compulsory retirement for the purpose of facilitating improvement in the organisation of the department to which he belonged, by which greater efficiency or economy may be effected;

(v) on medical evidence to the satisfaction of the Governor-General or the Secretary of State that he is incapable by reason of any infirmity of mind or body of discharging the duties of his office and that such infirmity is likely to be permanent;

(vi) in the case of termination of employment in the public interest as provided in this Act;

(b) if, having been transferred to other public service—

(i) he retires after he attains the age at which he is permitted by the law or regulations of the public service in which he is last employed to retire on pension or gratuity or, if no age is prescribed by the said law or regulations, he retires after he attains the age of fifty; or

(ii) he retires in any other circumstances in which he is permitted by the said law or regulations to retire on pension or gratuity:

Provided that sub-paragraph (ii) of this paragraph shall not apply in the case of a female officer who retires for the reason that she has married or is about to marry.

(2) Notwithstanding that she is not otherwise eligible under this section for the grant of any pension, gratuity or other allowance, a gratuity may be granted to a female officer, in accordance with the provisions of this Act, who retires from the public service for the reason that she has married or is about to marry."

That legislation describes variations of retirement in the Public Service for purposes of eligibility to payment of pensions, gratuity or allowances. These include the following situations:

• retirement on reaching the age of fifty five years;
• retirement in special cases approved by the Secretary for State (Permanent Secretary to the Public Service) at age fifty years;
• retirement on the abolition of his office;
• compulsory retirement for the purpose of facilitating improvement in the organisation of the department;
• retirement on medical grounds;
• retirement by termination in the public interest;
• retirement by a female officer for the reason that she has married or is about to marry.
  

A common denominator in some of the varying forms of retirement is a minimum age limit, whether it is 45, 50 or 55 years. In any event the legislation makes clear the grounds on which retirement may be based upon.

It is important to appreciate that in some instances the phrase "has retired from employment as an employee", will entail a question of law fixed by legislation, rules or regulations. In others it will be a question of interpretation of the contract of employment whilst in others still it may entirely be a question of fact for the Board alone to determine.

In the absence of express words defining the grounds on which retirement may be based the phrase "has retired from employment as an employee" must be distinguished from other forms or types of termination of employment. To retire from employment is a specific form of cessation from employment. In the minimum it should be distinguished from the following forms of termination or cessation of employment:

(i) those who had been summarily dismissed by their employer for misbehaviour or misconduct;
(ii) those who had been made redundant;
(iii) those whose contracts of employment had been terminated to facilitate the engagement of others;
(iv) those who had not been re-engaged on completion of their contracts;
(v) those who had resigned from their employment;
(vi) those whose contracts had been terminated on notice;

A person who has been dismissed summarily for offensive behaviour or misconduct cannot by any reasonable or common sense construction of the phrase be construed as having retired from employment as an employee. To purport to do so is attempting "legal gymnastics" and leads to an absurdity in the law.

The same would apply to persons who had been terminated under the grounds set in paragraphs (ii) – (vi) above. Such persons cannot be construed to have retired from employment. Cases involving termination by redundancy are catered for separately in section 29(c) of the Act. If a contract of employment or some legislation however provides that an employee may retire in anyone of those situations, the question whether he has retired on any one of those grounds will be a question of fact for the Board to be satisfied on the evidence before it.

Ultimately the question whether an employee had retired from employment as an employee will be one for the Board and Board alone to be satisfied. In many instances it will be a question of fact and the burden of proof would be on the employee to satisfy the Board of the relevant requirement.

I am now able to answer the questions posed as follows:

Q1. There are two separate requirements to be fulfilled in order for section 29(2)(a)(ii) to be satisfied; the age factor and that of retirement.

Q2. See answer to question 3 below.

Q3. The question whether an employee had retired from employment as an employee is essentially a question of fact for the Board and Board alone to determine. It may or may not apply to the situations put to this court for its consideration. That responsibility cannot be shifted to the court or anyone else to discharge. The Board must have in place clear guidelines and requirements as to what is needed to fulfill section 29(2)(a)(ii) for Parliament had given that responsibility to it. Any employee aggrieved by the decision of the Board has right to go to court to challenge it.

The burden of proof lies with the employee from start to finish. Retirement is a specific form of termination which necessarily involves the consent or agreement of both the employer and employee. Unless expressly provided for by legislation or in the contract of employment, the phrase " has retired from employment as an employee" cannot be construed to mean the same thing as having been terminated for any reason other than retirement; redundancy; after completion of a fixed term contract; or resignation.

On the other hand a person who has reached the age of forty years and given early retirement must qualify under this provision for it is but a form of retirement and the question whether early retirement has indeed been given is a question of fact for the Board to determine.

Q4. This question has already been answered and I do not need to repeat myself.

The Court.

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^[1] The Attorney General v. The Prime Minister CASI-CC 24-06, 23^rd March 2007, pages 2 and 3;
^[2] [1999] SBHC 140; HC-CC 197 of 1999 (18 October 1999), at page 4 ff,
^[3] Russian Commercial and Industrial Bank v. British Bank of Foreign Trade [1921] 2 AC 433, Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564
^[4] Ibeneweka -v- Egbuna [1964] 1 WLR 219, judgment of the Privy Council in appeal case from Nigeria.
^[5] Sixth edition by A.S. Hornby
^[6] Example, 55 years for persons holding the offices of Auditor-General, Director of Public Prosecutions, Public Solicitor and Commissioner of Police with the exception of the proviso in Section 129(2) of the Constitution, 55 years for all Public Officers and 60 years for Judges of the High Court.