The Attorney-General v The Honourable Chakufwa Chihana

[2002–2003] MLR 294 (SCA)

Division: Supreme Court of Appeal
Date: 23 April 2002
MSCA Civil Appeal
Number:
50/2000
Before: Msosa, Tambala, Unyolo SC JJA
[1] Civil procedure – Pleadings – Court’s authority in determining matter beyond pleadings
[2] Constitution – Interpretation – Constitution to be understood as a whole – Intention of
Legislature
to be taken into account
[3] Constitution – Interpretation – Inclusive approach as opposed to literal approach
Page 295 of [2002–2003] MLR 294 (SCA)
Editor’s Summary
The question before the trial Court was 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 period of service as President and/or Vice President in accordance with section
82 of the Constitution. The lower court answered the question in the affirmation and specifically
determined the respondent was entitled to pension and other benefits. The appeal challenged the
literal interpretation of the Constitution and further that the lower court went beyond the
pleadings and made a finding in favour of the respondent when the question before the court
merely sought the interpretation of the Constitution generally.
Held – Allowing the appeal:
(1) That in the construction of the Constitution the intention of Parliament is imperative.
(2) That a Constitution must be understood as a whole; that it is a single document.
(3) That on a holistic construction of the Constitution it would be unjust, unfair and
unrealistic to allow pension to a President and/or Vice President who has resigned.
(4) That the pleadings did not seek the other remedies which the court granted and
therefore that it was wrong for the court to go beyond the pleadings and award to damages.
Cases referred to in judgment
Caledonian Railway Company v North British Railway Company [1880] 6 AC 114 – applied
Corocraft v Pan American Airways [1969] QB 616 – applied
Nseula v Attorney-General MSCA Civil Appeal No. 32 of 1997 – applied
Seaford Estates v Asher [1949] 2 KB 481 – applied
Judgment
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
Honourable 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
MSCA Civil Appeal No. 32 of 1997 in which the Honourable the Chief Justice stated at 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 dministration 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 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. 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 incidental thereto.” (Emphasis mine.)
In the case of Seaford Estates v Asher [1949] 2 KB 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 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 resident 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
Corocroft v Pan American Airways [1969] QB 616 in which Lord Denning sitting in the English
Court of Appeal said at 655:
“But the literal meaning of the words is never allowed to prevail where it would produce
manifest absurdity or consequences which can never be intended by the legislature.”
The case of Caledonian Railway Company v North British Railway Company [1880] 6 AC 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 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, 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
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 MSCA Civil
Appeal No. 32 of 1997 in which Banda CJ said at 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 23 October, 2000.
On 1November, 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
representing gratuity, K316 673 representing pension, K253 339 for housing allowance, K550
000 for motor fuel expenses, K925 000 being maintenance expenses, K55 000 for electricity,
K37 000 for water, K77 700 being medical allowance, K222 000 for the entertainment of
a driver, K195 360 for security, K143 190 for a cook, K55 500 for a gardener, K74 000 for
driver’s housing, K66 600 for the cook’s accommodation, K74 000 for the security
guard’s accommodation, and K38 850 in connection with accommodation for a gardener.
The total amount of damages claimed came to K3 228 712. 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 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.
For the appellant:
Matenje
For the respondent:
Bazuka Mhang