Sir Probyn Inniss Plaintiff/Appellant v The Honourable Attorney General for St. Christopher and Nevis Defendant/Respondent [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: ROBOTHAM, C.J.,BISHOP, J.A.
• Judgment Date: 07 October 1985
• Judgment citation (vLex): [1985] ECSC J1007-1
• Docket Number: CIVIL APPEAL NO. 2 of 1984
• Court: Court of Appeal (Saint Kitts and Nevis)
• Date: 07 October 1985

[1985] ECSC J1007-1

IN THE COURT OF APPEAL

Before:

The Honourable Mr. Justice Robotham Chief Justice

The Honourable Mr. Justice Bishop

The Honourable Mr. Justice Byron (Acting)

CIVIL APPEAL NO. 2 of 1984

Between:

Sir Probyn Inniss

Plaintiff/Appellant

and

The Honourable Attorney General for St. Christopher and Nevis

Defendant/Respondent

Appearances:

W. Cenac, Q.C., and Henry Browne for the Appellant

Terrence Byron and Emile Ferdinand for the Respondent

JUDGEMENT

ROBOTHAM, C.J.

1 On November 27, 1982, the appellant a former Governor of the State of St. Christopher and Nevis, brought an originating summons in which he sought the following relief:

• (1) An order declaring that he is entitled to be paid a gratuity and pension with effect from November 27, 1981 under and by virtue of The Governor (Emoluments and Pensions) Act 1968 No. 11/1968 and the Pensions Act Cap. 195 as amended, after he had served for twenty five years in a pensionable office in the public service of the State (as it will hereinafter be called);

• (2) an order that he is entitled to be remunerated at the rate of $4,000 per month being the salaryhe was being paid at the date when he ceased to be Governor, in respect of six months leave which he had earned and accumulated up to July 31, 1975;

• (3) an order that he is entitled to be remunerated at the said rate of $4,000 per month for six months leave which he had earned and accumulated during his tour of duty as Governor from August 1, 1975 to November 26, 1981;

• (4) an order that he is entitled to be paid leave passage grant on the same basis as a Permanent Secretary in respect of his tour of duty as Governor of the State.

2 The matter was heard over several days and on July, 1984, the learned trial Judge handed down a written judgment refusing all the relief sought. He dismissed the action with costs to the respondent to be taxed or agreed. From this decision he has now appealed to this Court.

3 The affidavit in support of the summons showed that on July 1, 1956, the appellant was appointed a clerk, which is a pensionable office in the public service of the State. By a series of promotions, he was eventually on August, 1966, appointed to the post of Permanent Secretar, also a pensionable post. This post was held by him until July 31, 1975, by which time he had accumulated leave amounting to six months.

4 On July, 31, 1975, whilst still holding that pensionable post of Permanent Secretary in the public Service of the State, he wrote a letter to the Acting Governor the relevant paragraphs of which read as follows:—

"Dear Sir,

I have the honour to request that I be permitted to retire from the Civil Service in order to accept the office of Governor of the State of St. Christopher-Nevis-Anguilla to which Her Majesty the Queen has graciously appointed me with effect from 1st August, 1975.

There is a passage grant and leave amounting to six months to my credit but in the circumstances these may have to remain frozen."

5 No reply to this letter was exhibited but on August 1, 1975 the appellant assumed the office of Governor. The Commission dated the third day of July 1975, signed by Her Majesty was exhibited. From that date, third July, it is reasonable to assume that for at least one month prior to the appellant having written the letter seeking permission to retire, his name had been submitted to Her Majesty for his appointing to the office of Governor, a post he could not have held simultaneously with that of Permanent Secretary, It was the appellant's contention that from the fact that he took up the post the permission was implied. It follows that from July 1, 1956, when he was first appointed, up to July 31, 1975 when he retired from the post of Permament Secretary, he had served a period of 19 years.

6 The appellant ceased to be Governor of the State on November 26, 1981. The circumstances under which he left are not relevant, but what is most relevant is that he served for a period of six years, three months, and twenty-six days in the office of Governor. When this is added to the nineteen years served up to July 31 when he demitted office as Permanent Secretary, it adds up to a total of over 25 years of service.

7 The primary questions which must be decided in the alternative before it can be ascertained what relief if any the appellant is entitled to are:—

• "(1) Are these two periods of service, the one following immediately upon the other namely19 years up to July 31, 1975 and 6 years 3 months and 26 days from August 1, 1975 to November 26, 1981 as Governor making a total of over 25 years, to be regarded as one continuous and unbroken period of public service so as to qualify him for, or entitle him to a pension under section 6(a) of the Pensions Act, Cap 195, or

• (2) are they to be regarded as two distinct periods incapable of being totalled in which case he would only be entitled to receive a pension under section 8 of the Governor. (Emoluments and Pensions) Act 1968, No. 11/68.

8 Section 6 of the Pensions Act Cap. 195 as amended by the Pensions (Amendment) Act No. 4 of 1975 reads:—

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

  • (a) after he shall have served twenty-five years in the public service, or on or after attaining the age of fifty years (whichever is earlier)."

9 It is the Attorney General's contention that it was broken service incapable of being married and the appellant was therefore only entitled to a pension in accordance with \section 8 of the Governor'. (Emoluments and Pensions) Act No. 11 of 1968 which reads:—

"Every person who having held the office of Governor on or after the commencement of this Act ceases at any time after the commencement of this Act to be Governor, shall be paid a pension under this Act with effect from the date on which he ceases to be Governor."

10 Section 9 fixes the annual rate of the pension.

11 It was the appellant's contention that he qualified for a pension under both the Pensions Act and the Governor's Act 1968, and that inthese circumstances he should have been permitted to exercise the option given him under section 14 of The Governor's Act 11/1968.

12 The exercise of this option was denied hin by the Government in that by letter dated March 4, 1982, he was advised that he would be paid a pension in respect of his service as Governor in accordance with the provisions of the Governor (Emoluments and Pensions) Act 1968. (See 1 of the relief sought in the Summons), This decision the appellant contended had the effect of completely effacing, and leaving unrewarded, his nineteen years of service up to 1975. The same letter also advised him that he would be paid a terminal payment in lieu of the six months leave which he had accumulated as Permanent Secretary as at July 31, 1975 calculated at the rate of salary which he earned at that time. The appellant's contention was that he should be paid for this at the rate of $4,000 per month, which was the Governor's salary when he ceased to hold that office (see 2 of the relief sought).

13 Section 14 of the Governor's (Emoluments and Pensions) Act No. 11 of 1968 reads:—

"14. The pensions granted under the provisions of this Act shall be in lieu of and not in addition to any pension or other benefit payable under the provisions of the Pensions Act from the Consolidated Fund of the State.

14 The proviso thereto which is the crux of this appeal reads:—

"Provided however that where any person is entitled to a pension under this Act and would, but for the provisions of this section, have been entitled to a pension or other benefit payable fron the Consolidated Fund of the State under the provisions of the Pensions Act, such person may opt to receive such pension or other benefit under the provisions of the Pensions Act instead of a pension under this Act.

15 The learned trial Judge, if I might capsulate his findings without doing violence thereto, found that the appellant in order to satisfy the condition of having twenty-five years service as required by section 6(a)of the Pensions Act, would have had to complete these twenty-five years as at July 31, 1975 before becomiag Governor. Further, that only in those circumstances would he be entitled to exercise the option given by section 14 of the Governor Act 11/1968 and that he could, not

"marry the period of "public service"in the civil service to that of his "public service" as Governor to achieve the twenty-five year requirement."

16 The appellant's entire appeal is centered around these findings of the trial Judge.

17 At the commencement of his presentation before this Court, Counsel for the appellant stated his agreement with the findings of the trial Judge which were:

• "(1) That at the date on which the appellant retired as Permanent Secretary he had served approximately 19 years in she Civil Service and on the date when he ceased to The Governor, he had served in that office for approximately 6 years and 3 months making acombined total of 25 years and some months. Counsel emphasized the use of the word "combined" by the Judge.

• (2) That service as Governor in the State is "public service" as defined by section 2(1) of Cap. 195.

• (3) That the office of Governor is a pensionable office within the meaning of Section 2(l) of Cap. 195 and as declared by S.R.O. No. 9 of 1967."

18 In view of these findings, Counsel/submitted that there were two main issues which the Judge had to decide in order to determine whether or not the appellant was entitled to a pension under section 6 of the Pensions Act Cap. 195. These were:—

• "(l) Was the appellant entitled to combine his service of 19 years as Permanent Secretary with his service of 6 years 5 months and 26 days as Governor in order to satisfy the...