1985-1986 SILR 244

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 240 of 1986.

MAEKE

v

SOLOMON ISLANDS NATIONAL PROVIDENT FUND BOARD

High Court of Solomon Islands
(Ward C.J.)
Civil Case No. 240 of 1986

15 October 1986 at Honiara
Judgment 22 October 1986

National Provident Fund Act s.21(2) - whether employee who has reached age 50 and has withdrawn his contribution on that basis and who continues to work and contribute thereafter is subject to restriction on further withdrawals after he ceases employment.

Facts:

The plaintiff attained the age of 50 years in 1984 and pursuant to s.31 of the S.I. National Provident Fund Act 1973 withdrew all his contributions to the fund. Thereafter he continued working and contributing until 1986 when he ceased employment. He then applied to withdraw his later contributions but the Manager of the Fund declined on the ground that s.21(2) of the Act provides that anyone who withdraws any of his contribution on the basis of attaining age 50 must wait five years before he may withdraw any more. The plaintiff then brought an Originating Summons to determine whether a member who has reached the age of 50 and has withdrawn his contribution on that basis and who continues working and contributing thereafter is subject to the restriction contained in s.21(2) on further withdrawals after he has ceased to be an employee. The plaintiff argued that s.21(2) speaks of an "employee" being barred from further withdrawals and since he was no longer an "employee" as defined in the Act, subsection (2) no longer applied to him.

Held:

1. An instrument must receive a construction according to the plain meaning of the words therein and must be read as a whole to ascertain the intention of its framers. One cannot, however, assume an intention apart from the language itself and then bend the language to fit that assumption. (Leader v. Duffy (1888) 13 Appeal Cases 294 at p. 301 per Lord Halsbury L.C. followed).

2. S.21(2) of the Act is clear according to the plain meaning of its words which speak of an "employee" withdrawing his contribution at age 50 but contains no further reference to status when speaking of later withdrawals. Moreover, reading the Act as a whole, section 2 contains no provision enabling withdrawals simply because a member has ceased employment, therefore Parliament did intend to restrict withdrawals whether or not the member is still an employee.

3. Accordingly, when an employee withdraws only part of his contribution at age 50, he is prevented by section 21(2) from making any further withdrawals until five years have elapsed.

Accordingly the case was dismissed.

Cases considered:

Leader v. Duffy (1888) 13 Appeal Cases 294
Stephens v. Cuckfield RDC (1960) 2 AER 716

Kenneth Brown for the Plaintiff
Francis Waleilia for the Defendant

Ward CJ: The plaintiff brings this action by way of originating summons and seeks the court’s ruling on the proper interpretation of section 21(2) of the Solomon Islands National Provident Fund Act (the ‘Act’).

The question posed is "whether or not a member of the defendant who has attained the age of 50 years and on that basis withdrawn his contributions pursuant to section 31 as read with section 2 of the Act and thereafter continues to contribute to the Fund is subject to the restriction on further withdrawals contained in section 21(2) of the said Act after he has ceased to be an employee as defined in the Act."

The facts are undisputed and are set out in the plaintiff’s affidavit.

The plaintiff was born in March 1934 and, in 1984, having reached 50 years of age, he exercised his right under section 31 of the Act and withdrew all his contributions. He was, at that time, working as Ombudsman and continued in the office until the 30th June 1986. Since that date he has taken no further employment.

He applied to the Fund to withdraw the contributions he had made since his earlier withdrawal under section 31 but the Manager of the Fund declined relying on section 21(2).

Section 31 of the Act provides that contributions paid to the fund may be withdrawn by a member only with the authority of the Board and that will not be given before, the date of entitlement but, on the application by a member after the date of entitlement, section 32 states that the Board "shall" pay the amount.

The date of entitlement is defined in section 2:-

"‘date of entitlement’ means, in respect of any member of the Fund, the day (whichever shall first occur) on which it is proved to the satisfaction of the Board that such member-

(a) has attained the age of fifty years; or

(b) has died; or

(c) is physically or mentally incapacitated from ever engaging in any further employment; or

(d) is about to leave or has left Solomon Islands with no intention of returning thereto;

(e) being a woman, has married;

(f) has attained the age of forty years and has satisfied the Board that he has retired from employment as an employee;"

It is notable that entitlement does not arise simply on cessation of employment.

Part VI of the principal act was headed "Elderly Employees and Members Re-employed after withdrawal" and contained the single section 21. That section was repealed in its entirety by the Solomon Islands National Provident Fund (Amendment) Act 1976 and replaced by the present section 21. It appears the heading was not repealed but it is inappropriate to the new section as re-employment is no longer included in section 21.

Section 21(1) and (2) now read:-

"21(1) When any member of the Fund attains the age of fifty years, contributions shall, subject to the provisions of this Ordinance, continue to be payable to the Fund in respect of him, in accordance with the provisions of section 13(1), at any time when he is an employee.

(2) Any employee who has attained the age of fifty years and has withdrawn any amount standing to his credit in the Fund on the ground that he has reached that age, shall not be entitled to withdraw from the Fund any further amount standing to his credit therein until five years have elapsed from the date of the last withdrawal."

Mr Brown’s argument for the plaintiff is that section 2 gives an exhaustive definition of "employee" and sets it entirely in the present tense. There is no dispute that the plaintiff is no longer an employee under the Act and so, continues the plaintiff’s argument, subsection (2) no longer applies to him. Mr Brown seeks to draw further support for this argument from the use of the term "member" in subsection (1) and "employee" in the remaining subsections.

It is right that the statute must be read as a whole and construction made of all the parts together but I fear Mr Brown is straining to import a meaning that simply is not there. Having formed the view that the Act ought to allow such withdrawal once the member retires, he is trying to work that idea into the words of the Act.

Lord Halsbury L.C. warned of this danger in Leader v. Duffy (1888) 13 Appeal Cases 294 at 301. When dealing with a similar situation:

"All these refinements and nice distinctions of words appear to me to be inconsistent with the modern view - which is I think in accordance with reason and common sense - that, whatever the instrument, it must receive a construction according to the plain meaning of the words and sentences therein contained. But I agree that you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it. But it appears to me to be arguing in a vicious circle to begin by assuming an intention apart from the language of the instrument itself, and having made the fallacious assumption to bend the language in favour of the assumption so made."

That case involved a marriage settlement but the same principles apply to the construction of statutes.

More recently Upjohn LJ stated:

"It is the duty of the court to interpret the language in which Parliament has thought fit to enact statutes and in particular to resolve verbal obscurities, ambiguities or grammatical difficulties and to explain the meaning of words and phrases …. but when Parliament uses ordinary words ….. which are in common and general use in the English language, it seems inappropriate to try to define them further by judicial interpretation and to lay down as a rule of construction the meaning of such words unless the context requires that some special or particular meaning should be placed upon such words." (Stephens v. Cuckfield RDC (1960) 2 AER 716 at 719.

Is it possible to find the meaning of section 21(2) by reading the words with their ordinary meaning? It seems to this court that there is no difficulty presented and subsection (2) is clear in its terms.

As Mr Brown points out, it refers to an "employee" who withdraws money on attaining the age of fifty years but the subsequent restriction on further withdrawals does not refer to his status any further. The words used:

"shall not be entitled to withdraw from the Fund any further amount ….. until five years have elapsed from the date of the last withdrawal"

clearly relate to the act of withdrawal irrespective of any change in the member’s employment.

In this case, the plaintiff was an employee when he withdrew his money from the Fund. Any further withdrawal can only take place after five years have elapsed from the date whether or not he is still an employee.

The absence of any provision entitling a member to withdraw funds simply because he has ceased employment gives support to the view that Parliament did intend to restrict withdrawals from the Fund.

It would also appear that, where an employee withdraws only a part of the sum standing to his credit with the Fund when he attains 50 years, he is prevented, by section 21(2) from withdrawing the balance until five years have elapsed.

The plaintiff’s claim is dismissed with costs to the defendant.