(HIGH COURT)

IDRIS MOHAMED ABDALLA OMER EL BANNA v. IBRAHIM AHMED AND OTHERS

HC-REV-41-1968

Principles

  Civil Service—Civil servant—Legally entitled to receive a salary and not actually receiving salary during effective service—Civil Service Pensions Act 1962, S. 2

  Civil Service—Notice—Civil Service Pensions Act 1962, ss. 31 and 33 is imperative—Cannot be dispensed with by either the civil servant or the state—Civil servant continues to be civil servant during the period demanded by the state

Civil Service—Resignation—It is of right but subject to the notice under Civil Ser vice Pensions Act 1962

  Constitutional Law—Disqualification—Sudan Transitional Constitution (Amended 1964) art. 46—Ordains the impeachment of members and members to be, i.e. candidates

  Constitutional Law—Question as to qualification of member—Sudan Transitional Constitution (Amended 1964) art. 49—Does not oust the jurisdiction of the court in matter involving question of qualification of members

(i) A civil servant who is in effective service under the Civil Service Pensions Act 1962, s. 2, is one who is legally entitled to receive salary and not one who actually receives salary.

(ii) The requirement as to notice is imperative under Civil Service Pensions Act ,1962, ss. 31 and 33. Therefore the notice cannot be dispensed with by either the state or the civil servant except in the manner set by the above Act. Thus a civil servant continues to be a civil servant during the period of notice demanded by the state.

(iii) Any civil servant is of right entitled to submit his resignation, but subject to the provisions as to notice under the Civil Service Pensions Act 1962.

(iv) The Transitional Constitution (Amended 1964) art. 46 ordains the impeachment of members and members to be, i.e. candidates for the elections.

(v) The Transitional Constitution (Amended 1964) art. 49 does not oust the jurisdiction of the Courts in matters involving questions of qualification for members. The speaker comes in cases enumerated in article 47 of the said Constitution.

Advocate: Mahdi Sharif for the applicant

Judgment

Dafalla El Radi Siddig J. April 1, 1968 : —Applicant is challenging the decision of an electoral tribunal judge, thereby deleting his name from the roll of nominees in constituency No. 30, Khartoum Rural Council.

The facts admitted may be reduced into writing thus: Applicant is a pensionable civil servant. He filed an application on March 11, 1968 for resignation on the ground that he wanted to nominate himself for the elections. On March 17, 1968, he received a letter from the Under Secretary of the Ministry of Information and Social Affairs bringing the news home to him that he had been retired since February 25, 1968 and that he had to serve a six months notice period.

The revision raises many issues which will be hereafter discussed.

The first issue is as to whether applicant is a civil servant or not. Four contentions had been made by the learned counsel for applicant in support of his conclusion that applicant is no longer a civil servant.

At the outset I thought it appropriate to start with the definition of a civil servant as a premise for the arguments which will follow. The Civil Service Pensions Act 1962, s. 2 defines “Effective Service” thus:

“It means, subject to the provisions of section 9, service on full pay performed by a pensionable official after attaining the age of 18 years and in respect of which deductions from pay towards pension and includes any additions to effective service made or deemed to be made under any provisions of this Act.”

Section 9 of the Act enumerates the cases which fall outside the above quoted definition NOW, we turn to the grounds put forward by the learned counsel for applicant.

It is contended by applicant’s counsel that the former did not receive a salary. I could not bring myself to agree with applicants that the test is the actual receiving of a salary. It suffices, in my view, if applicant is legally entitled to receive a salary. To put it in legal terms the fact that applicant has a chose in action for the salary brings him within the purview of the definition of a civil servant who is in effective service. It may be argued that applicant may renounce his right to receive a salary during the notice period and so what would be the position? This question is not only closely affiliated to the question as to the effect of the notice, but also it brings us to the assertion by applicants that the notice is the right of the civil servant.

With due respect the contention is not tenable. The requirement as to notice is demanded by the Civil Service Pensions Ac 1962 ss. 31 and 33. The method for commuting the notice period is expressly and unequivocally promulgated in section 33 (2) referred to above. The requirement as to notice is imperative. Therefore, the notice cannot be dispensed with at the leisure of either the state or the civil servant except in the manner set by the Act.

The facts admitted in this case had heretofore been mentioned. It is obvious that any civil servant is as of right entitled to submit his resignation; and the state, qua employer is bound to accept it, subject of course to the provisions as to notice. Thus even if an official resigns for the sake of nominating himself for the elections, still the provisions as to notice hold good. The Civil Service Pensions Act 1962, s. 91, only regulates the entitlements of an official who resigns to run for the public office through the elections. It does not dispense with notice. This is so because resigning for the elections is just another reason for filing one’s resignation.

It is clear from the facts that the state and the applicant were not ad idem. Applicant applied for resigning and commuting the notice period while the State’s reply was that he had been retired under section 30 (b) of the Act.

That applicant had been retired under the discretion of the Minister of Information under section 30 (b) is not in question here. Therefore, I take it that applicant is still a civil servant during the six months notice period demanded in the Ministry’s letter dated March 17, 1968. Hence, since no favorable reply to applicant’s letter dated March 11, 1968 is there, and since the notice period had not been commuted in the manner ordained in the Civil Service Pensions Act 1962, s. 33 (2), it is therefore my conclusion that applicant is still a civil servant. This renders the contention as to the applicability of section 31 rather than section 33 by the learned counsel for applicant, however, logical as it may seem, rather futile and out of place.

Ergo, it is my holding that applicant is still a civil servant.

Now we turn to discuss an issue which is absolutely within the ambit of a different branch of law.

It is contended for applicant that even if he is a civil servant he can not be denied the right to run for the elections since there are no qualifications for candidacy.

A brief historical note may not be out of place since it has a direct bearing on the issue now raised before this court. There were specific qualifications for nominees as such in the 1965 Constituent Assembly Elections Act. That Act has been repealed by the Provisional Order for the Constituent Assembly Elections of 1968. The provision as to qualifications of nominees has not been expressly restored. Now a specific provision in the Sudan Transitional Constitution (Amended 1964) art. 46 (hereinafter referred to as the Constitution) is directly in issue here.

In fact both articles 46 and 49 of the Constitution had been in issue in the Lower Court too.

The contentions made by the learned counsel for applicant are that the Lower Court acted ultra vires in that it dealt with a matter which is outside its jurisdiction and he prayed for interpreting articles 46 and 49. Each plea will be hereafter discussed.

As to the former plea the learned District Judge based his holding on the directive no. 3, which had been issued by the Election Commission to the registration officers, directing them that the disqualifications in article 46 of the Constitution are also the disqualifications of the nominees. The Lower Court quoted the decision of the Court of Appeal in Adam Osman Adam v. Ahmed Mahmoud Abdel Rahim (1963) S.L.J.R. 17, and went on to argue that the directive was issued under article 43 of the Constitution, and since the officer followed it, it is therefore binding on us. With due diffidence I tend to disagree with the learned Judge. The ratio decidendi of the case of Adam Osman, I think, is that it draws the line between the directives of the Election Commission and the rules issued by it in its legislative capacity under the powers delegated to it by the Council of Ministers. Such powers are at present conferred on the Election Commission under the Constituent Assembly Elections Act 1968, s. 20. I hold that while the former are not binding the latter are binding being part of the law of the land. Therefore, the former are question able in courts. Let us follow the learned District Judge’s argument to its logical conclusions. Since he holds that a registration officer can refuse to abide by the directive therefore I take it to mean that it does not have the force of law. The conclusion of the learned Judge seems to unduly bestow the making of directives on the registration officers since he held that the course they elected to be followed is binding.

It sounds illogical that the registration officers exercise a discretion contrary to the directive of the Election Commission which has the power to issue directives and their word becomes supreme. The maxim nemo dat qui non habet applies with its full rigour here. The conclusion of the lower court is in my view diametrically opposed to the holding in Adam Osman’s case.

I absolutely agree with the learned counsel for applicant that the learned Judge has no powers to deal with the case. Thus despite the argument with respect to the directive it needs no intelligence to see that a question as to the interpretation of articles 46 and 49 of the Constitution had arisen. Therefore the lower court ought to have stayed the proceedings and referred the matter to the High Court, being a matter absolutely within its exclusive domain.

The second contention by the learned counsel for applicant is that article 46 deals with disqualifications as to the membership of the Constituent Assembly and not the nominees. To put our finger on the legal issue, it is as simple as this: Does article 46 of the Constitution ordain

qualifications of candidates for the elections? Before embarking on answering this question a few lines devoted to the procedure followed may be appropriate. I regarded the matter in issue as arising in proceedings before a District Court under Order XXV,s.2(c)  of the rules laid down by the rules committee for dealing with constitutional cases. The Attorney-General had been served with notice, but after having showed readiness to contest the matter he withdrew. The matter is now being decided on the written submissions of applicant and respondent. We turn to discuss the pith and core of the matter in issue.

Article 46 of the Constitution ordains: “The following persons shall be disqualified of the membership of the Constituent Assembly".

Inter alia article 46 (a) deals with persons holding office. Emphasis is laid on the word membership.

To my mind the use of the preposition “from” in the English version is rather restricting to the interpreter. Had it been that the preposition “for,” together with some additional word had been used, it would have been more in conformity with the Arabic version. In my view the Arabic version gives a wider ambit to the court. According to it the qualifications could be for those aspiring to hold the public office and also to those who already did for the sake of retaining it. This discrepancy between the two versions is reconcilable under the Interpretation and General Clauses Act 1958, s. 28, in that the Arabic version in the case before us prevails since the Amendment of the Constitution had taken place after 1956.

Two other arguments which support the conclusion I arrived at derive from article 49 of the Constitution. Article 49 reads:

“Any question which may arise as to the right of any person to be or to remain a member of the Constituent Assembly shall be referred to its speaker who may if he thinks fit submit the same to the Civil High Court.”

It is clear that inter cilia article 49 ordains the impeachment of members and members to be. The word “any” in article 49 is apt to easily mislead the reader. In the construction of the sentence it refers to the qualifications and not to time for impeachment. To my mind since article 49 generally refers to qualifications it has to be read in conjunction with articles and 46 of the Constitution which bear the qualifications for membership. Member to be could inter cilia mean a candidate, a nominee. Therefore that article 46 conceives the qualifications for nominees is becoming apparent to see.

Furthermore, since an impeachment in the House of Parliament is provided for by the Constitution it will be absurd to assume that its framers intended that the qualifications as to membership should only be questioned after the candidate is actually elected for the public office. This argument tends to implement my argument adumbrated above in that the Arabic version is rather wide, so wide that it leaves room for holding that article 46 refers also impliedly to the qualifications of nominees. Thus since the Arabic version allows for two viewpoints I felt bound, according to the rules of interpretation, to be inclined to the course that removes absurdity on the part of the legislator. See Maxwell Interpretation of Statutes (11th ed., 1962), p. 197.

The provisions in article 49 of the Constitution have also been questioned. It is obvious that there is no speaker today. The speaker will be elected by the Assembly after the elections. The issue as I can see it is: Does article 49 mean that questions as to qualifications arising today ought to be dealt with after the elections? Article 49 is unequivocally clear in that it conceived questions as to qualifications of a member to be, which means a nominee. To my mind article 49 becomes operative only after there is a speaker and that it conceives the cases falling under article 47 of the Constitution.

I venture to express the view that the powers of courts under article 99 of the Constitution cannot be ousted even if there is a speaker. To make myself clear let me give this example. Let us suppose somebody who is only 28 years old had been elected as a member to the Assembly and that he had been impeached through the speaker to satisfy article 49. The courses open to the speaker are three : either (i) to take action; (2) refer the matter to the High Court; or (3) just to wink at it. The latter course is one of the possibilities. Indeed, it could happen. Legal literature is full of acts by legislatures which had been declared unconstitutional. That the latter alternative may be followed is not beyond the horizon of likelihood. Now, this raises whether the pertinent discretion of the speaker under article 49 is absolute or otherwise. I hold the view that it is not. In the instance I quoted the act of the speaker will be repugnant to article of the Constitution. In my view article 63 of the Constitution purports to preclude the courts from interference with acts of the legislature only in matters of procedure in parliament. People can at all events come to the High Court in constitutional matters and at all times. To hold otherwise would be not only to unduly abridge the powers bestowed by the Constitution on the courts, but also it would imperil the very basis of the supremacy of the Constitution itself and render article 99 inoperative. Hence, the very footing upon which a democratic system stands will be shaken.

To sum up, it is my holding that article 46 of the Constitution conceived the qualification for nominees; that article 49 does not oust the jurisdiction of courts even in matters involving questions of qualification

for membership and that the speaker comes in the cases enumerated in article 47.

Ergo, it is my holding that applicant’s name be deleted from the roll of candidates in Constituency no. 30 Khartoum Rural Council.

Collect fees from applicant, on a relief claimed valued at £S.150.00m/ms.

Editor’s Note: The appeal to the Court of Appeal had been rejected as it was not of time. AC-REV-136-1968.