Public official-Pension payable to widow-Marriage concluded alter retirement
under section 32 of the Government Pensions Ordinance 19i9-Whether
such marriage entitles widow to pension under section 34 (I)

Statute-s-Construction-s-Liberal interpretation-s-Intention 0/ Legislature

Respondent, a Sudan Government official, was retired from the service
under the provisions of section 32 Government Pensions Ordinance 1919.
He would normally have retired in 1940 at the age of 55 years. Respond-
ent married in 1934. In 1937 he brought proceedings against the Sudan
Government claiming a declaration that his wife, if she survived him, and
the children of tbe marriage, would be entitled to be paid a pension after
his death.

Held: The marriage must have been concluded while the official was in
the service of the Sudan Government in order for a pension to be payable
to a widow or children of a deceased official under section 34 of the Gov-
ernment Pensions Ordinance 1919, even though the official was retired early
under the provisions of section 32.

Caledonian Ry, Co. v. North British Ry: Co. (1881) 6 App. Cas. 114 ap-
plied.

Appeal

December 4, 1941. Creed C.J.: In HC/CS/I07/1937 the
respondent, an ex-official of the Sudan Government, who, on being
retired in 1932 under the provisions of section 32 of the Sudan Gov-
ernment Pension Ordinance, was granted a pension, applied to the

.• Court: Creed C.J., Halford and Sandes 11.

High Court for a declaration that on his death a pension, calculated
in accordance with the provisions of that Ordinance will be payable
to his widow and his children. The respondent who would normally
have been compulsorily retired in 1'-)40 on attaining the age' of 55,
was unmarried at the time of his retirement and married in 1934.

It is superfluous for me to recapitulate all the remaining facts
which are not in dispute and are clearly set out in the judgement of
the court below. Five issues were framed, for determination of which
1, 2, 3 and 5 were decided in favour of the respondent and in the
result a decree was given in the following terms: "It is hereby
declared that on the decease of the plaintiff, Ahmed Orner, his
widow and children will be together entitled to a pension equal to
one-half of the pension he was in receipt of at the time of his death."

The Sudan Government has appealed, and in his grounds of
appeal the learned Attorney-General contests the findings of the court
on the four issues which have been decided against the Government,
but at the suggestion of this court, he has first dealt with the ~ finding
on issue 5, which was answered in the affirmative. Issue 5 (as
amended on August 4, 1940) reads as follows:

"Are the widow and children of a deceased official who
was retired under section 32 of the Pension Ordinance 1919,
and whose marriage took place subsequent to his retirement,
entitled to a pension under section 34 where tbe marriage took
place prior to the date of normal compulsory retirement?"

It is clear that not only does this. issue go to the roots of the
whole matter and to the real merits of the case, but also that it is
in the public interest that a clear decision be given by this court as
to the correctness of the learned judge's decision on this issue. More-
over, so far as this case is concerned, if it is held that the learned
judge is wrong in his determination of this issue, the respondent's
case falls to the ground in view of the decision on issue 4, a decision
which is, in the view of this court, manifestly correct and beyond
doubt, and for the reversal of which, wisely, no application has been
made to this court. Such an application would certainly have failed.

The decision of issue 5 depends on the correct interpretation
of the provisions of sub-section (1) of section 34 of the Ordinance,
which deals with the pensions payable to widows and children and
which reads as follows:

 (1) The widow or widows of a deceased official, who
at the lime of his decease was in receipt of a pension, provided
that the marriage was contracted one year at least before the
date upon which the official retired or was discharged upon
pension, and his child or children being issue of a marriage or
of marriages contracted as aforesaid, are together entitled to a
pension equal to one-half of the pension of which such official
was in receipt at the time of his decease.

"Provided further that in the case of officials retired under
section 32 the provision that the marriage must have been con-
tracted one year at least before such retirement shall not apply."

The relevant portion of the judgement of the learned judge reads

as follows:

"In my opinion the words are clear and plain, and there
is no ambiguity. The grammatical and ordinary sense of tbe
words must be given effect to, unless it will lead to some absurdity,
or some repugnancy or inconsistency with the rest of the Ordi-
nance. The proviso plainly states that a provision as to marriage
one year at least before retirement does not apply where the
official is retired, as was the plaintiff, under section 32 of the
Ordinance. Nothing that I can see in the plain grammatical
wording of the proviso makes it necessary that the marriage
should in any case have taken place before retirement. The
absence of such a provision may seem neither just nor expedient,
and I hope the omission will be remedied. But I do not think
it can be held that such is inconsistent with the Ordinance as a
whole. If the meaning is plain, and not inconsistent, it is not
within this court's province to scan its wisdom or its policy. The
meaning must be expounded as it stands, according to the real
sense of the words.

"Judged- in the light of the evidence called for the defend-
ants, it might well be that a decision against the plaintiff would
be reached. But it is a rule of evidence that aids to construction,
such as pre-existing legislation, draft stages, statements of the
objects of an Ordinance etc. are only admissible when the section
of the Ordinance it is sought to interpret is capable of ambiguity.
Here 1 do not find the words doubtful or uncertain, or capable
of being unders-tood in two or more possible senses. In my view
the section is capable on its plain and grammatical wording of

one meaning only. This in fact is not the meaning which either
party seeks to give to it. It does not limit the time within
which the marriage must take place to any time up to the age
of compulsory retirement-nor does it state, as the defendants
submit, that marriage must take place before retirement. It
enables an official retired under section 32 to marry at any time
prior to his death, and to obtain pension benefit for his wife
and the child or children of such marriage. This would seem
to place an unreasonable burden upon the Sudan Government,
but does not in my view amount to such an absurdity or In-
consistency as to entitle this court to modify the plain words of
section 34 so as to avoid the situation."

Let me state at once that I agree that in considering a statute,
in the Sudan as in England, when words admit of but one meaning,
a court is not at liberty to speculate on the intention of the legislature
and to construe them according to its own notions of what ought to
have been enacted, and that the great fundamental principle is that
"in construing statutes the grammatical and ordinary sense of the
words is to be adhered to, unless that would lead to some absurdity or
some repugnancy inconsistent with the rest of the instrument, in which
cases the grammatical and ordinary sense of the words may be modi-
fied so as to avoid that absurdity and inconsistency, but no further."
As has been well stated, "when the language is not only plain, but
admits of but one meaning, the task of interpretation can hardly be
said to arise," but "the foregoing elementary rule of construction does
not carry the interpreter far, for it is confined to cases where the
language is precise and capable of but one construction, or where
neither the history nor the cause of the enactment nor the context nor
tbe consequences to which the literal interpretation would lead, show
that that interpretation does not express the real intention." "Words,
if sufficiently flexible, must be construed in the sense which, if less
correct grammatically, is more in harmony with intention. The literal
construction then has in general but prima facie preference."

The learned Attorney-General, if I understand him aright, stresses
in particular the following points:

( 1) The initial phrase of the section 'The widow or widows of
a deceased official, who at the time of his decease was in receipt of
a pension," is unsatisfactory because the person described as an "offi-
. cial" is not, if in receipt of a pension, "in the service of the Govern-

ment" (section 2), and he urges that, alternatively to interpreting the
word "official" as including pensioners. it is possible to interpret the
whole phrase as meaning "the wife or wives of an official in the service
of the Government who has since his retirement died' and who was in
receipt of a pension at the time of his decease," and that it is clear
that a woman who marries a man who is no longer in Government
service cannot on his death be correctly described as the widow of
an official, because she was not married to him while in the service
of the Government. He urges that the phrasing is so obviously in-
capable of absolutely literal construction that it is open to the court
to put on the phrase that interpretation which best accords with the
purposes of the Ordinance, which are to make provision for post-
service benefits for officials and for the families of deceased officials,
that is (he submits) for women who were. married to the official
during his service in the Government and children who are the issue
of such a marriage.

(2) The whole purpose of the first proviso is to prevent officials
getting married at the last moment before retirement, and so giving
a right to pension to their widows. There must be a minimum as-
sociation of the widow with the official's service. There is in fact
a provision (i) that the widow must have been married to the official
before retirement, (ii) that the period of service during which the
marriage was subsisting must have been "one year at least." The
wording of the second proviso is to be especially noted. Why is this
particular phrasing adopted when other simpler words could have
effected the intention of the legislature, were the respondent's con-
tention correct? The words "one year at least" are entirely otiose.

In reply to these points, it is urged by the respondent's advocate
( I) that it is clear that the word "official" must, in view of line 2 of
section 34, be interpreted as including "pensioner," whatever the
definition in section 2 (which is not exclusive) may say, and that the
interpretation sought to be put on the words by the Attorney-General
is far-fetched in the extreme, (2) that the suggestion that the in-
elusion of the words "one year at least" in the second proviso seeks
to lay all the emphasis on the element of time is not correct, the plain
meaning of the words being that the first proviso is to be deleted in
the case of officials retired under section 32, who, in view of the Iact :
that their services are dispensed with to suit their employer's con-
venience, are rightly given a special post-service benefit for their
families.

Now it seems to me that although the first point raised by the
learned Attorney-General is worthy of consideration, the phrasing
being, even on the respondent's advocate's showing. so unsatisfactory
that it is impossible to give it an exact literal interpretation, his second
point is of very great weight. May I quote an example for which
I am indebted to the learned Attorney-General? Take the phrase:

"Grounds of appeal must be submitted at least ten days before the
hearing, provided that, in the case of appeals from decrees given in
suits brought upon promissory notes, the rule that grounds must be
submitted at least ten days before the bearing shall not apply." Is
this capable of two interpretations? The literal 'and grammatical in-
terpretation may be that grounds need not be submitted before hear-
ing, but not only the man in the street but judges would probably in
practice interpret tbe phrase to mean that, although grounds must be
submitted before hearing, it is unnecessary to submit-them so long as
ten days before the hearing. Were such a rule to be made, and were
it urged by an advocate that it meant that no grounds were to be
submitted in these particular cases, I suspect that the wrath of an
appellate court, on finding that no grounds had been submitted be-
fore hearing, would descend in part on the draftsman of the rule, but
in the main on the unfortunate advocate for an unreasonable inter-
pretation of an ambiguous phrase.

The second proviso to section 34, in my view, admits of two
interpretations, but it seems to me that the reason for the inclusion
of the words "at least one year," when tbe words might well have
been omitted on the respondent's interpretation, is plain. It em-
phasises the clement of time, and it is intended to negative the rule
that the period of the service during which the official is married must
have been one year at least, not to negative the rule that the wife
claiming a pension must have been married to the official during his
service.

The phrase having been held ambiguous, it remains for us to
turn to the intention of the Legislature. I find it impossible to believe
that the Legislature intended, in defiance of all accepted practice in
pension legislation. to provide a pension for a widow who had no
connection whatever with the official's service. Is it reasonable to
suppose that the Legislature intended to create a situation in which
it would be possible for a pensioner aged 80 to marry on his death
bed a girl of 17 in order to provide her with a pension for the rest of
her life? The suggestion is absurd. Moreover, section 33, which

deals with more important rights, gives no special privileges to officials
who are retired under section 32 as compared with those granted to
officials retired on grounds of ill health. I am not therefore greatly im-
pressed by the argument of the respondent's advocate that it is reason-
able to suppose that the Legislature intended to grant a pension to
certain widows of pensioners who have been retired under section 32,
which it was not prepared to grant in similar circumstances to widows
of pensioners who had been retired on grounds of ill health .

So much for the Ordinance itself without preference to any ex-

ternal sources. But as I have said, there is, in my view, an ambiguity
in the section and in this case not only arc we entitled to look at other
parts of the Ordinance itself for guidance, but the intention of the
Legislature may be proved from external sources." It is admitted-
indeed it cannot be denied-that whatever the phrasing adopted by
the Legislature, it was in fact the intention of the Legislature that wid-
ows married to ex-officials after retirement should not in any circum-
stances receive pensions. It was the intention of the Legislature that,
in order that a widow should qualify for a pension, she must be asso-
ciated through marriage with the Government service of her late hus- band.                                                               

The finding of the learned judge on this issue is therefore re-
versed and judgement will be entered for the defendants and appel-
Jants.

It is unnecessary for this court having disposed of the appeal by a
reversal of the decision on this issue to deal with the other issues de-
termined in the court below and it expresses no opinion as to the cor-
rectness of those findings.

Sandes J.: I concur.

Halford J.: Argument has been restricted to the sole issue on the
merits as to whether the widow and children of a deceased Govern-
ment pensioner, who was retired compulsorily under section 32 and
married after retirement, are entitled to the benefits granted them by
the 1919 Pension Ordinance. As I know the learned President is
dealing exhaustively with the impressive arguments with which we have
been edified, I propose to enunciate briefly what in my view constitutes
the principal objection to the respondent's casco

111e court below has refused to go bey ond what it maintains is the
plain meaning of the words of the second proviso to section 34 (1) of

the Ordinance-with which T deal later-and decided that the pen-
sioner retired under section 32 is at liberty to marry when he pleases
for his family to benefit after his death, although this might lead to an
absurdity and possibly to an abuse. It has been argued on behalf of
the respondent that, so long as there is no patent inconsistency in the
wording of the text, the intention of the Legislature, expressed or im-
plied in the rest of the Ordinance, must not be considered.

The leading authority on this interesting point is Caledonian Ry
Co. vs. North British Ry Co. (1881) App. Cas. 114. From this
case, although the Law Lords were not in agreement in toto, I am
convinced that it is clear law in Great Britain-and therefore in the
Sudan, as this is the source of our jurisprudence-that however un-
ambiguous the literal text of a statute may be, if such llteral meaning
conflicts at all with the intention of the statute as a whole, it will not
be adopted by a court called upon to interpret it. I therefore confine
this judgement to an analytical examination of the intention of our Leg-
islature as to the period of time for marriage allowed by the 1919 Or-
dinance to the official, within which to secure its benefits to his widow
and children.

Persons in. Government service retire. normally on reaching the
age limit, or prematurely in the case of ill health, disablement, and on
abolition of appointment, and their services being dispensed with under
section 32. It is expressly provided by section 34 (1) of the Ordi-
nance that, for the benefit of the pension to accrue to the widow and
children, the marriage must have been contracted within one year at
least before the date on which the official (1) retired or (2) was dis-
charged upon pension, with a further proviso that tbe first proviso shall
not apply to officials retired under section 32. Now (1) above clearly
covers all cases of normal retirement, and (2) must refer to officials
retired on account of ill health, where in section 29 the term "dis-
charged" is specifically employed. Widows and children of an official
killed in the course of his employment are expressly provided for. No
mention whatsoever is made of the pension benefits accruing to the
widow and children of an official prematurely retired through perma-
nent disablement, arising out of an accident through no fault of his
own, and it follows by implication that, unless he married a year at
least before such premature retirement, his widow and children would
have no claim. This to my mind constitutes the clearest insistence-
as clear as if expressed in so many words-i-on the condition sine qua
non that marriage must precede retirement. I can conceive of no