Supreme Court
Action No. 132 of 1982
28th July, 1982
Alcantara, J., O.B.E.,

Mr. B.Q.A. Pitts for the Plaintiff
Mr. G. Brown for the Attorney General/Defendant

Declaration - Construction of a Commission made by the Governor - Whether by virtue of Commission Plaintiff an employee of Belize Defence Force - Whether Plaintiff entitled to pension and retirement benefits under Defence (Retired Pay, Pension and Other Grants) Regulations 1981 - Sections 11(3), 13 and 14 of Defence Force Ordinance - Governor had powers to retire by virtue of Ordinance - Application dismissed.

J U D G M E N T

The Plaintiff is asking this Court to make the following declarations: -

(1) that upon the true construction of a commission dated the 30th day of January 1978 made by PETER DONOVAN McENTEE, C.M.G., O.B.E., GOVERNOR the Plaintiff was employed by the BELIZE DEFENCE FORCE for a fixed period of six years;

(2) THAT BY VIRTUE OF SAID COMMISSION the Plaintiff became entitled upon being retired from the BELIZE DEFENCE FORCE before the expiration of the said six years due to no fault of his to pension and retirement benefits under the DEFENCE (RETIRED PAY, PENSION AND OTHER GRANTS) REGULATIONS 1981 calculated on the basis of six years of service.

The plaintiff, Mr. Oswald Tillett, in 1977 was a police officer and second in command of the Police Special Force. He was 39 years of age and had been in the Police Force for 17 years. According to him he was the youngest Assistant Superintendent in the Force with very good prospects of promotion and with the probability of ending his career as Commissioner. He, however, took a decision, which he now apparently regrets, of joining the Belize Defence Force which was about to be formed.

Either as the result of an approach to him or enquiries by him, the plaintiff received an offer in a letter dated 1st December 1977 addressed to him and signed by Lt. Col. B.W. Ayres, Commander:

"I have the honour to inform you that your application for a commission in the Regular element of the Belize Defence Force has been considered by a provisional committee, formed to deal with such matters before the Defence Ordinance becomes law, under the chairmanship of the Permanent Secretary Ministry of Home Affairs and Health. When considering your application, the committee were guided by the terms and conditions of service as set out in my letter 1008 of 21 October 1977. I have been asked to communicate the committee's decision to you. The details are given below:

1. Rank to be allocated:           Captain
2. Seniority Date:                    1 November 1975
3. Ante Date:                          1 November 1969
4. Pay on joining: B$6,205 plus B$1,095 Ration Allowance if living out or free rations if living in.
5. Length of engagement: 6 years or until you reach your 42nd birthday (whichever is the earlier) initially.
6. Your attention is drawn to my letter quoted above with regard to future promotion prospects and pay scales.

   I am asked to state that the details given above are provisional but will be confirmed by the Defence Commission once it is legally constituted. Final approval for commissions in the Belize Defence Force will be given by HE The Governor upon recommendation of the Defence Commission.

   Please now confirm that you wish to join the Belize Defence Force. You will shortly be asked to undergo a medical examination and subject to this you will be called forward to join for duty in January/February 1978. If there is any further matter upon which you require clarification please come and discuss it with me, or write to me."

Following this letter the plaintiff says he had an interview with Lt. Col. Ayres where the offer of a Commission for six years was confirmed. On the 2nd January, 1978 he undertook his duties as an officer of the Belize Defence Force, and at the end of that month he received his Commission. I set it out in full:

"I, Peter Donovan McEntee C.M.G., O.B.E. Governor of Belize acting under command of Her Majesty Queen Elizabeth the Second do give to

Oswald Gillett

Greetings and reposing especial trust in your loyalty, courage and good conduct, do by these presents constitute and appoint you to be an officer in the Regular Force of the Belize Defence Force for six years from the 1st day of January 1978.

You are therefore carefully and diligently to discharge your duty as such an officer in the rank of

Captain

or in such other rank as you may from time to time hereafter be promoted or appointed and you are in such manner and on such occasions to exercise and well discipline in their duties, such officers and soldiers as may be placed under your orders from time to time and use your best endeavours to keep them in good order and discipline. I do hereby command all such officers and soldiers to obey you as their superior officer and you to observe and follow such orders and directions as form time to time you shall receive from me or any of you superior officers in pursuance of the trust hereby reposed in you.

Given at Belize House, Belmopan this 30th day of January 1978.

SIGNED:

P.D. McEntee

Governor."

The Commission follows the form in the First Schedule to the Defence Force Ordinance. There is no doubt that the Commission was issued by the Governor pursuant to the powers conferred on him by the said Ordinance. Similarly the applicant in accepting the Commission was bound by the provisions of the said Ordinance. Part III of the said Ordinance deals with Officers. Section 11(3) empowers the Governors to grant a Commission for an indefinite period or for a specified time, and Section 13 reads as follows:

"13 (1) The Governor may in his absolute discretion permit an officer of the Force to resign his commission.

(2) The Governor may in his absolute discretion, after consultation with the Defence Commission, terminate the commission of an officer of the Force for inefficiency or for any other cause."

Section 14 grants the Governor power to make regulations generally to carry out the provisions of Part III and in particular for the retirement of officers.

On the 18 March 1981 the plaintiff received the following letter from his commanding officer:

"It is with sincere regret that I have been directed to inform you that it is the Government's unequivocable policy that officers will be required to retire on their due date in accordance with Section 10(1) of the Defence (Officer) Regulations 1978.

Accordingly I hereby give you notice that with effect from your 42nd birthday which falls on 19 August 1981, you will be required to retire from active duty with the Belize Defence Force.

You will now wish to consider plans for your future and I wish you to be assured that if there is anything I can do to help you in this direction I will be more than delighted to do so.

Whilst you depart the ranks of the Regular Force, I sincerely trust you will consider continuing your commitment to the Belize Defence Force by accepting a commission with the Reserve and thereby retaining you link with the Force."

Regulation 10 of the Defence (Officer) Regulations, 1978 is specific: "An officer of the regular force shall retire on attaining the age limited appropriate to his rank that is to say: lieutenant-colonel at the age of 45, major and below at the age of 42."

What the plaintiff is contending is that this Regulation does not apply to him as it came into operation after he had been commissioned. The Regulations came into force on the 4th February, 1978. This is important to the plaintiff on account of his entitlement to a pension pursuant to the Defence (Retired Pay, Pensions and Other Grants) Regulations, 1981, which came into operation on the 21st February, 1981. These latter Regulations also came into force after the plaintiff was commissioned, but the plaintiff is saying that the 1981 Regulations have to be given a retrospective effect as they are for his benefit. I agree with him on this point. Counsel for the Attorney-General does not contend to the contrary.

The Plaintiff's case is that he was granted a Commission for six years, period. He should be allowed either to serve that period or given credit for pension purposes for the whole of the six years. He argues that the Crown could not shorten his period of service.

Counsel for the plaintiff has referred me to the following authorities:

East Coast Amusement Co. Ltd. v British Transport Corporation (1965) A.C. 58

In re Athlumney, Ex part Wilson (1898) 2 Q.B. 547
Carson v Carson & Stoyek (1964) 1 W.L.R. 511

Colonial Sugar Refinery Co. Ltd. v Irving (1905) 369

R v Deery (1977) C.L.R. 550

I.R.C. v Dowdall & O'Mahoney Co. Ltd. (1952) A.C. 401,

for the proposition that unless the Legislature expressly or by clear implication makes a provision of the law retrospective, it will not be retrospective so as to interfere with rights that have accrued prior to the passing of the legislation.

I agree with the above proposition, particularly with what Mr. Justice Wright said in the case of in re Athlumney (supra) at p.552:

"Perhaps no rule of construction is more firmly established than this, that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only."

The case of R v Oliver (1944) 1 K.B. 68 in which the above quotation is followed and approved, is authority for the proposition that if the language is plainly retrospective it must be so interpreted. See Maxwell on Interpretations of Statutes, 11th Edition at p.205.

Counsel has also referred me to two cases on the law of contract. For the sake of completeness I shall refer to them but they do not assist me in this case and I do not intend to distinguish them, as they have no applicability. They are:

Southern Foundries (1976) Ltd. v Sherlaw (1940) A.C. 701

and

Shindler v Northern Raincoat Co. Ltd. (1960) I W.L.R. 1042.

On the proper construction of the Defence Force Ordinance, particularly Sections 13 and 14, I am satisfied that the subsidiary legislation dealing with retirement was intended to have retrospective effect. It would be doing violence to the wording of S. 13(2) to hold otherwise, particularly when the Governor was empowered to retire an officer "for inefficiency or any other cause". I hold that retiring an officer for military overage is "any other cause". Even without holding that Section 10 of the Defence (Officer) Regulations, 1978 had retrospective effect, it is obvious that the Governor had powers without the existence of the said Regulations to bring about a retirement by virtue of Section 13(2) of the Ordinance. I, however, hold that Regulation 10 of the Defence (Officer) Regulations, 1978 had retrospective effect and applies to the applicant as if they had come into force at the same time as the Ordinance.

I therefore dismiss the application and refuse the declarations sought. I am fortified in my decision by two further reasons. First, the plaintiff had notice that this was likely to happen. The letter of the 1st December, 1977 gave him notice that his length of service was for "6 years or until you reach your 42nd birthday (whichever is the earlier) initially." Secondly, by the common law doctrine that a servant of the Crown is dismissible at pleasure, even if he were engaged for a definite period that has not yet expired. I am grateful to the Solicitor General for bringing to my attention the cases of:

Riordan v War Office (1959) 1 W.L.R. 1047.

Attorney-General for Guyana v Nobrega (1969) 2 A.E.R. 1604 where the common law principle is approved and explained. There is no doubt that the said principle is applicable to this servant of the Crown, the applicant, even without the existence of s. 13 (2) of the Ordinance of the Defence (Officer) Regulations. In their absence the applicant could have been retired prematurely on the strength of those two authorities. There is no need to elaborate this aspect of the law as I have found that the Defence (Officer) Regulations have retrospective effect insofar as Regulation 10 is concerned.

Application dismissed with costs.

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