The Minister of Finance v The Jamaica Constabulary Force, The Attorney-General of Jamaica and Bennett
| Jurisdiction | Jamaica |
| Judge | Mcdonald-Bishop JA,P Williams JA,Straw JA |
| Judgment Date | 09 March 2018 |
| Neutral Citation | JM 2018 CA 24 |
| Court | Court of Appeal (Jamaica) |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 10/2016 |
| Date | 09 March 2018 |
[2018] JMCA Civ 9
IN THE COURT OF APPEAL
THE HON Mrs Justice Mcdonald-Bishop JA
THE HON Miss Justice P Williams JA
THE HON Miss Justice Straw JA (AG)
SUPREME COURT CIVIL APPEAL NO 10/2016
and
and
Ms Carla Thomas instructed by the Director of State Proceedings for the appellants
Oraine Nelson instructed by Forsythe & Forsythe for the respondent
Statute - Interpretation — Constabulary Force Act, s. 62 — Whether, in importing meaning of “widow” and “widower”, trial judge erred in importing meanings used in other legislation — Literal meaning rule — Whether Governor General was the sole authority with discretion to grant a pension under the Constabulary Force Act, s. 62.
I have read in draft the reasons for judgment of my sister Straw JA (Ag). Her reasons fully accord with my views. I endorse them, and there is nothing I could usefully add.
I too have read in draft the reasons for judgment of my sister Straw JA (Ag). I agree with her reasoning and conclusion and I have nothing further to add.
Straw JA (AG)
This is an appeal from the judgment of Campbell J, delivered in the Supreme Court on 11 December 2015 where he made a declaration that the respondent, Winsome Bennett (“Miss Bennett”) was lawfully eligible for a widow's pension as the declared spouse of the late Mr Carlton Roy Campbell, a member of the Jamaica Constabulary Force. By this declaration, the appellants were directed to pay to Miss Bennett the widow's benefit/pension and other allowances payable on death, as it related to Mr Campbell's service as a member of the Jamaica Constabulary Force.
On 10 October 2017 we heard the appeal and, following the submissions of counsel, made the following orders:
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“1. The appeal is allowed.
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2. The judgment of Campbell J, dated 11 th December 2015 in favour of the respondent, including the order for costs, is set aside.
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3. No order as to costs in this court.”
We promised then to reduce the reasons for our decision in writing. These are my reasons for concurring in the decisions of the court.
Mr Campbell, an Inspector of the Jamaica Constabulary Force, stationed at the Port Maria Police Station in the parish of Saint Mary, died of natural causes on 22 September 2008. At the time of his death, Mr Campbell shared a common law union with Miss Bennett for a period in excess of five years. Miss Bennett and Mr Campbell were unmarried and had one child together who was born in 1973.
On 1 October 2009, an order was made by the Supreme Court declaring Miss Bennett to be the common law and sole surviving spouse of Mr Campbell within the meaning of the Intestates’ Estates and Property Charges Act. Consequent upon that declaration, Miss Bennett, through her attorneys-at-law, wrote to the 1 st appellant (“the Minister of Finance”), on 7 December 2009 enquiring whether there were any “gratuities or pension which [was] payable to the estate of the decease [sic]”. Miss Bennett was refused the payment of death benefits, as Ms Paula Tyndale for the Minister of Finance deponed in her affidavit sworn to on 20 November 2012 that, “she did not qualify for such payments, as she was not legally married to the deceased and was not his ‘widow’ or ‘surviving spouse’, within the meaning of section 62 of the Constabulary Force Act”. Accordingly, the Minister of Finance decided to pay a pension to Mr Campbell's son, Rory Campbell, and a gratuity to the legal personal representative of his estate.
By fixed date claim form filed on 27 January 2012, Miss Bennett sought to challenge the decision of the Minister of Finance seeking, in particular, the following reliefs:
“1. A declaration that as the declared spouse of the late CARLTON ROY CAMPBELL who was a member of the Jamaica Constabulary Force, that she is lawfully eligible for a widow's pension.
2. A declaration that by virtue of an Order dated October 1, 2009 made in this Honourable Court that she is lawfully entitled to claim and obtain the widow's benefit/pension and the other allowances payable on death as it relates to the service of the late CARLTON ROY CAMPBELL as a member of the Jamaica Constabulary Force.
3. An Order directing the First Defendant, THE MINISTER OF FINANCE and the Second Defendant THE JAMAICA CONSTABULARY FORCE to pay to the Claimant the widow's benefit/pension and the other allowances payable on death as it relates to the service of the late CARLTON ROY CAMPBELL as a member of the Jamaica Constabulary Force.” (Emphasis as in the original)
In opposing the claim, the appellants in the affidavit of Ms Paula Tyndale deponed at paragraph 14 that:
“[T]he Ministry of Finance and Planning has not paid any death benefits to Miss Winsome Bennett as it continues to hold the legal view that a “surviving spouse” within the meaning of section 62 of the Constabulary Force Act is one who was legally married to the deceased at the time of the latter's death. Miss Winsome Bennett was not legally married to the deceased and therefore does not qualify for death benefits pursuant to section 62 of the Constabulary Force Act.”
In determining whether the definition of “surviving spouse”, in sections 61(2)(b) and 62 of the Constabulary Force Act (“the Act”) prohibited Miss Bennett receiving a grant of pension or death benefits, the learned judge considered provisions from other statutes as well as the ordinary dictionary meaning of the words “widow” and “spouse”. Having done so, on 11 December 2015, the learned judge found in Miss Bennett's favour and upheld her claim against the appellants.
In concluding as he did, the learned judge at paragraph [20] of his judgment stated that:
“I cannot agree with the [appellants'] submission that the ordinary dictionary meaning of the words “widow” or” widower” is the relevant meaning that should be attached to these words. The case law is supportive of the view that the question whether or not the words “widow or widower” or “spouse” meant a person who was married, was to be answered on the understanding of the ordinary man using the words in their popular sense at the time of the death of Inspector Campbell. (See; Dyson Holding Ltd. v Fox [1976] Q.B. 503).” (Emphasis as in the original)
The learned judge found that in construing the meaning of the words “widow”, “widower” and “spouse” within the meaning of the Act, the court was required to take a more purposive approach to the interpretation of the words rather than the ordinary meaning. The learned judge concluded that the ordinary meaning of the word ought to be determined by the understanding of the “ordinary man using the word in its popular sense” and in doing so he found that in Jamaica, the ordinary meaning may not necessarily accord with the meaning within the English dictionary and further, that the meaning of the word was susceptible to change in keeping with the social reality. In concluding that it would be inconsistent with social justice to prevent an unmarried spouse of a common law union from accessing the benefits, pursuant to the Act, the learned judge reasoned thus:
“[25] It is clear that, the meaning of the word “spouse”, has been altered and modified by several Acts of Parliament which have brought about the “fundamental and salutary changes” in society as observed by Cooke JA in Brown v Brown. Cooke JA, pointed out that a change in the meaning of the words “widower” and “widow” had come about in that by section (2(1) of the Property (Rights of Spouses) Act, a widow, widower or divorcee as the case may be, who has cohabited with a single man or woman, or indeed with another widow, widower or divorcee, as the case may be, for the requisite period, will also qualify as a spouse. So the definition of “spouse”, may include a married or an unmarried person for the purposes of the [sic] establishing property rights of spouses. The ordinary meaning of a word is to be determined by the understanding of the ordinary man using the word in its popular sense. The popular sense of the word in Jamaica may not necessarily be consistent with the meaning in an English dictionary. Moreover, the meaning of the word is susceptible to change in keeping with the social reality.
[26] The role of the Court in construing Section 62 of the Constabulary Force Act is to work for, and not against, the rights conferred on parties in common law unions by Parliament in the various statutory provisions. That right was conferred upon parties in a common law union, of at least five (5) years. The essence of those rights was to ensure that persons in a defined common law relationship is [sic] not disqualified or is placed at a disadvantage by not having been constituted in wedlock.
[27] Section 62 of the Constabulary Force Act, was enacted in 1985, with retrospective effect to the 1 st July 1974, to provide pension benefits to surviving spouses, child or children, legal representative of constables who had died in the Force. It is for a limited class of persons. This amendment came nine (9) years, after the Status of Children Act, 1976, which ensured that children born out of wedlock enjoyed the same rights as children born in wedlock. Since the passage of Section 62 of the Constabulary Force Act, the Property (Rights of Spouses) Act, has made, 11 fundamental and salutary changes to entitlement to property, particularly for those couples in defined common law unions. It is against these legislative changes and the consequential social adjustments, that the meaning of the words in Section 62 of the Constabulary Force Act, come to be construed.
[28] There is no definition of “widow and widower”, in the Constabulary Force Act, therefore counsel relied on the dictionary...
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