Court Refuse To Reinstate Soldier

By Dickson Jere

He was described as of bad conduct with a lot of disciplinary cases. He was, therefore, fired from Zambia Air Force (ZAF) in 1999. The ZAF officer pleaded for mercy via several letters and the President of Zambia decided to rescind the decision by reversing the dismissal and instead replaced it with retirement.

The ZAF Lieutenant was still unhappy as he was only entitled to six months salary as his package under the Defence (Regular Force) Regulations. He still wanted more, including monthly emoluments for the period he was out of employment.

Unsatisfied, he sued government in 2002 demanding to be reinstated in the regular force of ZAF and thereafter retired with full benefits. He argued that his dismissal was unlawful.

The High Court refused to grant him the order of reinstatement or monthly emoluments, and he, therefore, decided to climb the judicial ladder and lodged an appeal in the Court of Appeal.

He wanted to be reinstated and given an appropriate rank and then retired with full benefits thereafter.

The three-member panel of Judges delivered the verdict last month and agreed with the High Court that he cannot be reinstated especially given his bad conduct.

“We do not see any reason that would justify the reinstatement of the appellant (soldier) to ZAF Regular Force,” the Judges ruled.

“In fact, going by the history of the appellant when he served in the Air Force, his supervisors were magnanimous when they rescinded his dismissal and reversed it to retirement…” the Court held.

The Court of Appeal agreed that the six months salary in lieu of notice that was awarded by High Court in favour of the soldier was correct.

“Consequently, we are of the view that although the appellant was not paid six months’ salary in lieu of notice as required by (law), this did not make his retirement unlawful,” the three Judges noted.

On his plea to be paid salaries for the period he was out of employment, the Court refused to give that relief because it would amount to unjust enrichment.

“We note that the appellant was out of employment from 31st August, 1999, but we take the view that he is not entitled to be paid monthly emoluments for a period that he is not provide a service,” the Court held.

For case citation – David Mooto Sikananu v Attorney General (Appeal No. 222/2020) and Judgment delivered on 29th March, 2023.

What is of great significance is that the case was commenced in 2002 and only concluded in 2023. Over twenty years!

Note that this is not legal opinion on the subject matter but a summary for intellectual discourse and discussions. Seek legal advice from your lawyer if need any further information on this subject.

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