IN THE HIGH COURT FOR ZAMBIA 2009/HP/0168
AT THE PRINCIPAL REGISTRY
CEDRIC MUTEMWA IMASIKU PLAINTIFF
THE ATTORNEY GENERAL 1st DEFENDANT
PUBLIC SERVICE PENSIONS FUND BOARD 2nd DEFENDANT
Before the Hon. Mr. Justice Justin Chashi in Open Court on the 19th day of March, 2013.
For the Plaintiff: In Person
For the 1st Defendant: M. Ndhlovu (Mrs) - Assistant Senior State Advocate.
For the 2nd Defendant: E M Kapuka (Mrs) - Senior Legal Officer.
Cases referred to:
1. Bank of Zambia v Kasonde (1995-97) ZR 238
2. William Masowe Mulemba v Attorney General – 2005/HP/0732
3. Contract Haulage Limited and Mumbuwa Kamayoyo (1982) ZR 13.
4. Kang’ombe v The Attorney General (1972) ZR 177
5. Jeremiah R Mbawa v The Attorney General - SCZ Judgement No.97 of 1995
6. Wilson Masauso Zulu v Avondale Housing Project Limited (1982) ZR 172.
7. Kitwe City Council v William Ng’uni (2005) ZR 57
8. Zambia Railways Limited v Oswell Joseph - SCZ Judgement No.2 of 1995.
Legislation referred to:
9. The Defence Act, Chapter 106 of the Laws of Zambia
10.The Public Service Pensions Act, Chapter 260 of the Laws of Zambia
11.The General Orders.
The Plaintiff namely Cedric Mutemwa Imasiku, commenced proceedings herein by way of a Writ of Summons on the 5th day of February 2009 against the Attorney General and the Public Service Pensions Board, the 1st and 2nd Defendant respectively.
On the 10th day of December 2010, the Plaintiff filed an Amended Writ of Summons together with an Amended Statement of Claim which shall forthwith be referred to as the Writ of Summons and the Statement of Claim.
According to the endorsement on the Writ of Summons, the Plaintiff is claiming the following reliefs:
1. As against the 1st Defendant, damages for breach of Contract between the Plaintiff and the 1st Defendants and wrongful retirement of the Plaintiff by the 1st Defendant and as against the 2nd Defendant for the amount due by the 2nd Defendant to the Plaintiff for wrongful calculation of the Plaintiff’s retirement benefits by the 2nd Defendant particulars of which appear in the Statement of Claim.
2. The sum of K990,880,070.60.
3. Damages for the loss of increment of salary and allowances from 1st December 2005 to 31st June 2015.
4. An Order of reinstatement of the Plaintiff in his position with all the rights and benefits.
5. Damages for unlawful or wrongful termination of employment with the 1st Defendant.
6. Costs and interest.
7. Further or other relief deemed fit.
In the Statement of Claim, the Plaintiff avers that he was at all material times prior to his retirement on the 30th day of November 2005 a Warrant Officer Class 1 in the Zambia Air Force and a Civil Servant in the employ of the Government of the Republic of Zambia having joined and attested as a recruit on or about the 1st day of October 1982. That he rose through the ranks and was on the 1st day of November 2003 promoted to the rank of Warrant Officer Class 1.
The Plaintiff further averred that as a Warrant Officer Class 1, his employment could only be terminated by the President of the Republic of Zambia. Further that the Plaintiffs conditions of employment were governed by the provisions of The Defence Act9 as read with The Public Service Pensions Act10.
The Plaintiff further avers that under the terms and conditions of his employment, he was due for retirement upon attaining the Statutory retirement age of 55 years or in the alternative he could voluntarily retire upon giving notice to the 1st Defendant of his intention to do so or upon attaining the age of 45 years or upon completing 20 years of service.
According to the Plaintiff, his retirement upon attaining the age of 45 years or upon the completion of 20 years of service was required to be in strict consultation with the 2nd Defendant in accordance with Section 33 of The Public Service Pensions Act10.
The Plaintiff further avers that in breach of his terms and conditions of employment and also without any notice from the Plaintiff to the 1st Defendant of his intention to retire from employment and without any letter of termination from the President of Zambia, the Plaintiff was allegedly retired at the age of 45 years and paid retirement benefits under Section 41 instead of Section 39 (2) (b) of The Public Service Pensions Act10.
That at the time of his retirement, the Plaintiff was being paid remuneration and allowances comprising the following:
(ii) Trade pay
(iii) Rural hardship allowance at 20% of basic pay
(iv) Responsibility allowance at 10% of basic pay
(v) Leave days at 3½days per month.
(vi) Uniform upkeep allowance
(vii) 2 bags of mealie meal per month.
(viii) Domestic fuel allowance
(ix) Batman allowance
(x) Free electricity
(xi) Free housing and
(xii) Free water.
The Plaintiff in the Statement of Claim further asserts that his services having been terminated in the aforestated manner before attaining the Statutory retirement age of 55 years as is required under Section 41 of The Public Service Pensions Act10 and also the Plaintiff not having given notice of his intention to retire under Regulation 9 (3) (b) of The Defence Force (Regular Force) (Enlistment and Services) Regulations of The Defence Act9, the Plaintiffs retirement was in national interest and his retirement benefits ought to have been paid under Section 39 (2) (b) instead of Section 41 of The Public Service Pensions Act10.
It is the Plaintiffs averment that as a consequence of the 1st Defendants action, the Plaintiff has lost the remuneration and all the benefits he would have earned and enjoyed if he had been retired upon his attainment of the age of 55 years and as a result he has suffered loss and damages.
The Plaintiff in the Statement of Claim went on to tabulate the under payment, loss suffered and damages.
The 1st Defendant settled its Defence on the 8th day of September 2011 in which they averred that the Plaintiff was enlisted as a recruit in the regular Zambia Air Force on the 1st day of October 1982 and denied that Warrant Officer of Class 1’s status can only have their employment terminated by the President of the Republic of Zambia.
The 1st Defendant averred that the terms and conditions under which the Plaintiff served are covered under the Defence Act9.
According to the 1st Defendant the Plaintiff’s services were terminated on 30th November 2005 in accordance with the Defence Force (Regular Force) (Enlistment and Service) Regulations, Regulation 9 (3) of The Defence Act9, in particular the Third Schedule, serial number (XVIII) - that his services being no longer required and was paid three months salary (cash) in lieu of notice.
The 1st Defendant admitted that at the time of the Plaintiffs retirement his rank entitled him to accrue vocational leave days at a rate of 3½days per month. That in accordance with Zambia Air Force Administrative Instruction APZ 1107, Administrative Instruction No. 18, Officers and Warrant Officers in the Service of the Zambia Air Force earn and accrue vocational leave monthly and annually at the rates of three and half days per month, 42 days per annum up to a maximum of 230 days.
It is the 1st Defendants averement that the Plaintiff was duly paid his terminal benefits in accordance with the provisions of the law which included his repatriation allowance, last pay certificate (LPC) and three months salary (cash) in lieu of notice.
According to the 1st Defendant, the Plaintiff was not wrongfully discharged from the Regular Zambia Air Force. That the discharge was in accordance with the terms and conditions of employment obtaining under The Defence Act9 which governed the Plaintiffs employment in the Zambia Air Force.
Further that the Plaintiff never suffered any detriment in his retirement benefits as the formula for computation of his terminal benefits is the same as that used by the 2nd Defendant.
The 2nd Defendant settled its Defence on the 26th day of January 2011 in which they admitted that the statutory retirement age is 55 years. They however averred that there are other legal modes of retirement stipulated in both The Defence Act9 and The Public Service Pensions Act10.
According to the 2nd Defendant, the, Plaintiff was not retired in the national interest and therefore could not have been paid under Section 39 (2) (b) of The Public Service Pensions Act10. That the Plaintiff was retired in accordance with the Defence Force (Regular Force) (Enlistment and Service) Regulations, Regulation 9 (3) of The Defence Act9, - Third Schedule, Serial No. XVIII and benefits computed in accordance with the authority from the employer, and was therefore not underpaid.
At the hearing of the matter, the Plaintiff gave evidence and called one witness.
It was the Plaintiff’s testimony that he joined Zambia Air Force on the 1st day of October 1982 and rose through the ranks to the rank of Warrant Officer Class 1 on the 1st day of November 2003.
That on the 14th day of November 2005 when he reported for work, his Station Commander at Mumbwa, went to his office and ordered him to follow him to his Office, where he asked him how old he was. Upon telling him that he was 45 years, he asked him if he had ever appeared before a Medical Board, to which he replied in the negative. PW1 was further asked if he had ever appeared before a Court Martial, which he denied.
The Station Commander further asked the Plaintiff if he had applied for retirement, which he also refused. The Plaintiff testified that the Station Commander then gave him a signal message pad from Zambia Air Force Headquarters.
The Plaintiff, identified his service number from the list on the pad.
According to the Plaintiff, he read the message which stated that he was being retired. The date of retirement was given as the 30th day of December 2005 and at the bottom of the message, it said, the letter of retirement was in the post.
The Plaintiff further testified that when he asked the Station Commander why he was being retired, the answer was that he was not aware of the reason. PW1 was then requested to hand over the Military Uniforms and duties by the 30th day of November 2005 which he did and stopped going for work.
On the 1st day of December 2005, he went to the Station Commander’s Office to ask for the letter of retirement and was advised to keep on waiting for it as he did not have it. The Plaintiff later made a follow up in the last week of December 2005, to no avail. That on the advice of the Station Commander, he wrote a letter to the Headquarters, which he gave to the Station Commander, who advised that he would revert to him once the letter in response was in his possession.
The Plaintiff further testified that after January 2006, he travelled to the Headquarters to visit the department responsible for retirement, so that he could be availed the letter of retirement, but was advised to go back to Mumbwa as they had seen his letter of request and they would respond to him.
That in mid February 2006, he received a letter from the Air Commander which was explaining that there was no need for a letter of retirement as he had already cleared.
It was the Plaintiff’s further testimony that when he again travelled to the Headquarters in March 2006, he was told that his file was already with the 2nd Defendant and was advised to go and check with them.
At the 2nd Defendant, he found the file going for assessment. When he asked on what authority they were going to calculate the pensions without a letter of retirement, he was offered no explanation. All he was told was that they were calculating his benefits under public interest.
According to PW1, this came to him as a surprise as he did not remember ever being disciplined since he joined. That he later went to see Colonel Phiri (DW1) who then was the Director Legal Services at Zambia Air Force to find out why his letter of retirement was not being released. DW1 drew his attention to the letter the Plaintiff received in February 2006 which indicated that his Services were no longer required and that he was discharged by the Commander.
It was the Plaintiff’s further evidence that Zambia Air Force even refused to give him a certificate of discharge which could have indicated the reason for the discharge.
That to date, he neither has a letter of retirement nor Certificate of Discharge and that this has made it difficult for him to find employment elsewhere.
The Plaintiff’s further evidence was that as a Warrant Office Class 1, the Air Commander is not the final authority on his retirement, neither is he the promoting authority.
According to him, even if it was him who had applied, the Air Commander has no authority to approve his retirement. That the promotion and retirement of Warrant Officer Class 1 is done by the Defence Council.
Further, that as a Warrant Officer Class 1, who had served for 23 years, he could not be discharged, he could only be retired.
The Plaintiff further testified that due to ill health, he gave a power of Attorney to PW2 in early 2008 to continue chasing for his letter of retirement. That PW2 wrote a letter to Cabinet Office who replied stating that he was retired by the President in the National Interest. That PW2 wrote again to Cabinet Office stating that the terminal benefits should be recalculated, to no avail.
That in October 2008, he received a copy of a letter addressed to PW2, indicating that Cabinet Office had changed their stance on the subject matter.
It was the Plaintiff’s further testimony that he was surprised and shocked when he saw the Defendants Bundle of Documents as most of the Documents were done without his knowledge.
That the 2nd Defendant paid him K260,000,000 less the loan deductions. The Plaintiff referred to page 7 of the Plaintiffs Bundle of Documents and asserted that in the case of involuntary retirement it is the Defence Council and not the Air Commander who has authority to retire a Warrant Officer Class 1.
The Plaintiff further referred to page 5 of the same bundle, a letter of retirement of two Officers and that in reference to a Warrant Officer Class 1, the Air Force stated that only the Defence Council could ratify his retirement.
In cross examination, by Counsel for the 1st Defendant, the Plaintiff asserted that his employment was governed by The Defence Act9. That he was not availed the information that he was discharged under Regulation 9 (3) of The Defence Act9, although he is aware of the reason given under Regulation 9 (3) of the Act.
He further asserted that Regulation 9 (3) does not apply to a Warrant Officer Class 1 who has worked for over 20 years. That the same Section on the right hand side states that for a Warrant Officer Class 1, it is only the Defence Council which can discharge him. That it is only the President through the Defence Council.
The Plaintiff further asserted that Cabinet Office earlier informed him that he was retired in national interest, however they later changed their stance and said the earlier letter was written in error.
The Plaintiff also asserted that he does not have any document to prove that Warrant Officer Class 1, Ndhlovu’s retirement was ratified by the Defence Council.
In cross examination by Counsel for the 2nd Defendant, the Plaintiff asserted that he is claiming the sum of K990,880,070.60 against the 1st Defendant comprising of special loss and damages. That when he went to the Pensions Board, he discovered that there was no instruction for his retirement.
He further asserted that he was briefed by DW1 that he was being retired under public interest and at the 2nd Defendant, he was told that the calculations were being done under public interest.
When referred to page 21 of the 2nd Defendants Bundle of Documents, on reading Section 41, the Plaintiff conceded that one can be retired on grounds not otherwise described.
According to the Plaintiff, he eventually received his benefits in the sum of K260,000,000, although he was not sure if the amount paid was the correct one under Section 41.
The Plaintiff further asserted that he wants his benefits to be re calculated because there was no authority and that the calculation can only be done once he receives his letter of retirement and not an occurrence report.
PW2, Simatama Maliwatestified that sometime in September 2007, he was given a Power of Attorney by the Plaintiff with specific instructions to collect a letter of retirement and to pursue under payments and benefits.
According to PW2, he wrote a letter to Cabinet Office in the same month to find out under what circumstances the Plaintiff left employment, so that he could determine the exact Section of The Public Service Pensions Act10 to base the calculation on.
That Cabinet Office replied through a minute by the Director – Special Duties dated the 19th day of February 2008. That it was on the basis of that reply that PW2 concluded that the Plaintiff was retired in national interest and therefore that Section 41 of The Public Service Pension Act10 did not apply but Section 39 was applicable because all retirees retired in national interest are paid under Section 39 of The Public Service Pensions Act10.
PW2 further testified that as regards national interest the office of the Attorney General had given instructions to the 2nd Defendant on how to pay the Officers who were disadvantaged by the retirement. PW2 in that respect referred to the document on page 23 of the Plaintiffs additional Supplementary Bundle of Documents and asserted that going by that recommendation and Section 39 (2) (b) of The Public Service Pensions Act10, he proceeded to do the calculation based on the Plaintiff’s salary, less what was already paid and arrived at the balance of K180,995,000.
PW2 further testified that he then wrote to Cabinet Office indicating that the Plaintiff was underpaid and he received a reply that Cabinets position on the matter was as previously communicated.
That at the instance of Cabinet Office he attended a meeting at Zambia Air Force Headquarters. That during the meeting, the Officers conceded that the Plaintiff had not been communicated to and DW1 apologised to that effect and that since they operate under orders and the orders were given by their Senior, there was nothing that could be done.
In cross examination by Counsel for the 1st Defendant, PW2 asserted that he was appointed by the Plaintiff and the Power of Attorney was for one year. PW2 conceded that he was not appointed to collect the letter but the Plaintiff’s benefits from the lump sum as the issue of the letter came later. PW2 asserted that the Power of Attorney has not been filed into Court, although he left a copy at Zambia Air Force Headquarters.
PW2 further asserted that DW1 confirmed at the meeting that the procedure for retirement was not followed, although the confirmation does not appear in the minutes.
In cross examination by Counsel for the 2nd Defendants, PW2 asserted that he understands The Public Service Pensions Act10 and that Cabinet Office are the ones who stated that the Plaintiff was retired in national interest.
According to PW2, he was pursuing the difference payable under Section 41 and Section 39 (2) (b) of The Public Service Pensions Act10.
On the part of the Defendants, the 1st Defendant called one witness and the 2nd Defendant did not call any witness.
DW1 Brigadier General Moses Phiri, the Air Secretary based at the Ministry of Defence testified that in the year 2005, he was the Director of Legal Services at Zambia Air Force which position he held for over ten years. DW1 recalled that the Plaintiff was at the material time an employee of Zambia Air Force and was retired towards the end of 2005 pursuant to the provisions of The Defence Act9. DW1 also recalls receiving a letter from the Plaintiff wherein he was requesting to be provided with the letter of retirement.
It was the evidence of DW1 that at the time, the Plaintiff had already proceeded to clear from Zambia Air Force based on the Common circular which was written to all Zambia Air Force bases including Mumbwa where the Plaintiff was based. That the circular was written in November 2005 and was addressed to all Air Force formations and the names of all the people to be retired were annexed. When referred to the circular which appears on page 4 of the Defendants Bundle of Documents, DW1 testified that the Plaintiffs name appears on Serial 4 and that he was to be retired with effect from the 30th day of November 2005 pursuant to Regulation 9 (3) of The Defence Act9, Third Schedule (XVIII). That this is the Official circular which is sent to all formations after promotions are done or retirements are effected after a Defence Council Sitting being the highest body which ratifies promotions and endorses retirements.
That the competent authority to retire a person is provided for under The Defence Act9 and in this regard Regulation 9 (3) of the Defence Force Enlistment provisions was applied in particular serial XVIII of the Third Schedule.
According to DW1, the Enlistment provisions relates to all non Commissioned Officers (Soldiers) which included the Plaintiff and that under the aforestated provision the competent authority was the Air Commander, save to state that for Warrant Officers they had to pass through the Defence Council for ratification.
Further, according to DW1, in this instance, the Air Commander was the competent authority, except that there had to be ratification from the Defence Council.
As regards the issue of clearance, it was DW1’s testimony that clearance is the procedure used for service personnel to show their Heads of Departments that an occurrence has happened, such as retirement or moving from one formation to another.
That the Plaintiff filled in a clearance form and was cleared from the Air Force and a clearance certificate was issued as evidenced on page 8 of the Defendants Bundle of Documents.
DW1 further testified that an Occurrence Report is raised when an event happens such as death, promotion or retirement signifying the happening of an occurrence and also to invoke certain procedures. That in case of retirement, the payment procedures to be undertaken.
According to DW1, he came across the occurrence report in respect of the Plaintiff and he checked that the procedures were followed before the files could be released from Zambia Air Force to the 2nd Defendant. It was the evidence of DW1 when shown the Occurrence report on page 7 of the Defendants Bundle of Documents that an Occurrence report should have the authority showing the provisions under which a particular person has been retired and also the relevant provision which relates to payment of his benefits.
When referred to page 51 of the 2nd Defendants Bundle of Documents, DW1 asserted that, that was the occurrence report which was sent together with the personal file to the 2nd Defendant to process the payment. That this report showed that the Plaintiff would be paid three months salary in lieu of notice and it also shows the Regulation under which the Plaintiff was to draw benefits as provided for under The Defence Act9 that if one retired under Regulation 9 (3) Serial XVIII, they have to automatically be paid under Regulation 17 because it is a compensatory regulation.
Further DW1 testified that the Plaintiff had written to the Air Force to say that he wanted a letter of retirement. According to DW1, in terms of procedure they normally and ordinarily do not issue letters of retirement apart from a letter of discharge. That however, in this particular case, a letter was written to the Plaintiff upon his request indicating that he had been retired and the provisions under which he was retired and that the said letter appears on page 24 of the Defendants Supplementary Bundle of Documents dated 17th February 2006.
DW1’s further testimony was that the Plaintiff was not a Commissioned Officer and therefore could not be retired by the President. That under Section 2 of The Defence Act9, the interpretation Section, which provides for a definition of a Soldier, it covers non commissioned Officers and covers Warrant Officers and is therefore distinguishable from a Commissioned Officer.
DW1 recalled dealing with PW2 in connection with the matter relating to the Plaintiff who had a Power of Attorney to represent the Plaintiff. That PW2’s area of concern was debt collection as he simply wanted to collect the terminal benefits due to the Plaintiff. That PW2 also challenged the provisions which had been invoked on the retirement of the Plaintiff as a result DW1 was instructed by the Ministry of Defence to respond and he wrote a letter to the Ministry of Defence clarifying the terms and conditions under which the Plaintiff served and was consequently retired. That the letter appears on page 27 of the Defendants Bundle of Documents.
Further that there was also an interest from Cabinet Office at the time and there was correspondence between Cabinet Office and PW2 which most of the time was copied to Zambia Air Force. That one of the said letters stated that the Plaintiff was retired in national interest. That this did not reflect the actual position as there are no such provisions under The Defence Act9 and was therefore not correct.
According to DW1, they engaged Cabinet Office through the Ministry of Defence to explain and clarify the issue.
It was DW1’s further testimony that the Plaintiffs retirement was normal. That this was under a contract of employment under which there were modes of retirement. That one could give three months notice that he wanted to retire or the employer could give three months notice or payment in lieu of notice. That Zambia Air Force as an employer invoked the provisions by giving him three months notice as the Plaintiff’s services were no longer required.
Further, according to DW1 it was right to retire the Plaintiff under the aforestated provisions as there is no other provision for retirement of a non Commissioned Officer. That all non Commissioned Officers can be discharged from the Air Force and that the Plaintiffs last date of service was 30th day of November 2005.
In cross examination by the Plaintiff, DW1 asserted that occurrence reports are raised by the Air Force. That he got involved in this matter immediately the Plaintiff s retirement was effected. Further, that it was his sole responsibility to advise the Air Force command whether the regulations used were correct and if so what other procedures needed to be followed until a person is paid benefits.
According to DW1, once the retirement had been triggered, the duty of the Supervising Officer is to facilitate for the clearance of the Officer from the Force. That in this case the Air Force triggered the retirement through the Air Commander.
It was DW1’s assertion that the Plaintiff was working under the Air Commander, who followed the procedure as he used the regulation which he can invoke when he does not require one’s services and this was notified to the Plaintiff.
DW1 referred to the document on page 2 of the Plaintiffs Bundle of Documents and stated that, that is a signal which is normally transmitted by radio and is addressed to all Air Force Formations. That it is an Internal Document and not specifically addressed to the Plaintiff and it is dated the 31st day of December 2005.
Further, according to DW1, he was not aware that Officers and Soldiers are Civil Servants. Further that The Public Service Pensions Act10 covers Soldiers.
DW1 further re emphasized that it is not a practice for the Air Force to write retirement letters as the law does not provide for that. That the Air Force however does so on insistence or request.
Further, according to DW1, a Warrant Officer who has served for 23 years can be discharged as provided by law.
It was DW1’s further assertion that there is no limitation to the number of personal occurrence reports Zambia Air Force can write. DW1 was not aware if a Discharge Certificate had been given or picked up by the Plaintiff, but it was his evidence that it is for the Plaintiff to pick up the same from his station as it is issued by the Station Commander.
The Plaintiff filed his written submissions on the 29th day of January 2013.
The Plaintiff submitted that he had proven his case on the balance of probability and urged the Court to award him the claims in full. That from his evidence and that of PW2 the following facts have been established.
(1) That the Plaintiff’s terms and conditions of service were governed by The Defence Act and The Public Service Pensions Act.
(2) That the Plaintiff was employed by the 1st Defendant on permanent and pensionable terms and conditions of service.
(3) That the Plaintiff was verbally retired from the Civil Service before reaching the statutory age of 55 years.
(4) That the Plaintiff was not facing any disciplinary action.
(5) That the Plaintiff has not been served with his letter of retirement to date.
The Plaintiff then went on to assess the evidence of DW1 and submitted that DW1 was not involved in his retirement as Officers involved in matters of retirement are as reflected by the Zambia Air Force Administrative Instruction No. 45 appearing on pages 6 to 9 of the Plaintiffs Bundle of Documents.
Further that the occurrence report on page 7 of the Defendants Bundle of Documents and the letter on page 4 of the same bundle are defective because they did not show the formula or Section to be used on calculating the benefits of the Plaintiff.
The Plaintiff submitted that the letter by Brigadier General Kayamba to the Plaintiff explaining the Air Force Position on the retirement dated 17th day of February 2006 is not a letter of retirement as it does not even show the cause and authority of the Defence Council as these are important on the matters of authority.
According to the Plaintiff, it is not true that the Air Force does not write letters to Soldiers or non Commissioned Officers and that they only issue a Certificate of discharge. That as shown on page 25 of the Plaintiffs Additional Supplementary Bundle of Documents it is not true that they only write on request of the retiree as this would amount to segregation. The Plaintiff in that respect cited the case of Bank of Zambia v Kasonde1 where it was held that employers should treat employees fairly and equally.
The Plaintiff went on to cite the case of William Masowe Mulemba v Attorney General2, a High Court decision where the Plaintiffs effective date of retirement was taken to be that when they received their letters of retirement.
The Plaintiff further submitted that his purported retirement was irregular and not in compliance with the provisions of The Defence Act9 in particular Sections 79 to 82 which provides for discipline, trial and punishment of the Military Officers. That the Plaintiffs conditions of service as a Civil Servant has statutory provisions to be followed. The Plaintiff cited the case of Contract Haulage Limited and Mumbwa Kamayoyo3 where the Supreme Court held that:
“Where there is a statute which specifically states that an employee may only be dismissed if certain proceedings are carried out, then an improper dismissal is ultra vires: and where there is some statutory authority for certain procedures against him or any other unfairness is contrary to natural justice and a dismissal in those circumstances is null and void.”
The Plaintiff further in that respect relied on the cases of Kang’ombe v The Attorney General4 and the case of Jeremiah R Mbawa v The Attorney General5.
The Plaintiff further in his submissions went on to contend that the 1st Defendant acted unfairly by not according the Plaintiff an opportunity to explain himself on the purported retirement, hence the 1st Defendant violated the rules of natural justice.
The 1st Defendant filed its written submissions on the 15th day of February 2013 and submitted that in line with the evidence of DW1, the Plaintiffs retirement was ratified by the Defence Council. That although he did not have any correspondence to show that the Plaintiffs retirement was ratified, he did tell the Court that there are letters alluding to that defence. Counsel for the 1st Defendant submitted that the fact that the Plaintiffs retirement was published on the 16th day of November 2005 as appears on pages 4 to 6 of the 1st Defendants Bundle of Documents, it shows that the retirement was approved. Further that page 4 of the 1st Defendants Bundle of Documents under paragraph 2 provided that:
“The Officers and Warrant Officer appearing at Annex ‘A’ to the letter were promoted to their next higher ranks as indicated against their names. At Annex ‘B’ is a list of Officers and Warrant Officers that have been retired from the Regular Zambia Air Force with effect from the dates indicated against their particulars.”
That the Plaintiff appears on Annex ‘B’.
According to Counsel, the Plaintiff in his submissions has stated that Warrant Officer Class 1 Nonde, whose name appears on Annex ‘B’ did not complain because she applied to retire and her name was reflecting on Defence Council sitting on 11th November 2005 and a letter was written to her and the records are available at the Ministry of Defence. That the Plaintiff further claims that this was the only Defence Council sitting in 2005 and his name does not appear but was only included at the Zambia Air Force Headquarters.
It was Counsel’s submission that the Plaintiffs submission is false. According to Counsel, if the Plaintiff had a document to show, he would have filed it into Court to show proof to that effect. Counsel relief on the case of Wilson Masauso v Avondale Housing Project Limited6 where it was held that it is generally for a Plaintiff who alleges to prove the allegations and a Plaintiff who fails to prove his case cannot be entitled to Judgement, whatever may be said of the opponent’s case.
It is Counsels submission that the issue of ratification is an afterthought as in the many letters the Plaintiff wrote, he never brought up the issue, all he was asking for was his letter of retirement.
It is Counsel’s further submission that there is no provision in The Defence Act9 or Regulations which make it mandatory for the Air Force to issue a letter of retirement. That the Plaintiff was informed of his retirement and on that basis proceeded to clear from the Air Force.
It is Counsel’s contention that the Plaintiff was not retired in the national interest and is therefore not entitled to benefits under Section 39 of The Public Service Pensions Act10.
That the Plaintiff was retired and paid his terminal benefits as provided for in Regulations 17 (c)(iv) of the Defence ( Regular Force) (Pensions) Regulations of the Defence Act and that all non Commissioned Officers can be discharged from the Air Force.
That Section 2 of the Defence Act defines a soldier, which includes a Warrant Officer and all non Commissioned Officers. Counsel for the 1st Defendant then went on to distinguish the authorities cited by the Plaintiff from the case in Casu.
Counsel further submitted that the Plaintiff is not entitled to the reliefs he is seeking as it would be unjust enrichment to award salaries or benefits for a period he did not work.
Counsel relied on the case of Kitwe City Council v William Ng’uni7 where the Supreme Court held as follows:
“It is unlawful to award a salary or pension benefits for a period not worked for because such an award has not been earned and might be properly termed as unjust enrichment.”
As regards the relief for reinstatement, Counsel submitted that on the strength of the case of Zambia Railways Limited v Oswell Joseph8 the Plaintiff is not entitled to that relief.
Based on the aforestated submissions, Counsel for the 1st Defendant urged the Court to dismiss the Plaintiffs claim with costs to the Defendants as the Plaintiff has failed to prove his claims on a balance of probabilities.
The 2nd Defendant filed its submissions on the 20th day of February 2013. Counsel started by evaluating the evidence of the witnesses and then went on to submit that the Plaintiff in his testimony raised two issues against the 2nd Defendant namely;
(1) Lack of authority of retirement upon which to base the calculations of the pension benefits.
(2) Under payment of pension benefits as he claimed he was retired in national interest.
Counsel submitted that it should be noted from the onset that The Public Service Pensions Act10 has a number of provisions under which a person could be retired. That the first one is upon attaining the age of 55 years which falls under Section 33 of the Act. Section 40 deals with retirement on medical grounds and Section 39 on national interest and Section 41 on grounds otherwise not described. That other modes of exit include death, resignation, dismissal and discharge.
That further, it should be noted that the 2nd Defendant cannot calculate pension benefits in the absence of a letter of retirement from the employer or some similar authority because that is the document which decides and invokes the Section under which the benefits should be calculated. That the Plaintiff confirmed that he was paid pension benefits less the debt to the government as per the document on page 14 of The Plaintiffs Bundle of Documents, the cause of retirement being early retirement (Section 33 of 1996).
Counsel submitted that Section 33 is not Section 39 (National Interest) nor Public Interest which the Plaintiff kept referring to.
According to Counsel, there was nothing unusual in the retirement of the Plaintiff and that is why Section 33 was invoked as it is the provision which allows members of the Defence Forces, Police or Prison Service to retire upon attaining the age of 45 or after competing 20 years of Service.
Counsel for the 2nd Defendant submitted that the 2nd Defendant had the authority and based its calculation of terminal benefits on the same.
Further that it is not true that the Plaintiff was retired in national interest, save for the letter from Cabinet Office which erroneously stated that he was retired in national interest which was later corrected.
In conclusion, Counsel submitted that the Plaintiff was correctly paid under Section 33 of The Public Service Pension Act and therefore the 2nd Defendant does not owe the Plaintiff any money by way of under payment because he was not retired under national interest.
I have carefully analysed the pleadings in this matter, the several Bundles of Documents and the submissions by the Plaintiff and those by Counsel for the 1st Defendant and Counsel for the 2nd Defendant.
The main issue for resolution in this matter hinges on the Plaintiffs first relief being claimed. That is, was there breach of the Contract between the Plaintiff and his employers, which can be said to be wrongful retirement. Once that main issue is resolved it will have a bearing on the rest of the reliefs being sought as they are ancillary and therefore are dependent on which way the aforestated issue is resolved.
In resolving the main issue alluded to, several sub issues arise which need to be addressed in resolving the main issue. These are:
(1) What Contract of employment – Conditions of Service governed the relationship of employee, employer between the Plaintiff and the 1st Defendant.
(2) Was the Plaintiff a Civil Servant as he alleged in his pleadings and evidence.
(3) What modes of retirement are provided for under the contract of employment between the parties.
(4) Who had the authority to retire or terminate the Plaintiffs services under the contract of employment, and lastly
(5) What was the requisite mode of communication or retirement or termination of employment between the parties.
A glean of the pleadings and the evidence of all the witnesses reveals that the parties to this cause are in agreement that The Defence Act9 governed the Plaintiff and 1st Defendants employee and employer relationship.
Therefore, that is the contract of employment, which is statutory and forms the contractual relationship between the Plaintiff and the 1st Defendant. In which case then, one need not look elsewhere but The Defence Act9, suffice to add that as regards matters relating to aspects of pension benefits, The Public Service Pensions Act10 as again agreed by the parties is the applicable Act.
The Plaintiff as a Warrant Officer Class 1 falls squarely under the provisions of The Defence Act9 having been an employee of the Zambia Air Force and according to the interpretation Section, Section 2 of the same Act, is a soldier as he was a non Commissioned Officer. Further, no evidence was adduced by the Plaintiff that he was ever commissioner by the President of the Republic of Zambia as provided for under the Act, so as to take the Plaintiff out of the realm of a Soldier.
It is also not in dispute that the Plaintiff was employed on permanent and pensionable basis.
Attendant to The Defence Act, by way of subsidiary legislation are Regulations and of interest and applicable to this cause are the following:
(1) The Defence (Regular Force) (Pensions) Regulations.
(2) The Defence (Regular Force) Enlistment and Service) Regulations.
As regards The Public Service Pensions Act10, the Act was amended by Act No. 35 of 1996 in order to consolidate the law relating to pensions and other benefits for persons employed in the public service and to provide for matters connected therewith and incidental to such consolidation. One of the funds which was captured under the said consolidation is the Pension Fund which was established under The Defence Act9. The Public Service Pensions Act10 provides for amongst other things the applicable benefits on resignation, discharge, dismissal or retirement of an employee to whom the Act applies. And of interest to this cause are Sections 39 and 41 of the Act.
The aforestated, are the two main pieces of legislation applicable to the Plaintiff. At the expense of being repetitive, it is The Defence Act9 and The Public Service Pension Act10.
As regards, the second sub issue, I am at difficulties as to the reasoning behind the Plaintiff’s allegation that he was a Civil Servant. No ground or basis was laid by the Plaintiff in his evidence to justify the said allegation. Being a Soldier as earlier alluded to, he is governed by The Defence Act9 and not The General Orders which are applicable to Civil Service.
Therefore Cabinet had no role to play under The Defence Act9 nor in this matter. Their interest and interventions were totally unnecessary and uncalled for and only tended to confuse the situation as they had no legal role to play in this matter. Having made that finding of fact, it follows that the Plaintiff was not a Civil Servant and whatever Cabinet Office had to say in this matter should totally be disregarded as it has no legal efficacy nor basis.
As regards the third sub issue, The Defence Act9 does not expressly subscribe to terms such as termination and retirement. It would in my view seem that and correctly so, that retirement falls under Discharge. Section 18 of The Defence Act9 provides for Discharge. But of particular interest to this matter is Regulation 9 of the Defence Force (Regular Force)(Enlistment and Service) Regulations and in particular Regulation 9 (1)(3) which states as follows:
“ A Soldier may be discharged from the Regular Force at any time during his service in such force upon any of the grounds set out in column 1 of the third schedule, subject to the special instruction appearing opposite thereto in column 2 of the said schedule and for the purpose of Section twenty-one of the Act, the person specified opposite thereto in column 3 of the said shall be the competent military authority for the purpose specified in column 1 thereof.”
Section 21 of The Defence Act9states as follows:
“A Soldier of the Regular Force may be discharged by the competent military authority at any time during the currency of any term of engagement upon grounds and subject to such special instructions as may be prescribed.”
It will be noted that some of the various special instructions prescribed under Regulation 9 (1) (3), column 1 of the third schedule, of interest to this matter are discharge on grounds such as medical, misconduct, committing an offence, convicted, and where ones services are no longer required.
Indeed the aforestated situations have nothing to do with the provisions pertaining to normal retirement were one has reached the statutory retirement age.
As regards the benefits applicable on retirement, Section 39 (1) of The Public Service Pensions Act10 provides for the calculation of benefits for those who retire on abolition of post or to effect greater efficiency or economy (ie national interest). Section 40 provides for Officers retiring on grounds of ill health and Section 41 on grounds not otherwise described.
As regards the fourth and the fifth sub issues, the answer can expressly be found in the Third schedule of Regulation 3 of The Defence Force (Regular Force) (Enlistment and Service) Regulations as to the competent authority to authorize the discharge and on how the same is effected. Suffice to add that under the aforestated Regulation and nowhere under The Defence Act9 is there an express provision that the discharge should be effected by way of a letter.
Having dealt with the sub issues, let me now revert to the main issue for determination.
The Plaintiffs assertion that there was a breach of contract and that his retirement was wrongful is based on his allegations that he had not reached the statutory age for retirement and should therefore not have been retired. Secondly, that since he has to date not been given a letter of retirement, he should not be taken as having retired until such a time that he would have received the letter of retirement.
The Plaintiff is also asserting that he could in the alternative have retired voluntarily by giving notice on attaining the age of 45 years or upon completing 20 years of service in strict consultation with the 2nd Defendant.
It is in that respect that the Plaintiff is contending that his retirement on attaining the age of 45 without any notice from him and without a letter of retirement and being paid benefits under Section 41 instead of Section 39 (2)(b) of The Public Service Pensions Act10 was wrongful.
It is in that view that the Plaintiff has extended his argument to say that his retirement should be taken as being in national interest and that his benefits ought to have been paid under Section 32 (2)(b) of The Public Service Pensions Act10.
It is not in dispute that the Plaintiff was shown the message pad, which appears on page 2 of the Plaintiffs Bundle of Documents on the 14th day of November 2005, which message clearly stated that the Plaintiff was being retired. It is also clear from the Plaintiffs own evidence that upon being shown the message, the Station Commander went on to ask him questions which cleared whatever doubts could have existed as to his retirement.
The Plaintiff confirmed to the Station Commander that he had attained the age of 45, he had served for 23 years, he had never appeared before a Medical Board, he had never appeared before a Court Martial, he was not facing any disciplinary action and that he had never applied for retirement. That definitely should have given an insight to the Plaintiff as to why he was being retired.
In fact the Plaintiff does not dispute having come across the Occurrence Report of 22nd November 2005 and Annex ‘B’ which documents appear on pages (7) and (6) of the Defendants Bundle of Documents. These two documents clearly demonstrate that the Plaintiff was retired in accordance with Regulation 9 (3), Third Schedule Serial XVIII of The Defence Act9. It further goes to show that the 1st Defendant in effecting the retirement complied with the requisite mode as required under Regulation 9 of The Defence Force (Regular Force) (Enlistment and Service) Regulations in particular Regulation 9 (1) (3) as the special instruction appeared under the remarks and the competent military authority in column 3 of the said Regulation was the Air Commander.
It is also evident that the Plaintiff was aware as to the ground for his retirement. As can be seen from his letter of the 23rd day of December 2005 which is hereby reproduced.
“The Air Commander
Zambia Air Force
P.O Box 31291
23rd December, 2005
RE: RETIREMENT WARRANT OFFICER 934348 WARRANT OFFICER CLASS 1 CM IMASIKU
The subject matter referred.
2. Allow me to thank you for terminating my contract. However I feel the rules of the game have not been followed as provided by the Defence (Regular Force) (Officers) Regulations 1960 of the Defence Act cap 106.
3. I still wait to see how you implement subsection (b) of Regulation 9 (3) of the Defence Act cap 106 Third Schedule (XVIII) on which I have been retired.
4 Note I am still waiting for my letter of retirement.
Warrant Officer 1 (Retired).”
For the sake of clarity Regulation 9 (3) Third Schedule Serial XVIII, states the cause of discharge as services being no longer required and that it would only be used for the discharge of Soldiers who cannot be discharged under the authority of any other serial and states the competent military authority to authorize the discharge as the Commander.
It would seem to me that the Plaintiff has deliberately chosen to ignore the fact that he is aware that the ground for his retirement is as contained in Regulation 9 (3) Third Schedule, Serial XVIII and has instead chosen to go his own way, which has in my view no legal backing and untenable.
The Plaintiff was not facing any disciplinary action. Therefore the reference to the rules of natural justice and the cases cited thereto are totally inappropriate and not necessary.
The issue of unfairness and also the cases cited in that respect are irrelevant as I have already made a finding of fact and law that there is no mandatory requirement under The Defence Act9 for rendering of a letter of retirement. It cannot also be said that the Plaintiff was retired under national interest as the grounds for his retirement were specifically communicated to him and he was accordingly aware. Further, the issue of national interest was brought about by Cabinet Office whom I have already stated had no role to play in this matter.
What is clear in this matter is that the Plaintiff had attained the age of 45, had served for 23 years and was accordingly retired in accordance with Regulation 9 (3) Third Schedule serial XVIII of the Defence Force (Regular Force) (Enlistment and Service) Regulations of The Defence Act9 and also Sections 18 and Section 21 of The Defence Act9. And in doing so, the 1st Defendant acted strictly within the provisions of The Defence Act9 which formed the Plaintiffs Statutory Conditions of Service.
It is also on the basis of the aforestated provisions of the law, which was communicated through the Occurrence, which formed the authority, that the 2nd Defendant based its calculation of the benefits on Regulation 17 of the Defence (Regular Force) (Pensions) Regulations of The Defence Act9which is compensatory and Section 41 of the Public Service Pension Act10.
In the view that I take, I do not find any breach of contract on the part of the 1st Defendant. And as earlier stated, the other reliefs are ancillary and dependant on the outcome of the first.
The sum total being that the Plaintiff has failed to prove his claim on the balance of probability and the entire claim is therefore dismissed with costs to the 1st and 2nd Defendants.
Leave to appeal is hereby granted.
Delivered at Lusaka this 19th day of March, 2013.
HIGH COURT JUDGE