Christopher Hotel Ltd v Chambawilo and Ors (Appeal 151 of 2015) [2018] ZMSC 571 (26 June 2018)

T IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NO. 151/2015 BETWEEN: CHRISMAR HOTEL LIMITED APPELLANT AND DITTON CHAMBAWILO AND 61 OTHERS RELIANCE SERVICES LIMITED 1st RESPONDENTS 2nd RESPONDENT CORAM: Mwanamwambwa, DCJ, Kajimanga and Musonda, JJS on 8‘h May, 2018 and 26th June, 2018 For the Appellant: Mrs. D. Findlay of D. Findlay and Associates For the 1st Respondents: Mr. Mulenga of Kumasonde Chambers JUDGMENT MUSONDA, JS, delivered the Judgment of the Court Cases referred to: 1. Associated Chemicals Limited v. Hill and Delamain Zambia Limited & Ellis & Co. (as a firm) (1998) Z. R. 9 2. Salomon v. Salomon (1897) A. C. 22 3. Mike Hamusonde Mweemba v. Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited (2006) Z. R. 101 4. Zambia Consolidated Copper Mines Limited (ZCCM) v. Richard Kangwa & Others (2000) Z. R. Ill 5. Nkhata & Four Others v. Attorney General (1966) Z. R. 17 6. Edward Chileshe v. Zambia Consolidated Copper Mines Limited (1995-97) Z. R. 48 7. Roston Mwansa v. NFC Africa Mining PLC: Appeal No. 12 of 2008 Legislation referred to: J2 1. Section 25 {1) of the Hotels Act, Chapter 153 of the Laws of Zambia 2. Order 14 Rule 5 of the High Court Rules, Chapter 27 3. Section 85 of the industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia Other Works referred to: 1. Chitty on Contracts (2004: Sweet & Maxwell: London) Vol. 11, 29th edition, paras. 39-015/059 2. Black’s Law Dictionary, 8^h edition 1 .0 Introduction 1.1 This appeal has arisen by way of the appellant’s reaction to an interlocutory Ruling of the court below (the Industrial Relations Court or the “IRC”) in terms of which that court granted the Applicants, now 1st Respondents, leave to have a limited company known as Chrismar Hotel Limited (the Appellant herein) joined as the 2nd Respondent to the complaint which is still pending in the lower court. 1.2 In granting the said leave, the court below reasoned that the nature of the activities and interactions between the Appellant and the 2nd Respondent suggested that, although the two limited companies legally existed as separate legal entities, they operated as one economic entity. J3 1.3 The lower court further reasoned that, having the Appellant joined to the matter in the court below would afford the Appellant an opportunity to "... conclusively prove its claim of [being irrelevant] to this cause during the hearing of the main matter. ” 1.4 However, the lower court found no plausible basis for joining till Vaiden Harry Findlay, who had also been targeted in the joinder application, to the complaint. 2 .0 1st Respondents’ Complaint and Supporting Evidence 2.1 The background facts and circumstances to which this appeal is owed are of undoubted perspicuity. 2.2 On or about the 12th of August, 2005, the 1st Respondents, who were all former employees of the 2nd Respondent, presented a complaint in the court below against the 2nd Respondent in which they were primarily seeking the recovery of what they described as a service charge which, they contended, had been accruing but was never paid to them. 2.3 The 1st Respondents further deposed in their said Affidavit that, at the time of their retrenchment and, in fact, throughout the period of their employment by the 2nd J4 Respondent dating back to October, 2002, they had not been receiving their service charge. « « « « 2.4 According to the 1st Respondents, the 2nd Respondent’s failure to pay them the service charge in question constituted a contravention of Section 25 (1) of the Hotels, Act, Chapter 153 of the Laws of Zambia. ' ' 3 .0 The Joinder Application: Evidence and Arguments 3.1 On 18th March, 2009, an application was filed in the court below on behalf of the 1st Respondents by which the pursuers of the application were seeking to have Vaiden Harry Findlay and the Appellant joined to the complaint in the court below as 2nd and 3rd Respondents respectively. That application was supported by an Affidavit which was sworn by one Ditton Chambawilo on behalf of the 1st Respondents, Skeleton Arguments and written submissions. 3.2 In that supporting Affidavit, the deponent deposed that the 2nd Respondent had refused to pay the 1st Respondents’ service charge because the 1st Respondents were neither its (that is, the Appellant’s) employees nor did the 2nd Respondent operate or carry on the business of a hotel. J5 3.3 The major plank of the depositions in the 1st Respondents’ supporting Affidavit were expressed as follows: , 3.3.1 Although the 1st Respondents were ipitially employed by the 2nd Respondent, they were effectively employees of the Appellant because it was at the latter’s hotel that they had been discharging their duties and that those duties were being assigned to them by the Appellant itself; 3.3.2 Notwithstanding the 2nd Respondent’s insistence that it was a legal entity separate and distinct from the appellant, it was the latter’s Accounts Department which had been responsible for paying the 1st Respondents’ salaries as well as meeting their statutory contributions such as National Pension Scheme Authority (NAPSA) contributions; 3.3.3 The 2nd Respondent and the Appellant were both wholly- owned by Harry Vaiden Findlay; and 3.3.4 That the 2nd Respondent had been created and was controlled by the Appellant and existed as such and in the nature of a dummy for the Appellant. 3.4 It is worthy of note that, among the documents which were J6 exhibited to Ditton Chambawilo’s Affidavit in Support of the joinder application was a letter dated 9th February, 2004 from the Appellant’s . General Manager to the . 2nd Respondent’s Managing Director. That letter was couched in the following terjns: , , “9th February, 2004 The Managing Director Reliable Services Limited Freedom Way Lusaka Dear Sir, RE: Repudiation of Contract We refer to the contract between us, under the terms of which you agreed to perform the following: • Provide services in various departments of our organization. We regard you to have failed to perform your obligations under the contract in the following respects: 1. Your employees have been involved in serious thefts costing us considerable loss. 2. The quality of service is unsatisfactory; we have had numerous complaints from clients. ' ' J7 3. The employees are insufficiently trained to perform the functions assigned to them. Despite previous requests you have not made good your failure. We have considered the matter fully and concluded that your failure is repudiation by you of your obligation under the contract. We consider the contract terminated because of your conduct. In the meantime we are seeking legal assistance as to the recovery of the losses suffered. Safe receipt hereof please acknowledge by signing below. Yours sincerely, Mr. O. Kapoor General Manager Chrismar Hotel c.c. The Managing Director Labour Commissioner Received by: Date: 9th Feb. 2004” 3.5 In the written submissions which were filed on behalf of the 1st Respondents in support of the joinder application, the court below was invited to ignore the separate legal existence of the 2nd Respondent and the Appellant ostensibly because the two companies existed, operated and were controlled as J8 one economic entity. 3.6 For their part, Harry Vaiden Findlay and the Appellant filed lilt their respective Affidavits contesting the joinder application. ,3.7 Harry Vajden Findlay, fof his part, contested the application in question on the basis that, although he was one of the shareholders in the 2nd Respondent, none of the 1st Respondents had been employed by him in his personal capacity. Findlay further deposed in his opposing Affidavit that being a shareholder in the 2nd Respondent did not serve to negative the fact that he and the Appellant, were distinct and separate legal entities from the 2nd Respondent. 3.8 For its part, the Appellant deposed, via its own opposing Affidavit which was sworn and filed on its behalf by one Sandipan Kanjilal that, sometime in the year 2002, the Appellant retrenched all its employees and paid them their respective terminal or retrenchment dues. This decision was taken for financial and commercial reasons. 3.9 The deponent further deposed in his affidavit that, following J9 its decision and exercise as alluded to above, the Appellant decided to outsource all its operations by engaging various companies as independent contractors to undertake its operational activities such as security, laundry, cleaning as well as catering services., These service^ were outsourcpd by the Appellant on a need basis from different companies, including the 2nd Respondent, and that such services were duly paid for upon the service providers rendering their respective invoices. 3.10 Sandipan Kanjilal also deposed in his Affidavit that on 9th February, 2004, the Appellant terminated the contract which it had entered into with the 2nd Respondent. The deponent also confirmed that, contrary to the assertion which had been made on behalf of the 1st Respondents, none of them (i.e. the 1st Respondents) had been employed by the appellant. He further confirmed, pointing to various documents which were exhibited to his Affidavit, that at no time did the Appellant assume the responsibility of settling NAPSA contributions on behalf of the 1st Respondents or, indeed, any one of them. 3.11 The Appellant’s witness also confirmed that not only was the J10 2nd Respondent not a subsidiary of the Appellant but that, Harry Vaiden Findlay, who had been a common shareholder in the two companies at some point, ceased to be a director and shareholder in the 2nd Respondent on or about 18th , September, 2002. , , , 3.12 In the Skeleton Arguments which were filed on behalf of the appellant, it was contended, based on established case law such as the Zambian case of Associated Chemicals Limited v. Hill and Delamain Zambia Limited & Ellis & Co.1 which followed the English case of Salomon V. Salomon2 that the 2nd Respondent and the Appellant existed as distinct and separate legal entities. 3.13 It was also contended on behalf of the Appellant that the 1st Respondents had admitted, via the Affidavit which had been filed on their behalf, that they were employed by the 2nd Respondent while the latter neither denied nor disputed the said fact. 3.14 It was further contended on behalf of the Appellant, on the basis of our decision in Mike Hamusonde Mweemba v. Jll Kamfwa Obote Kasongo and Zambia State Insurance Corporation Limited3, that before a party can be joined to a suit on the basis of Order 14 Rule 5 of the High Court Rules, . Chapter 27, it should appear to the court that such a party is “... entitled to” or can “... claim some share or interest in the sybject matter of [he suit or [would] be likely to bp affected by the result [of the suit]”. 3.15 In relation to the Appellant and Harry Vaiden Findlay, counsel for the Appellant contended that none of what Order 14 Rule 5 of the High Court Rules, Chapter 27 contemplates was likely to arise. Counsel accordingly submitted that the joinder application was both unjustified and unwarranted. 4 .0 Lower Court’s Ruling on Joinder 4.1 As we noted at the beginning of this judgment, the court below felt persuaded to grant the joinder application as against the appellant on the basis of the reasoning which we earlier adverted to. 4.2 In arriving at its conclusion allowing the joinder application, the court below appears to have accepted the 1st Respondents’ contention that the Appellant had been settling NAPSA J12 contributions on behalf of the 1st Respondents. The court also appears to have accepted that Mr. Findlay owned majority shares in both the Appellant as well as the 2nd Respondent. 4.3 The lower court also considered that granting the application in question was consistent with its primary mandate of • • • • dispensing substantial justice as enjoined by the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. In this regard, the court below was of the considered view that the [1st Respondents] had shown sufficient cause to justify having the Appellant joined as a party to the matter. 4.4 The lower court felt fortified in taking the position it had taken on the basis of what it had expressed to be the Appellant’s failure to deny the 1st Respondents’ assertion that the former had been paying the latter’s wages. 4.5 Citing our decision in Zambia Consolidated Copper Mines Limited (ZCCM) Limited v. Richard Kangwa & Others4, the court below observed that the assigning of duties to the 1st Respondents and settlement of their wages by the Appellant meant that the Appellant and the 2nd Respondent were engaged in activities of co-operation akin to what Ndola Lime J13 Company Limited and ZCCM Limited4 had been engaged in and which led to the court’s conclusion in the ZCCM Limited4 case that the two companies, although existing as separate legal entities, were operating as one economic entity. 5 .0 The Appeal and Grounds Therefor 5.1 The Appellant was completely gutted by the Rbling of the court below and has now appealed to this Court on the basis of five (05) grounds which have been packaged in the Memorandum of Appeal in the following terms: “5.1.1 That the learned Judge and Members in the Court below misdirected themselves in law and in fact, by holding that there was a connection between the 1st Respondent and the appellant despite making a finding that the 1st Respondent was hired by the 2nd Respondent; erred in substantiating their finding of the Appellant’s involvement with reference to the case of Zambia Consolidated Copper Mines Limited v. Richard Kangwa and Others (2002) when in fact there was no legal basis for the court’s inference of such connection whether in light of the aforesaid case or otherwise. 5.1.2 That the learned Judge and Members in the Court below misdirected themselves in law and in fact, by holding that there was assigning of duties to the 1st Respondent and payment of wages by the Appellant, therefore activities of co­ operation between the 2nd Respondent and the Appellant, akin to the case of Zambia Consolidated Copper Mines J14 Limited v. Richard Kangwa and Others (2002) as such being legal basis and merit for the joinder of the Appellant to the proceedings, when in, fact there is no evidence to that effect and no legal basis for holding that the circumstances were akin to those in the case aforesaid. 5.1.3 That the learned Judge and Members in the Court below misdirected themselves in law and in fact, in failing to consider the evidence adduced by the Appellant in denying that it employed the 1st Respondents and documentary evidence in support thereof as per exhibits marked “SK6” to “SK12” contained in the Appellant’s Affidavit in Opposition to the application for joinder, and completely disregarding the 1st Respondent’s specific confirmation in paragraph 4 of the Affidavit in Support of their application for joinder of their employment by the 2nd Respondent, but nevertheless holding that the Appellant be made a party to the Complaint. When such holding is contrary to and outside the scope or jurisdiction of the Court below in light of Section 85 of the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. 5.1.4 That the learned Judge and Members in the Court below, misdirected themselves in law and in fact in holding firstly that the paragraph of the 1st Respondent’s Affidavit in Support containing exhibit marked ‘DC1’ was not challenged by the appellant and secondly that the aforesaid exhibit ‘DC1’ effectively established that the Appellant employed the 1st Respondents, therefore ought to be made a party to the proceedings. This is contrary to the evidence on record which will clearly show that the Appellant denied the aforesaid allegation, moreover exhibit ‘DC1’ cannot be considered as proof that the 1st Respondents were employed J15 by the Appellant or given any legal relevance or basis for such employment relationship. 5.1.5 That the learned Judge and Members in the Court below, misdirected themselves in law and in fact in holding that , there was no injustice in joining the appellant to the proceedings, when in fact the Appellant would clearly suffer injustice in incurring further costs in defending proceedings and participating further without any legal basis for its joinder thereto.” 6 .0 Arguments Canvassed on Appeal At the hearing of the appeal, the respective counsel for the two sides to the contest confirmed having filed their respective Heads of Argument upon which they anchored the positions which they have respectively taken in the appeal. The two learned counsel also briefly augmented their respective Arguments. 6.1 The Appellant’s Arguments 6.1.1 For her part, Mrs. Findlay, learned counsel for the Appellant argued grounds one, two and four together. 6.1.2 The gist of the Appellant’s counsel’s arguments under the grounds which we have momentarily identified above was that the lower court erred in law and in fact by having reached the conclusion that the nature of the dealings J16 between the Appellant and the 2nd Respondent had pointed to the existence of one economic entity and that this status « « « « had rendered the 1st Respondents factually and legally accountable to this single economic entity. • 6.1.3 The Appellant’s counsel further contended in her arguments a • • i • that, contrary to the conclusion which the lower court had reached, the appellant neither settled the contributions on behalf of the 1st Respondents nor did it directly settle their wages. 6.1.4 According to the Appellant’s counsel, the legal relationship that had subsisted between the 2nd Respondent and the Appellant was that of a service provider and client and that the latter was in no contractual relationship with the 1st Respondents who, at all material times, were and had remained employees of the 2nd Respondent. 6.1.5 Having regard to the matters in paragraph 6.1.4, it was the 2nd Respondent and not the Appellant who had been settling the said employees’ wages as well as meeting the arising NAPSA contributions. T 6.1.6 The Appellant’s counsel also complained that the lower court J17 had drawn wrong inferences and reached flawed conclusions which rendered the inferences and conclusions amenable to interference by this superior court on the basis of the principles which we formulated in Nkhata & four Others v. , Attorney General5. . , . 6.1.7 The Appellant’s counsel also criticized the court below for having allegedly misapprehended and misapplied the avowed notion that the court below is a court of substantial justice when, in effect, that court had adopted a view of the evidence before it which was only favourable to the 1st Respondents. 6.1.8 According to the learned counsel, the duty to dispense substantial justice which the statute reposes in the lower court demands that such justice is enjoyed by all that seek to secure the services of that court. To support this proposition, learned counsel cited the case of Edward Chileshe v. Zambia Consolidated Copper Mines Limited6 where we said: » J18 “The substantial justice [which] the statute calls upon the Industrial Relations Court to dispense should endure for the , benefit of both sides...” , , 6.1.9 Mrs. Findlay, learned counsel for the Appellant also drew our attention to our later decision in Roston Mwansa v. NFC Africa Mining PLC7 which reinforced the notion that the I • • • • adjudicative mandate to do substantial justice which statute assigns to the court below and which we had earlier espoused in Chileshe6 applies to the two sides to any dispute that is brought before that court. 6.1.10 With regard to the lower court’s treatment of the Appellant and the 2nd Respondent as having existed and operated as a single economic entity, and the lower court’s reliance upon our decision in Zambia Consolidated Copper Mines Limited v. Richard Kangwa and Others4 to support the position it had taken, learned counsel submitted that the court below fell in serious error. This criticism of the lower court by counsel was premised on her contention that the holding and subsidiary company relationship which had informed the conclusions in the Zambia Consolidated Copper Mines/Kangwa4 case did not exist in the context of the relationship between the Appellant and the 2nd J19 Respondent. 6.1.11 With regard to the lower court’s holding that no injustice would be occasioned by having the Appellant joined to the proceedings in the court below, the appellant’s counsel I contended, under ground 5, that, contrary to the lower • • • court’s misdirected view, real injustice and prejudice would be occasioned to the appellant if it were joined to the proceedings in question under the circumstances which counsel earlier articulated. 6.1.12 In her brief oral augmentation, Mrs. Findlay indicated that one aspect of the lower court’s judgment which she wished to highlight was that the court ignored all the evidence which the appellant adduced when it opposed the joinder application. In particular, counsel argued that the lower court made no reference to either the appellant’s opposing Affidavit or the exhibits to that Affidavit. 6.1.13 According to the appellant’s counsel, as a result of the matters adverted to in paragraph 6.12, the lower court’s J20 conclusions in its judgment were entirely based on the 1st « respondents’ evidence. « « t * 6.1.14 With regard to NAPSA contributions, counsel reiterated the contention that NAPSA itself had confirmed, in writing, who the 1st Respondents’ employer was. 6.1.15 On the basis of the totality of her arguments, counsel for the appellant invited us to allow the appellant’s appeal. 7 .0 The Respondents’ Arguments 7.1 As earlier noted, Mr. Mulenga, learned counsel for the 1st Respondents, also confirmed having filed written Arguments which he briefly augmented at the hearing of the appeal. 7.2 In his written Arguments, Mr. Mulenga argued the first two grounds together and opened the same by submitting that the lower court was on firm ground when it drew inspiration from our decision in Zambia Consolidated Copper Mines Limited v. Richard Kangwa and Others4 and came to the conclusion that the Appellant and the 2nd Respondent were operating as one economic entity. ' ' J21 ' 7.3 According to counsel, the Appellant and the 2nd Respondent were acting as one and the same company and that this fact * * *, *1 1 > was borne out through the manner in which employees’ . salaries were being paid,. To reinforce this proposition, counsel drew our attention to Black’s Lata Dictionary, 8th edition, which defines an employer as ‘a person p>ho controls and directs a worker under an express or implied contract of hire and who pays the worker’s salary or wages. ’ 7.4 With respect to the 3rd ground of appeal, the 1st Respondents’ counsel argued that the Appellant was paying NAPSA contributions on behalf of the 1st Respondents and that it was the Appellant who was also responsible for assigning the 1st Respondents with their tasks at the Appellant’s hotel where the 1st Respondents were working from. 7.5 Under ground 4, counsel for the respondents argued that, as one of the 1st respondents’ pay slips reflected the Appellant’s name, the lower court’s decision to treat the appellant as having been the 1st Respondents’ employer could not be faulted. ' ' J22 ' 7.6 With regard to the 5th and last grounds of appeal, the 1st respondents’ counsel maintained that the lower court did not « « * * « err when it joined the Appellant to the pending cause in the , court below. , , . 7.7 According to learned counsel, no injustice was occasioned • • • • by having the appellant joined to the cause in the manner and under the circumstances that it was. Counsel accordingly concluded his arguments by urging us to uphold the lower court. 8.1 We have examined the Ruling of the Court below in relation to the arguments which were canvassed before us by counsel for the two protagonists involved and are indebted to both counsel for their respective exertions which, needless to say, we have found both useful and helpful. 8.2 Having regard to the conclusions which we have reached in this judgment upon the core issues which have arisen in this appeal, we have felt disposed to approach the arguments which counsel placed before us holistically. 8.3 We must note, from the outset, that the application whose J23 outcome was escalated to this Court was founded on Rule 32 of The Industrial Relations Court Rules, Chapter 269 of the Laws of Zambia which provides as follows: • “The Court may, on the application of any person or of its • I • • • own motion, direct that any person not already a party to proceedings be added as a party or that any party to the proceedings shall cease to be a party”. 8.4 In contrast to a like provision (Rule 14) in the High Court Rules, High Court Act, CAP.27, which suggests who can be joined to proceedings (namely, a ‘person entitled’ to or who claims some share or interest in, the subject matter of a suit or who may be likely to be affected by the result of such proceedings), it is not apparent from Rule 32 of the Industrial Relations Court Rules, CAP. 269 as to which person is intended to be targeted by this Rule. 8.5 Notwithstanding the inert want of clarity which we have suggested in the preceding paragraph, Rule 32 could not have been intended to extend to any person, no matter how remotely connected such a person can be to the proceedings in question. This, indeed, is evident from the fact that the ' ’ J24 Rule in question can also be invoked for the purpose of disjoining or securing the cessation of a person who had been * * * *. unjustifiably made a party to a matter from being such a party. . . . 8.6 Turning to the matter at hand, and avoiding any needless • • • • • disquisition, the 1st Respondents (complainants in the court below) confirmed in the Court below that they were employed by the 2nd Respondent and no evidence was adduced in that Court to demonstrate that this employment relationship determined or that the 1st Respondents had somehow become employees of the Appellant. 8.7 The unchallenged evidence which was placed before the court below was also to the effect that the 2nd Respondent was a sub-contractor to the Appellant. The relevant contract, which had designated the Appellant as ‘the owner’ while the 2nd respondent was designated as ‘the contractor’, contained the following clauses, among others: “INDEPENDENT CONTRACTOR AGREEMENT THIS AGREEMENT IS MADE the FIRST day of OCTOBER 2002. BETWEEN: J25 (1) CHRISMAR HOTEL LIMITED (the “Owner”) and (2) RELIABLE SERVICES LIMITED (the “'contractor”) WHEREAS: (A) The owner operates a business at Chrismar Hotel, Los Angeles Boulevard, and wishes to have certain services performed at the business premises.' ' (B) The Contractor agrees to perform these services under the terms and conditions set forth in this agreement. . NOWIT IS HEREBY AGREED as follows: 1. Description of work: In return for the payment agreed hereunder the Contractor will perform the following services at the business premises of the owner. ■ To provide security personnel who will be responsible for all services related to the security of all car parks as well as premises in general. ■ To provide kitchen/service/ waiters/bar service personnel responsible for the preparation of all internal and external catering as well as other function related to the services offered by the business: ■ To provide personnel who will attend to the cleaning of all public areas as well as rooms and offices at the business premises. 2. Payment: The Owner will pay the Contractor the sum of Zambian Kwacha as and when invoices relating to the services provided and performed, subject to verification, as and when such invoices are J26 raised at the rate agreed contained in the schedule of rating attached. 3. Relationship _ of the Parties: This agreement creates an independent contractor-owner relationship. The Owner is interested only in the results achieved. The Contractor is solely ' responsible for the conduct and control of the work. The Contractor is not an agent or employee of the Owner for any purpose. Employees of the Contractor are not entitled to any benefits that । the Owner provides to the Owner’s employees. This is not an exclusive agreement. Both parties are free to contract with other parties for similar services. ” 8.8 It is self-evident from the provisions of the contract which have been set out above that the 1st Respondents were employees of the 2nd Respondent who were required to discharge their duties at the Appellant’s hotel. The contract in question made it very clear that the 1st Respondents were to remain employees of the 2nd Respondent while the 2nd Respondent was neither an employee nor an agent of the Appellant. 8.9 The learned editors of Chitty on Contracts, Volume 2, (2004: Sweet & Maxwell: London) have stated, at paragraph 39-059 of this celebrated practitioners’ text that: "Acceptance of employment with one employer implies an obligation not to work for another so long as the first employment continues.” 1« ' ' J27 ' ' 8.10 The same jurists have stated, at paragraph 39-015 of the same text, that: * * 1, * 1 “An employee may remain in a relationship of employment with his employer despite the fact that the employer has placed the employee temporarily under the control of another person (e.g. an independent contractor). ... The temporary , transfer of an employee ... dqes not normally, result in a transfer of a contract of employment away from the original employer who may ... be estopped from denying that he is the employer where no formal transfer has been agreed with the employee.” 8.11 The two crucial meanings of the messages which we are getting from the authoritative passages which we have quoted above is, firstly, that it was legally not possible for the 1st Respondents to have become employees of the Appellant during the subsistence of their contract of employment with the 2nd Respondent and; secondly, the fact that the 1st Respondents had been required to perform their duties at the appellant’s hotel and, in this sense, had been placed under the control of the Appellant, did not entail a legal transfer of the contract of employment which had been subsisting between the 1st Respondents and the 2nd Respondent. 1 .« r I ' ' J28 ' ' 8.12 With regard to the 1st Respondents’ allegation that the appellant had been paying them their wages, we noted from the record that this claim by the 1st Respondents is founded on the pay slips which they produced in evidence. . 8.13 We examined the four pay slips which the 1st Respondents I • • • produced and relied upon and noted that the two payslips dated August, 2001 and April, 2002 in the names of Chambawilo Ditton and Njovu Evaristo respectively arose prior to the execution of the sub-contract between the Appellant and the 2nd Respondent on 1st October, 2002. As the appellant’s evidence revealed, the 1st Respondents had been employees of the Appellant prior to the execution of the sub-contract in question. It is hardly surprising, therefore, that the payslips in question bore the Appellant’s name. 8.14 Quite connected to the matters in the preceding paragraph was the fact that the two other payslips in the names of Chambawilo Ditton and Mbewe Lemmy and dated February, 2004 respectively which the 1st Respondents had relied upon for the purpose of championing their collective grievance • • • ■ ' ' J29 ' arose after the execution of the sub-contract in question and, unsurprisingly, bore the 2nd Respondent’s name. 8.15 With regard to the issue of NAPSA contributions, quite clearly, the 1st Respondents appear to have been engaging in pure mischief by insisting that they had been employees of the Appellant when the unimpeachable evidence from NAPSA itself was to the effect that it was the 2nd respondent who had been the 1st Respondents’employer. 8.16 We must also make it very clear that the analogy which counsel for the 1st Respondent sought to draw between the circumstances of this matter and what transpired in Zambia Consolidated Copper Mines Limited v. Richard Kangwa and Others4 was totally misconceived as counsel for the Appellant demonstrated in her arguments. 8.17 We must also record our disappointment over the lower court’s reasoning to the effect that having the Appellant joined as a party to the matter in the court below was necessary in order to afford the Appellant an opportunity to "... conclusively prove its claim of [being irrelevant] to this cause during the hearing of the main matter. ” * ' J30 ' ' 8.18 As counsel for the Appellant justifiably complained through one of the Appellant’s grounds of appeal, why was the * *, *, *, *, appellant to be subjected to the trouble, cost and inconvenience of going through a trial just.for the purpose of having it 'prove’ its irrelevance to the proceedings? A party cannot, even under the thin gpise of doing ‘substantial justice’ properly be subjected to all the cost, trouble and inconvenience of litigation just for the purpose of demonstrating the correctness or otherwise of joining them to a cause to which they otherwise have no sensible or viable connection. For the avoidance of doubt, and, as the authorities earlier cited demonstrate, the ‘substantial justice’ IRC mantra cuts both ways: it has to serve the interests of both sides to the dispute. 8.19 This appeal was bound to succeed. And it does. We, however, reluctantly refrain from pronouncing any order as to costs even as we hereby set aside the lower court’s order on this score. y * ■ v ' ' ' J31 > - 8.20 The meaning and effect of this judgment is that it clears the way for the action which has been pending in the Court below to take its rightful course. DEPUTY CHIEF JUSTICE C. KAJIMANGA SUPREME COURT JUDGE M. MUSONDA, SC SUPREME COURT JUDGE