Chambawilo and Ors v Reliable Service Provider Ltd and Anor (SCZ Judgement 5 of 2009) [2009] ZMSC 163 (26 February 2009)

JI (78) SCZ JUDGMENT NO. 5 OF 2009 APPEAL NO. 80 OF 2006 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: DITTON CHAMBAWILO AND 61 OTHERS APPELLANTS AND RELIABLE SERVICE PROVIDER LIMITED Ist RESPONDENT CHRISMAR HOTEL LIMITED 2nd RESPONDENT CORAM: LEWANIKA, (Late) DCJ, CHITENGI AND SILOMBA, JJS. On 17th July, 2007 and 26th February, 2009. For the Appellants: For the Respondent: Not Present. Mr. K. Mulenga, Kumasonde Chambers JUDGMENT SILOMBA, JS, delivered the judgment of the Court. At the outset, we wish to say that when we heard the appeal the Hon. Deputy Chief Justice, Mr. Justice David Lewanika, was a member of the panel as the presiding Judge. He passed on when the judgment in this appeal was not ready for delivery and so this judgment is by the majority. J2 (79) This appeal is against the ruling of the learned Deputy Chairperson of the Industrial Relations Court (IRC) dated the 6th of April, 2006. In the aforesaid ruling, the learned Deputy Chairperson set aside the order of the learned Registrar of the IRC to join Chrismar Hotel Limited as a party to the proceedings. The record of the proceedings in the IRC shows that on the 12th of August, 2005 the appellants filed a complaint with the court pursuant to Section 85(4) of the Industrial and Labour Relations Act, Chapter 269 of the Laws. The complaint was against the 1st respondent for alleged failure to pay them service charges as provided for in Section 25(1) of the Hotels Act, Chapter 153 of the Laws. The claim was to cover the entire period the appellants were in employment up to the date they were retrenched. On the 18th of August, 2005, the appellants filed summons, with a supporting affidavit, for an order to amend the complaint so as to join Vaiden Harry Findlay as the second respondent and Chrismar Hotel Limited as the third respondent pursuant to Rule 32 of the Industrial Relations Court Rules. J3 (80) The application was opposed. The argument of the appellants, as advanced in their affidavit in support, was that although they were employed by the 1st respondent they were effectively employees of the second respondent; that in reality the two companies were owned by Vaiden Harry Findlay, as the majority shareholder. In opposition, the respondents asserted that the two companies were separate legal entities; that the 2nd respondent engaged the 1st respondent as an independent contractor to provide services and personnel in various areas of the business of the 2nd respondent. The application was heard by the learned Registrar of the IRC who, in her order of the 27th of January, 2006, granted the application for joinder of Chrismar Hotel Limited. The application for joinder of Vaiden Harry Findlay was refused on the ground that, as an individual, he could not employ an employee of a company. The appellants appealed to the learned Deputy Chairperson of the IRC who heard the appeal, sitting alone. As stated earlier, the learned Chairperson, after considering arguments from both sides, set aside the order of the learned Registrar and struck out Chrismar Hotel Limited from the proceedings. J4 (81) There were three grounds of appeal that were advanced before us on appeal. These were:- 1. That the Honourable Deputy Chairman, Industrial Relations Court erred in law and fact by holding that there is no doubt that it was never the intention of Chrismar Hotel Limited to enter into contract of employment either expressed or implied with the complainants (and) it follows that if there is no contract of any sort between the parties, there cannot be a contract of employment. 2. That the Honourable Deputy Chairman, Industrial Relations Court erred in law and fact by holding that in the main action the onus would still be on Chrismar Hotel Limited to pay the service charge upon production of invoices by Reliable Service Provider Limited relating to the same. 3. That the Honourable Deputy Chairman, Industrial Relations Court demonstrated her bias against the appellants' case by basing her ruling on authorities cited by the respondent. We have considered the grounds of appeal and the arguments that were advanced in the heads of argument of the appellants. Incidentally, the respondents did not file any heads of argument in response and there was no representation from them on the date the appeal was heard. In the view we hold of this appeal, we think that it will not be necessary to go through the only submission of the appellants because the issues raised in relation to the grounds of appeal and the proceedings in the court below are at variance with the law and J5 (82) procedure enshrined in Rule 32 of the Industrial Relations Court Rules under which the application for joinder was made. To give meaning to what we are about to say, we shall, first of all, reproduce Rule 34 which states as follows:- The court may, on the application of any person or of its own 32: motion, direct that any person not already a party to proceedings be added as a party, or that any party to proceedings shall cease to be a party, and in either case may give such consequential directions as it considers necessary.” Once reference is made to the word "court" either in the Rules of the IRC or in the body of the Industrial and Labour Relations Act, it cannot be a reference to the Registrar or Deputy Chairperson sitting alone. The use of the word court under Rule 32 (above quoted), must be understood to mean the Industrial Relations Court under Section 3(1) of the Industrial and Labour Relations Act, otherwise known as the interpretation clause. Further, under Section 89(2) of the same Act, the court shall, when hearing any matter, be duly constituted if it consists of three members or such uneven number as the Chairman may direct. Since the proceedings of the court are presided over either by the Chairman or Deputy Chairman it means that the uneven number of members constituting the . (S3) / court at any hearing shall include either the Chairman or Deputy Chairman with two or more lay members and the Chairman may direct. In the present case, we have found that the learned Registrar or indeed the learned Deputy Chairperson sitting alone did not have jurisdiction to deal with an application for joinder under Rule 32 of the Industrial Relations Court Rules. The appeal is allowed but for different reasons. Consequently, we order that an appropriate application for joinder be made before the IRC. We also order that the costs on appeal shall abide the outcome of the application for joinder. D. M. Lewanika, (Late), DEPUTY CHIEF JUSTICE SUPREME COURT JUDGE S. S. Silomba, SUPREME COURT JUDGE