Airtel Seychelles Ltd v Pillay ((SCA 08/2025) [2025] (Arising in CA 09/2023 out of ET 21/2020) (18 August 2025)) [2025] SCCA 16 (18 August 2025)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2025] (18 August 2025) SCA 08/2025 (Arising in CA 09/2023 out of ET 21/2020) Appellant Respondent In the Matter Between Airtel Seychelles Ltd (rep. by Mr. Kieran Shah) And Anniesha Pillay (rep. by Ms. Amanda Faure) Neutral Citation: Airtel Seychelles Ltd v Pillay (SCA 08/2025) [2025] (Arising in CA 09/2023 Before: Summary: Heard: Delivered: out of ET 21/2020) (18 August 2025) Twomey-Woods, Robinson, Andre, JJA Questions of procedure — Employment matter — Supreme Court in the exercise of its appellate jurisdiction — Case remitted to Employment Tribunal for computation of salaries payable to Respondent by Appellant — Whether appeal lies to Court of Appeal from decision of Employment Tribunal on computation of salaries — Whether notice of appeal lodged ran afoul of rule 18 (1) of The Court of Appeal of Seychelles Rules 2023 — Constitution of the Republic of Seychelles, articles 119, 120 (1) and (2) and 137; Courts Act section 12 (1); Employment Act, section 73A, paragraph 4 of Schedule 6; The Court of Appeal of Seychelles Rules 2023, rules 18 (1) and 26 6 August 2025 18 August 2025 (i) The notice of appeal lodged on the 21 March 2025 is struck out. ORDER (ii) Consequently, the appeal stands dismissed. (iii) With costs in favour of the Respondent. ______________________________________________________________________________ ______________________________________________________________________________ JUDGMENT Robinson JA (Twomey-Woods, Andre, JJA (concurring)) 1. The questions which arise for determination on this appeal are as follows — (a) whether the Court of Appeal has the jurisdiction to hear and determine the appeal from a decision of the Employment Tribunal; and (b) whether the notice of appeal lodged on the 21 March 2025 ran afoul of rule 18 (1) of The Court of Appeal of Seychelles Rules 2023, which stipulates: " [e]very appeal shall be brought by notice in writing (hereinafter called "the notice of appeal") by the appellant which shall be lodged with the Registrar of the Supreme Court within thirty days of the decision appealed against". 2. The Appellant is the former employer of the Respondent, who was employed as an "account payable accountant" from the 10 June 2019 to the 31 January 2020. She earned a monthly salary of SCR17,000. 3. The Respondent initiated the grievance procedure with the competent officer under the Employment Act due to what she claimed was an unjustified termination of her employment. According to exhibit A2, a letter dated 31 January 2020, from the Appellant to the Respondent, titled "Ref: Instant Dismissal for Gross Misconduct", the Respondent's employment was terminated because of "the criminal nature of the allegations being brought against [the Respondent] i.e. theft of company property[…]." 4. The Respondent filed a claim in the Employment Tribunal on the 4 June 2020, after the competent officer was unable to mediate her grievance successfully. In the said claim, she sought reinstatement without loss of earnings and a compensatory award equivalent to three months' salary. 5. The Employment Tribunal delivered a judgment on the 28 April 2023 in favour of the Respondent and held that the termination of her employment was unjustified. As a result, the Employment Tribunal made the following orders — "i. ii. iii. iv. v. vi. Salaries from 1st February 2020 until 28th April 2023 in the sum of SCR661,692.70/-; Annual leave from 1st February 2020 until 28th April 2023 in the sum of SCR44,013.71/-; Compensation for length of service 10th June 2019 until 28th April 2023 in the sum of SCR30,082.16/-; Notice in the sum of SCR17,000.00/-; Public Holiday from 1st February 2020 until 28th April 2023 in the sum of SCR17,261.97/-; 13th month salaries for the years 2020 and 2021 and 50% for the year 2022 in the sum of SCR42,500.00/-." 6. The Employment Tribunal issued another order on the 30 June 2023, after reviewing additional evidence and submissions provided by the Appellant. The order is in the following terms — "After analysing the Exhibit R14 being the bank statement of the Applicant, the sum of SCR88,644.65 shall be subtracted from the total sum awarded, this money being sums earned by the Respondent as income during the period of the unlawful termination with alternative employers. The total sum, therefore, awarded to the Applicant is SCR723,905.89. The parties have 14 days to appeal our decision if they are unsatisfied." [Emphasis is mine] 7. The Appellant lodged a notice of appeal in the Supreme Court (CA No. 9 of 2023) on the 12 July 2023, against the decision of the Employment Tribunal. The Appellant lodged a memorandum of appeal on the 31 January 2024, which included inter alia its grounds of appeal against the Employment Tribunal's decision. It is unnecessary to reproduce the detailed grounds of the appeal. Suffice it to state that grounds 1, 2, 3 and 4 challenged the quantum of the award made by the Employment Tribunal. Ground 5 of the appeal challenged the finding of the Employment Tribunal that the termination of the Respondent's employment was unjustified in the circumstances. 8. After carefully considering the record of appeal and the arguments presented by the Appellant and Respondent through their respective Counsel, the learned Judge determined that the termination of the Respondent's employment was unjustified in the circumstances. As a result, the learned Judge upheld the decision of the Employment Tribunal that the termination was unjustified and dismissed ground 5 of the appeal. The learned Judge allowed the appeal for grounds 1, 2, 3 and 4 and remitted the case to the Employment Tribunal to compute the award of salaries payable to the Respondent by the Appellant. 9. On the 10 February 2025, the Employment Tribunal issued its decision with respect to the award of salaries for the period from February 2020 to 28 April 2023. The amount awarded was adjusted from SCR661,692.70 to SCR573,048.05. The details of this adjustment are as follows — (a) for the period from February 2020 to March 2023, which covered thirty-eight months, the Employment Tribunal made an award amounting to SCR646,000 calculated as follows: 38 months x SCR17,000 = SCR646,000; (b) for the period from 1 April 2023 to 28 April 2023, which covered twenty days, the Employment Tribunal made an award amounting to SCR15,692.70, calculated as follows: 20 days x 8.5 x SCR92.31 = SCR15,692.70. 10. Dissatisfied with the judgment of the learned Judge and the decision of the Employment Tribunal, the Appellant lodged the notice of appeal on the 21 March 2025, challenging the judgment of the Supreme Court delivered on the 18 November 2024, made in the exercise of its appellate jurisdiction (CA No. 9 of 2023). The same notice of appeal also challenged the decision of the Employment Tribunal (ET21 of 2020) issued on the 10 February 2025. 11. The notice of appeal stated, in part — "I. TAKE NOTICE that the Appellant being dissatisfied with the decision of the Supreme Court of Seychelles (Her Ladyship Madeleine J), in Civil Side No. 09 of 2023 arising in an appeal against the decision of the Employment Tribunal in ET21/2020 delivered on 18th November 2024, and remitted to the Employment Tribunal for computation handed down on the 10th February 2025 in the sum of SCR 573,048.05 hereby appeal to the Seychelles Court of Appeal against part of the decision on the grounds set out in paragraph 2 and will at the hearing of the appeal seek the relief set out in paragraph 3. And the Appellant further states that the name and address of the person directly affected by the appeal is set out in paragraph 4. II. GROUNDS OF APPEAL 1. 2.a) The Learned Judge was in error in allowing salaries to be paid up to the date of the Tribunal's decision and not allowing for the delay of 18 months in total caused and occasioned by the absence of the Respondent for the hearing and in consequence, the Respondent unjustly fully benefited to the Appellant's detriment. The Employment Tribunal Computation of the sum payable to the Respondent failed to comply with the Learned Judge's direction in allowing SCR 88,644.65 as salaries the Respondent earned when the correct figure should have been SCR 257,930.70. b) The Learned Judge was in error to hold that consultancy fees of SCR 20,000/- the Respondent earned should be disregarded in the computation, as it was income received during the relevant period. 3. The Learned Judge was in error in relying on the date of the judgment of the Tribunal as the date of lawful termination of employment, in disregarding that under the Employment legislation, the Respondent having been in continuous employment for 6 months or more with another employer is confirmed in that employment by operation of law and therefore should become the date of lawful termination of employment for the purpose of calculating salaries." 12. By way of reliefs, the Appellant prayed the Court to — "a) [a]llow the appeal and reduce the sum payable to the Respondent; b) or alternatively, remit to the Employment Tribunal to calculate the sum payable in accordance with the Court's decision. c) [w]ith costs." Analysis of the contentions of the parties on the preliminary points of law 13. The Court raised the question of whether the Court of Appeal has the jurisdiction to hear and determine the appeal from the Employment Tribunal. It is noted that the Supreme Court remitted the case to the Employment Tribunal to compute the salaries payable to the Respondent. Counsel for the Respondent presented a preliminary point in her skeleton heads of argument, arguing that the notice of appeal was not lodged within thirty days of the judgment of the Supreme Court. She contended that this failure ran afoul of rule 18 (1) of The Court of Appeal of Seychelles Rules 2023. The two issues are considered together as they are interrelated. 14. Counsel for the Appellant argued that the Court of Appeal has the jurisdiction to hear and determine the appeal. He emphasised that the Appellant's appeal lies from the Supreme Court to the Court of Appeal. To support these arguments, Counsel for the Appellant argued that the decision of the Employment Tribunal computing the salaries did not constitute a decision of the Employment Tribunal. Rather, he argued that it constituted a decision of the Supreme Court, as the case was remitted to the Employment Tribunal by the Supreme Court to compute the salaries payable to the Respondent by the Appellant. 15. Furthermore, Counsel for the Appellant argued that the judgment delivered by the Supreme Court became final on the 10 February 2025, when the Employment Tribunal issued its decision with respect to the computation, rather than on the 18 November 2024, when the Supreme Court delivered its judgment. Consequently, Counsel for the Appellant argued that the notice of appeal was lodged within thirty days of the Supreme Court's judgment, under rule 18 (1) of The Court of Appeal of Seychelles Rules 2023. He stated that the date when the Employment Tribunal issued its decision – the 10 February 2025 – is the date to be used for the purpose of rule 18(1). 16. I state at the outset that there is no inherent right of appeal; a statutory basis for a right of appeal must be demonstrated. This principle is stated in Halsbury's Laws of England Fourth Edition Reissue 1(1) Administrative Law Admiralty at para 57. Appeal and Review at page 84: "[a] right of appeal to a court or tribunal is a creature of statute: there is no inherent right of appeal" [Emphasis is mine]. The following authorities apply the aforesaid principle: Tony Lablache and Another v Josianne Vital SCA No. 26 of 2023, dated 3 May 2024, Adrienne v Shelly Beach Properties Ltd SCA No. 10 of 1999, dated 17 December 1999, Tresfle Finesse v The Republic Criminal Appeal No. 1 of 1995, dated 19 October 1995 and Cono Cono and Co Ltd v. Veerasamy and Others [2017] UKPC 11, dated 8 May 2017, an appeal to the Privy Council from the Supreme Court of Mauritius, which was quoted with approval in Tony Lablache and Another, supra. See also R v Cashiobury Hundred Justices (1823) 3 Dow & Ry KB 35, Rv Income Tax Special Purposes Comrs (1888) 21 QBD 313 at 319, CA and Healey v Minister of Health [1955] 1 QB 221, [1954] 3 ALL ER 449, CA. 17. I set out the relevant provisions of the written law of Seychelles relevant to the determination of the preliminary points of law. 18. Article 119 of the Constitution of the Republic of Seychelles vests the judicial power of Seychelles in the Court of Appeal, the Supreme Court and such other subordinate courts or tribunals established pursuant to article 137 of the Constitution of the Republic of Seychelles. In the case of Attorney-General v Tan Boon Poo SCA No. 1 of of 2005, dated 25 November 2005, the Court of Appeal held that the Supreme Court is not an inferior court, nor is it a court of limited jurisdiction. Under article 137 of the Constitution of the Republic of Seychelles, "Acts" may establish courts or tribunals, which are subordinate to the Court of Appeal and Supreme Court, and define or provide for the definition of the jurisdiction and powers of the subordinate courts and tribunals, inter alia. The Employment Tribunal is an inferior court or a subordinate court established under the Employment Act. 19. Article 120 (1) of the Constitution of the Republic of Seychelles provides the general jurisdiction of the Court of Appeal to hear and determine appeals from the Supreme Court in the following terms — "(1) [t]here shall be a Court of Appeal which shall, subject to this Constitution, have jurisdiction to hear and determine appeals from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court and such other appellate jurisdiction as may be conferred upon the Court of Appeal by this Constitution and by or under an Act. 20. Article 120 (2) confers a general right of appeal, in the following terms — [e]xcept as this Constitution or an Act otherwise provides, there shall be "(2) a right of appeal to the Court of Appeal from a judgment, direction, decision, declaration, decree, writ or order of the Supreme Court." [Emphasis is mine] 21. Section 12 (1) of the Courts Act stipulates: "(1) [s]ubject as otherwise provided in this Act or in any other law, the Court of Appeal shall in civil matters, have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court given or made in its original or apellate jurisdiction." [Emphasis is mine] 22. Under article 125 of the Constitution of the Republic of Seychelles, the Supreme Court has original and supervisory jurisdiction and such other original, appellate and other jurisdiction as may be conferred on it by or under an Act. 23. The relevant provisions from the Employment Act are as follows. Section 73A stipulates — "(1) [t]here is hereby established a Tribunal which shall be known as the Employment Tribunal. (2) Schedule 6 has effect with respect to the Employment Tribunal, its composition, jurisdiction, powers and otherwise." 24. Paragraph (4) of Schedule 6 to the Employment Act confers jurisdiction upon the Supreme Court to hear and determine appeals from the Employment Tribunal, in the following terms — "[a]ny person against whom judgment has been given by the Tribunal may appeal to the Supreme Court subject to the same conditions as appeals from a decision of the Magistrates' Court." [Emphasis is mine] 25. I have carefully considered the arguments presented by Counsel for the Appellant and the skeleton heads of argument submitted on behalf of the Respondent. The arguments presented by Counsel for the Appellant face several challenges, which I will explain. 26. The judgment delivered by the Supreme Court in the exercise of its appellate jurisdiction remitted the matter to the Employment Tribunal, an inferior court, to compute the salaries payable to the Respondent by the Appellant. The learned Judge made an order at paragraph [65] of the judgment as follows: "[65] I allow the appeal under grounds 1, 2, 3 and 4 and remit the matter to the Employment Tribunal to compute the award in accordance with this judgment". [Emphasis is mine] 27. The main argument presented by Counsel for the Appellant is that the decision of the Employment Tribunal on the computation of the salaries payable to the Respondent constituted the decision of the Supreme Court. It appears that Counsel for the Appellant is arguing that the proceedings remained in the Supreme Court, despite the matter concerning the computation of salaries having been remitted to the Employment Tribunal. 28. I find no merit in the argument presented by Counsel for the Appellant. In my view, considering the relevant provisions of the law cited above, the jurisdiction of the Supreme Court ceased entirely when it delivered the judgment on the 18 November 2024. The learned Judge was functus officio when the judgment was delivered and signed. Consequently, when the matter concerning the computation of the salaries payable to the Respondent by the Appellant was remitted to, heard and determined by the Employment Tribunal, it had full jurisdiction over the matter. 29. For the reasons stated above, I hold the view that the Court of Appeal has no jurisdiction to entertain the appeal dealing with the order of the Employment Tribunal concerning the computation of salaries payable to the Respondent by the Appellant. In the notice of appeal, ground 2 (a) questioned the computation of the salaries payable to the Respondent by the Appellant, as delivered by the Employment Tribunal on the 10 February 2024. There is no statutory right of appeal from the Employment Tribunal to the Court of Appeal. 30. Savoy Development Limited v Salum SCA No. 19 of 2023, dated 18 December 2023, demonstrates that an appeal lies to the Supreme Court from a decision made by the Employment Tribunal, even if the matter has been remitted to it. Savoy Development Limited considered an appeal against the decision of the Supreme Court in the exercise of its appellate jurisdiction with respect to an employment matter, CA No. 6 of 2022. The facts of the case are not relevant to this appeal. 31. On the 17 December 2021, in its judgment SCA No. 10 of 2021, the Court of Appeal remitted the case to the Employment Tribunal to calculate the benefits payable to the respondent by the appellant. The Employment Tribunal issued its ruling (ET 183 of 2018 and ET 185 of 2018) on the 21 January 2022. The appellant appealed the 9