Oceanic Motors (Pty) Ltd vs Savy (CA 25 of 2024) [2020] SCSC 921 (17 October 2020)

contents of #navigation-content will be placed in [data-offcanvas-body] for tablet/mobile screensize and #navigation-column for desktop screensize. Skip to document content Summary Table of contents Search null Esparon J Introduction 1. This is an Appeal from the decision of the Employment Tribunal given on the 24th September 2021. The Pleadings RULING 2. The memorandum of Appeal of the Appellant contains 7 grounds of Appeal namely; i) The Tribunal erred in law and facts when arriving to the conclusion that the Respondent was illegally terminated. ii) The Tribunal erred in law and the facts when it failed to take into consideration the Respondent was in employment shortly after leaving the Appellant's employment. iii) The Tribunal erred in law and facts when it arrived at a conclusion not pleaded by the Respondent. iv) The board erred in law and fact when coming to its final quantum. v) The board ened in law and facts when awarding compensation. vi) The learned magistrates erred when it failed to examine alternative solutions. vii) The board erred in not thoroughly considering the Appellants case. 3. The Respondent filed his reply to the Appeal and raised 3 points oflaw in his plea in Limine Litis name: i) The Notice of Appeal was filed on the 12thOctober 2021 against the decision of the Employment tribunal dated the 24th September 2021 and therefore filed outside of the fourteen day time limit prescribed by law and this Honourable Court should not entertain it. ii) The proceedings were served on the parties sometime in the end of Nove mberl early December 2021 and the memorandum of Appeal was filed on the 8thFebruary 2022 which is outside of the fourteen day time limit to file the memorandum of appeal and this Honourable COUli should not entertain it. iii) That on the basis of the above, the Notice of Appeal and the memorandum of Appeal have been filed outside of the prescribed time limit and the Appeal as a whole should be struck off and dismissed. Submissions of Counsels 4. Counsel for the Respondent submitted to the Court that the Notice of appeal was filed on 12th October was filed outside the time limit since the ruling was made on the 24th September 2021 and hence the deadline to file the Appeal should have been around the 8th of October 2021. 5. Counsel for the Respondent submitted to the Court that as per the Appeal Rules as per the Courts Act the Notice of Appeal should be delivered to the clerk of the Court within 14 days from the date of the decision appealed against and hence submitted to the COUli that since the Appeal was filed outside the time limit prescribed by law and there is no application before this Court in order to extend the time limit or to appeal outside time, the appeal should be struck out. 6. Counsel for the Respondent also submitted to the Court that the bundle of the records of the proceedings was served on the 30lh November 2021 and thus the Appeal rules of the Courts Act provides that within 14days of receiving the record of the Appeal, the Appellant should file his memorandum of Appeal. 7. Counsel for the Respondent further submitted to the COUlithat the memorandumof Appeal was filed on the 81h February 2022 which is approximately 2 and a half months after the record of Appeal was provided. 8. Counsel for the Respondent submitted that the Appeal rules of the Court's Act provides that in the event that the memorandum of Appeal is not filed within the 14 days time limit, the Appeal is deemed to be abandoned and the COUlimust strike it out. 9. Counsel for the Respondent submitted to the Court that when calculating time limits from the Magistrates Court to the Supreme Court, it is the calendar days and not Court days that is counted and hence we Count also the Saturdays and Sundays. The Respondent relies on the Authority of the case Director of social services VISValentin MA 53/2016 andthe case of Jean VISInter-Island Boat Limited Civil Appeal 44 of 2012whereby the COUliheld that in respect of time limits this Court will enforce all time standards as established by rules and that unless there is an application to extend any time limits prescribed by law it will not be automatically condoned by the Court. 10. Counsel for the Appellant on the other hand submitted that the Appeal was filed well within the 14 days as provided by law. Counsel also submitted that it was the court that granted the Appellant permission to file the memorandum of Appeal. 11. Counsel for the Appellant also submitted to the Court that he had received the ruling of the Employment Tribunal only much later in April 2022 and that it was not in the bundle that 12. At this juncture the court granted leave to the Appellant in order to file an Affidavit from the Employment Tribunal attesting to these facts mentioned in paragraph 11 of this ruling of which on the 19th September 2022 counsel for the Appellant informed the COUlithat the said Affidavit or testimony was not possible to get from the Employment Tribunal. The Law Counsel received from the Employment Tribunal as there was a member of the Employment Tribunal that was not available to sign the said ruling 13. Schedule 6, paragraph 4 of the Employment Act provides that' Any person against who 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 Magistrate's Court. SJ 11 of 1961 as regards to the Appeal rules made under the Courts Act namely rule 27(1) which provides that 'where an Act allows an Appeal to the Supreme Court from an Order or decision of any commissioner or Tribunal or officer, the procedure of such Appeal shall be in accordance with such an Act and Regulation thereunder and subject thereto and in respect for the matter for which has not been provided for, in accordance with these rules Rule 6(2) ofthe Appeal rules made under the Courts Act provides that the Notice of Appeal shall be delivered to the Clerk of the COUli within 14 days from the date of the decision Appealed against. 14. Rule 11 ofthe of the Appeal rules made under the Courts Act provides that 'ifthe Appellant wishes to proceed with the Appeal he shall, within 14 days from the date of the service of the copy of the record referred to in the preceding rule, deliver to the clerk of the Court a memorandum of Appeal. 15. Rule 5 of the same Rules provides that any party desiring an extension of time prescribed for taking any step may apply to the Supreme Court by motion and such extension as is reasonable in the circumstances may be granted on any ground which the Supreme Court considers sufficient.16. The above sections of the law has the effect that an Appeal from the Employment Tribunal follows the same procedure as an Appeal in civil cases from the magistrate court to the Supreme Court and hence the Appellant has 14 days to file his Notice of Appeal in the Registry of the Supreme COUlt from the decision of the Employment Tribunal and he has to deliver his memorandum of Appeal within 14 days from the date of the service of the copy of the record in default of which an Application must be filed to the Supreme Court asking for leave and as such the COUlt may grant such leave on any ground which COUlt considers sufficient. 17. Since day is not defined in the Employment Act then we have to the tum to Interpretation and General Provisions Act in order to assist this Court in the Computation oftime in filing an Appeal. 18. Section 57 of the Interpretation and General Provisions Act provides the following; (a) a period reckoned by days from the happening of an event or the doing of any act or thing is exclusive of the day on which the event happens or the thing; (b) where a period is expressed to begin or end at, on or with a specified day or to continue to or until a specified day, the period shall include that day; (c) where a period is expressed to begin after or to be from a specified day the period shall not include that day; (d) where the last day of a period is an excluded day, the period includes the next following day (not being an excluded day; and (e) where an act or proceeding may be or is required to be done or taken on a certain day and that day is an excluded day, the act may be done or the proceeding taken on the next following day (not being an excluded day) 19. This Court takes notice that there was an amendment made to the Interpretation and General Provisions Act by (act 24 of2021) in the Civil Code of Seychelles (Consequence of Enactment) Act, 2021. Section 4 of the said Act now defines excluded day as a Saturday, a public holiday, or a bank holiday declared under section 64 of the Financial Institution Act. 20. The effect of the above provisions and amendment thereon is that Saturday, Sunday and public holidays are excluded days for the purpose of computation of time for the filing of an appeal so is the day of the decision of the Court or Tribunal and the last day for the filing of an Appeal should not be counted for the purpose of computation of time in filing an Appeal to the Supreme Court from the Employment Tribunal. Determination 21. In the present case it is clear that the Notice of Appeal was filed on the 12thOctober 2021 and the ruling was delivered on the 24th September 2021. In the Case of Junia Albert Ors VIS Hill view Resorts (Seychelles) Ltd, CA 21/2021, this Court by excluding Saturdays, Sundays, public holidays, the day of the delivery of the Ruling and the day for filing notice of Appeal, by relying on the above provisions of the law, this Court found that the Appellants were well within the prescribed time limit in filing their Notice of Appeal. 22. By excluding the day of the ruling and the last day for filing the Appeal as well as Saturdays and Sundays of which this Court notes that there were no public holidays during this period in the present case, this Court finds that the Notice of Appeal was filed 11 days from the date of the ruling of the Employment Tribunal and hence this court accordingly holds that the Appellant was well within the prescribed time limit as provided by law when the Appellant filed its Notice of Appeal. 23. As a result of paragraph 22 of this ruling, I accordingly dismiss the pi point of law raised in the plea in Limine Litis of the Respondent. 24. As to the 2nd Point oflaw raised by the Respondent in his plea in Limine Litis namely that the proceedings were served on the parties sometime in the end of Novemberlearly December 2021 and the memorandum of Appeal was filed on the 8th February 2022 which is outside of the fourteen-day time limit to file the memorandum of appeal and this Honourable COUli should not entertain. 25. It is clear that counsel for the Appellant attempted to give an explanation from the bar as to why he had filed his memorandum of Appeal more than 14 days from the date of the service of the copy of the record of the Employment Tribunal by stating that the ruling was not served on him until April 2022 and was not part of the bundle served on him. 26. This Court notes that on the return of the process server, the process server has certified that a copy of the proceedings, ruling and documents from the Employment Tribunal has been served on secretary of Mr. Elvis Chetty on the 6th of December 2021. 27. This Court reminds itself of the provisions of Rule 5 of the Appeal rules made under the Courts Act which provides that any party desiring an extension of time prescribed for taking any step may apply to the Supreme Court by motion and such extension as is reasonable in the circumstances may be granted on any ground which the Supreme Court considers sufficient. 28. In the case of Jean VIS Inter- Island boat limited Civil Appeal 44 of2012, Egonde-Ntende CJ relied on the decision in the case of Aglae v Attorney General SCA 35 of 201 0 which cited in approval the words of the Privy Council in the case of Ratnam VIS Cunnarasamy (1964) All E. R 933 of which the Court held the following; 'The rules of Court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the Court can exercise its discretion. If the law requires otherwise a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation. The court in the case of Jean (supra) held that the Applicant has not explained the 3 months delay in failing to take any step with regard to a ossible Appeal against the decision of the Employment Tribunal. This is fatal to his Application. Parties and their legal advisors must understand that this Court will enforce the time standards established by the rules.' 29. Although Counsel for the Appellant attempted to give reasons for his delay in filing his memorandum of Appeal from the bar only which is highly improper, Since the Appellant was served with a copy of the records of the Employment Tribunal on the 6th of December 2021 and filed its Memorandum of Appeal on the 7th February 2022 of which the Appellant was well outside the time limit of 14 days to file his memorandum of Appeal and has not filed an Application for an extension of time to file his memorandum of Appeal as prescribed by law in order to give sufficient grounds to condone the Appellant's delay, this COUlishall not be able to entertain the Appellants memorandum of Appeal filed outside the time limit prescribed by law. 30. As a result of paragraph 29 of this ruling, this Court will uphold the 2nd Point oflaw raised by the Respondent in his plea in Limine Litis and as such I accordingly dismiss the Appeal with cost. Signed, dated and delivered at Ile du Port on the 17th October 2022.