Diving Cruises v Ally (CA 17 of 2023) [2024] SCSC 227 (24 October 2024)

SUPREME COURT OF SEYCHELLES Page 1 of 4 In the matter between: DIVING CRUISES (represented by Mr. France Bonte) and TIMOTHY ALLY (represented by Mrs. Aaishan Molle) Reportable CA17/2023 Appellant Respondent Neutral Citation: Diving Cruises v Ally (CA17/2023) 24th October 2024 Before: Adeline J Summary: Appeal to the Supreme Court against the decision of the Employment Tribunal Heard: Delivered: By submissions 24th October 2024 JUDGMENT Adeline, J [1] The Appellant, who was the Respondent before the Employment Tribunal, has appealed to the Supreme COUl1against the judgment of the Employment Tribunal in Timothy Ally vs Diving Cruises, ET 64/2021, delivered on the 20th October 2023. A paragraph 10 of the said judgment, the Employment Tribunal states the following; Page 2 of 4 "Having found that the termination of the Applicant was unlawful the evidence borne out by the parties, makes it clear that the relationship between the parties have devolved to such a state that it would not be practicable in the circumstances to reinstate the Applicant back in his position. As such, wefind that reinstatement is not possible and hereby find that the lawful date of termination of the Applicant's contract of employment is the 20th October 2023. Therefore, any and all lawful benefits due and owing to the Applicant between the 30th July 2021 and the zo: October 2023, shall be computed less any salaries earned by the Applicant during this period and payabLe to the Applicant by the Respondent ", [2] The Appellant, by way of relief, sought from this COUlia judgment reversing the findings and decision of the Employment Tribunal for want of evidence and proof. [3] In its Memorandum of Appeal, leamed Counsel for the Appellant, states the following; "1. Thejudgment delivered on the 20th October 2023 infavour of the Respondent is against the weight of evidence. The Respondent was the captain of the boat and hefailed to report major issues with the boat engine. He had ample access to the boat and was aware of the location of the keys of the cabin of the boat. 2. The Appellant is penalised forfollowing the law. Ample investigation has been carried out before the termination of the Respondent by the Appellant. The Appellant requested from. the Respondent a report which the Respondent failed to prepare and give. He had a duty of care as Captain of the boat to ensure that everything was in order. The Appellant did what was within the law and the Judge erred in the judgment. 3. The Appellant was threatened by the Respondent. The termination was based on serious disciplinary ground. [4J I have read the Appellant's Memorandum of Appeal more than ones and has taken minutes of painstaking effort in the absence of the Appellant making explicitly clear what the Page 3 of 4 grounds of appeal are by not even using the words "Grounds of Appeal". Through the reading of the Memorandum of Appeal, I have been unable to figure out or deduce what the grounds of appeal are. The content of the Memorandum of Appeal seems to be long winded quotations from the judgment of the Employment Tribunal, arguments and opinions as to why the judgment should be reversed rather than the errors aJlegedly made by the Employment Tribunal, as required by the Appeal Rules. [5] It is of no surprise, therefore, that in its submissions in reply, learned Counsel for the Respondent has simply repeated the findings of the Employment Tribunal and addressed matters that one would have expected to see in learned Counsel's submissions before the Employment Tribunal. I am however surprised, that leamed Counsel for the Respondent did not raise a preliminary objection to the purported appeal on the ground that there is no ground of appeal in the Memorandum of Appeal in compliance with the Appeal Rules. [6] Looking at the Appellant's Memorandum of Appeal, I am of no illusion, that there has been a contravention of rule 12 of the Appeal Rules made under the COUJ1sAct, Cap 52. Rule 12 of the Appeal Rules reads; "The Memorandum of Appeal shall contain a concise statement in numbered paragraphs oj the point or points on which the judgment is alleged to be erroneous without any agreement or narrative, and a concise prayer for the relief claimed. " (The underlined emphasis is mine) [7] I have put emphasis on the word shall because in my considered opinion the word shall used in the provision indicates, that strict adherence with the f01111and content of the Memorandum of Appeal is required. I have also put emphasis on the word erroneous because under the rules, it is incumbent of the Appellant to state the error or errors committed by the Employment Tribunal which is not the case here looking at the Memorandum of Appeal. Page 4 of 4 [8] In Ayoud Salameh vs North Island Company Limited SCA 5/2022 (Appeal arising from CA 23/2021 SCSC 34/2021) the Court of Appeal had to decide whether to agree or disagree with learned Counsel for the Respondent who had raised a preliminary objection supported by case law authorities, to the effect that all the grounds of appeal as drafted by the Appellant were contrary to Rule 18(7) of the Court of Appeal Rules, 2005 in that, they were vague. The Court of Appeal struck out the Notice of Appeal and upheld the order of the Supreme COUlt for the reason that it found that the grounds of appeal were poorly drafted and contravened the rules. [9] In the instant case, although learned Counsel for the Respondent did not raise a preliminary objection to the Notice of Appeal based on a point of law, within the scope of the Court's duty to act fairly, the COUltcannot ignore a point of law, if to ignore it would mean a failure to act fairly or to err in law (see Banane v Lefevre [1986] SLR 110. [10] In the final analysis, therefore in view that the Appellant has not complied with the provisions of rule 12 of the Appeal Rules under the COUltSAct, the Notice of Appeal has to be struck out, and the judgment of the Employment Tribunal upheld with cost awarded in favour of the Respondent.