Equator Hotel v Minister of Employment & Social Affairs (SCA 8 of 1997) [1997] SCCA 17 (28 November 1997)

IN THE SEYCHELLES COURT OF APPEAL EQUATOR HOTEL APPELLANT VERSUS MINISTER OF EMPLOYMENT AND SOCIAL AFFAIRS. RESPONDENT Civil Appeal No.8 of 1997 (Before: Goburdhun, P., Silungwe & Adam JJA) .................................................................................... Mr. B. Georges for the Appellant Mr. M. Vidot for the Respondent JUDGMENT OF THE COURT Delivered by Silungwe. J. A. :'--' (.1.<.'/ I:::' i \t . '1"', . ....~.'" .~~ ./ "~ \ .'\ \:,. J ',,\,. . \ \ /E"'}) The only bone of contention in this appeal Court erred in upholding all three monetary awards that Employment Minister) had granted against (hereinafter referred to as the complainant). and Social Affairs (to whom we shall hereafter the appellant is whether the Supreme the Minister of refer as the Ignace in favour of Antoine It is apparent times employed by the appellant as a carpenter. that there is now no dispute that the complainant was at all material is further common ground that in May 1995, the complainant, having been denied access and to the appellant's premises, Social Affairs a complaint leave and sought "to be paid full salary from 16/5/95 to 15/6/95". The complaint was entertained by a competent officer against whose decision the complainant the Minister made the appealed to the Minister. Upon hearing the appeal, following determination in favour of the complainant:- lodged with the Ministry of Employment in which he claimed sick and annual It "(i) sick/annual leave for the period 16d1 May to 15th June 1995 Rs. 4,900.00; (ii) one month's salary in lieu of notice (iii) compensation for length of service Rs. 4,900.00; Rs.23,746.45; - 2 - (iv) less 5% Social Security (v) To be paid Rs. 1,677.45; Rs.31,868.84." It was against the said determination that invoked the supervisory jurisdiction of the Supreme Court in terms of Article 125(1)(c ) of the Constitution by petitioning the Supreme Court for a writ of certiorari so as to quash the offending part of the Minister's decision. As the appellant's efforts in the Supreme COU1:,twere to no avail, the matter is now before us as a last resort. the appellant Mr. Georges indicates that the first award is accepted by the appellant, but that the second and third ones are rigorously challenged on the ground that these awards are ultra petita as the Minister went beyond what the complainant had requested. While Mr. Vidot concedes, on behalf of the respondent, that salary in lieu of notice and compensation were not claimed by the complainant, he from contends returning to his place of work, the Minister's second and third awards were provided for under Section 49 (see also Section 63) of the Employment Act 1995. that as the complainant was prevented by the appellant However, the provisions of sections 49 and 63, in so far as this case is concerned, could only relate to termination of employment; and sight must not be lost of the fact that the case is grounded on a claim for sick/ annual leave, therefore, Mr. Vidot's not on termination of employment. the Minister's decision was argument on the point based on the Employment Act 1995 which does not provide that issues such as one month's salary in lieu of notice and compensation for length of service In so doing he exceeded could be raised for the first time before the Minister. his powers. is misconceived. Further, To this extent, Further, Mr. Vidot supports a finding by the learned trial judge to the effect that the issues of payment in lieu of notice and compensation before the Supreme Court had been raised in the proceedings before the Employment Advisory Board and not objected to. The relevant part of the judgment reads as follows:- "It is therefore important to note here that although in filing his grievance Mr. Ignace had wanted only to 'the be paid full salary from 16/5/95 to 15/6/95 - 3 - issue of termination benefits came up in the course the hearing before the Employment Advisory of Board. Mr. Georges did not controvert nor object to these issues being raised as they were not part of the pleadings in that quasijudicial organ." The learned trial judge found that the Minister of Employment and Social Affairs had been right in coming to his decision in the matter. He went on to say this:- they cannot "Although it is a general rule that parties must plead all the facts they wish to rely upon during trial and that it was nevertheless, rightly put by this court (Amerasinghe, J) in the case of Philip D'Offay vIs Geoffrey Cedras (civil appeal No. 14/92) thus:- rely on facts not pleaded, 'the evidence outside the pleadings not objected to could be acted upon by the judge in the final determination of the case before him ... ' Here, we wish to say that the complainant's complaint was, in the to pleadings. There is no dispute that circumstances of the case, tantamount though raised during the issues of payment in lieu of notice and compensation, proceedings, had not been "pleaded". Such issues clearly fall within the category of matters not properly before the Employment Advisory Board. to the introduction of such issues during Failure or omission to object proceedings or in evidence cannot, and does not, have the effect of translating the said issues into pleadings or evidence. To that extent, we would have no hesitation in holding that Philip D'Offay case, to which reference has already been made, was wrongly decided. We have no doubt whatsoever that in so far as the Minister's awards of payment in lieu of notice and compensation were concerned, he had no power to make them (see Anisminic Ltd and Foreign Compensation Commission and Another 1968 (HL) 147-223 at 171 B-F); consequently, his decision on the matter was ultra petita as the exercise of his quasi-judicial function was limited to what had been - 4 - "pleaded" before the Competent Officer appellant was before the Minister. from whose determination the In the circumstances, the appeal succeeds in that the writ of certiorari shall be issued setting aside the Minister's awards in (ii) and (iii) above. Accordingly, the appeal is allowed with no order as to costs. Dated at Victoria this ¥It;. da~ of I\J O~ ~... 1997. H. GOBURDHUN PRESIDENT A. SILUNGWE JUSTICE OF APPEAL M. A. ADAM JUSTICE OF APPEAL ~.c,~................ .' ~