Seychelles Medical Services v Khan (CA 19 of 2024) [2024] SCSC 222 (13 December 2024)

SUPREME COURT OF SEYCHELLES Page 1 of 12 Reportable CA19/2024 In the matter between: SEYCHELLES MEDICAL SERVICES Appellant (represented by Mr. Basil Hoareau) and JACQUELINE KHAN (Trading as Leo's Food Bus) (represented by Mr. Somasundaram Rajasundaram) Respondent Neutral Citation: SMA v Khan (CA19/2024) 13th December 2024 Before: Summary: Adeline J Appeal to the Supreme COUli against the judgment of the Employment Tribunal. Heard: By Submissions Delivered: 13th December 2024 FINAL ORDER The Appeal partly succeeds. The employment terminal benefits awarded to the Respondent by the Employment Tribunal is substituted by the following employment terminal benefit; 1. 1 month salary in lieu of notice. JUDGMENT Page 2 of 12 Adeline, J INTRODUCTION [1] By Notice of Appeal dated 8th July 2024, filed in Court on the 15th July 2024, Seychelles Medical Services, ("the Appellant") commenced legal proceedings in the Supreme COUli against one Jacqueline Khan, ("the Respondent") appealing against the decision of the Employment Tribunal in ajudgment delivered in case ETI123/2022 on the 21 st April 2023. [2] Commencing proceedings by way of Notice of Appeal has been pursuant to rule 6(1) read with rule 6(2) - (5) of the Appeal Rules "(Statutory Instrument 11 of 1961, dated 27th FebruaryI961) ("the Rules"). In compliance with rule 11 read with rule 12 of the Rules, the Appellant has since filed its Memorandum of Appeal. The history of the case leading to this appeal is bome out of the record of proceedings pertaining to the case before the Employment Tribunal. BACKGROUND [3] A synopsis of the history of the case shows that the Respondent, (the Applicant in the COUli aquo) Jacqueline Khan, had registered a grievance at the Employment Department in the Ministry of Employment and Social Affairs ("the Department") pursuant to Section 2 Part 11 of the Employment Act, 1995 ("the Act") to initiate the grievance procedure under Section 61 (1)(a) (11) of the Act. In accordance with Section 61 (IA), the competent officer in the Department sought to bring about a settlement of the dispute between the parties by way of mediation which unfortunately was unsuccessful. [4] Having failed to achieve a negotiable settlement by way of mediation, pursuant to Section 61 (1D) of the Employment (Amendment) Act 2008, the Appellant was issued with a certificate showing that mediation has failed to achieve a settlement of the dispute between Page 3 of 12 the parties. Pursuant to Section 62(1 E) of the Employment (Amendment) Act, 2008 the Respondent filed a case against the Appellant before the Employment Tribunal claiming (1) one month salary in lieu of notice, and (2) the withdrawal ofletter of dismissal on the basis that the termination of the Respondent's contact of employment by the Appellant was unjustified. [5] The Appellant objected to the application maintaining its position that the termination of the Respondent's contact of employment was justified, and therefore, it is not liable to pay the Respondent one month salary in lieu of Notice and to withdraw from the Respondent's record of employment the letter of dismissal. It prayed the Employment Tribunal to dismiss the application. [6] In a judgment delivered on the 21 st April 2023, the Employment Tribunal presided over by the leamed Magistrate K Louise, ordered the Appellant to pay the Respondent the following employment terminal benefits which add up to the total sum ofSCR 149,298.34, notably; (1) Salaries from 10th June 2022 until 21st April 2023 in the sum ofSCR 103,847.4 (2) Annual leave from 10th June 2022 until 21 st April 2023 in the sum of SCR 5,753.43 (3) Public holidays from 10lh June 2022 until 21 st April 2023 in the sum of SCR 23,540.58 (4) Compensation for length of service in the sum of SCR 6,156.93, and (5) Payment in lieu of Notice in the sum of SCR 10,000 It is against this judgment that the Appellant now appeals to the Supreme COUltseeking to quash the decision of the Employment Tribunal, and dismiss the Appeal. THE MEMORANDUM OF APPEAL [7] In its Memorandum of Appeal, the Appellant states the Grounds of Appeal to be the following; Page 4 of 12 /IJ. The Employment Tribunal erred in law and on the evidence in failing to hold that the Respondent had wrongly instituted the Application against a non-existent person. 2. The Employment Tribunal erred in law and on the evidence infailing to hold that since the Appellant had no legal personality the application before the Employment Tribunal was not valid and could not be legally maintained. 3. The Employment Tribunal erred in law and on the evidence in awarding benefits to the Respondent which the Respondent had not demanded, claimed or prayedfor. 4. The Employment Tribunal erred in law and on the evidence in awarding benefits which the Respondent had not demanded, claimed or prayed for in her grievance procedure before the competent officer. " [8] The grounds of Appeal in the Memorandum of Appeal clearly focus on errors oflaw which finn the perspective of the Appellant and its Counsel the Employment Tribunal allegedly committed. In sum, they are; (i) proceedings before the Employment Tribunal was instituted against a non-existent person ie, not a legal entity recognised by law (ii) the Employment Tribunal failed to find that the application before it was not valid in law (iii) The Employment Tribunal acted ultra petita, by awarding the Respondents employment benefits that were not part of the Respondent's claims at mediation stage before the competent officer and even before the Employment Tribunal. Page 5 of 12 SUBMISSIONS [9] In his oral submissions, learned Counsel for the Appellant argued, that the Employment Tribunal failed to hold that the Appellant has no legal personality. Learned Counsel refers this Court to the provisions of Section 47 of the Commercial Code, stating, that the law recognises four kinds of legal persons, and the Respondent who was the Applicant before the Employment Tribunal is not one of those and therefore is a non-existent person in the eyes of the law. It is the submission oflearned Counsel, that the law recognizes a company, an association, a partnership (including a commercial partnership) as well as a natural person. [10] To strengthen his contention, leamed Counsel refers this COUlito its judgment in knickers Right and Marie-Claudette Bamboche CA 15/2022 [2023] SCSC 181, in which case, this Court was confronted with the very same point oflaw needed to be adjucated upon. In this case, this COUlidid make the point that a proposition that a person is non-existent calls for a discussion of the concept of legal entity or separate legal entity. I made the point, that a legal entity is a person recognisably law as a legal person. At paragraph [22] of the said Judgment I had this to say; "It is Trite law, that a legal entity is aperson recognise by law as a legal person. As such, the entity has its own legal rights and obligations. These rights and obligations are separate to those running and or, owning the entity. In law, that person may either be a company with limited liability, a partnership or a Sole Trader. Therefore, if it is a company, it is an incorporated entity which is a separate legal entity in its own right" [11] I also made the point, that "the hallmarks ofa separate legal entity are that it can buy, sell and own property of any kind in its own name, agree to legally binding contracts, sue and be sued in its own name". Clearly therefore, separate legal entity means also, separate legal person, separate legal existence. As an individual person, I can operate a business as a sole trader. I am a natural person. If I do incorporate a company and be a shareholder the company is an artificial person which is a separate legal entity. Page 6 of 12 [12] It is worth reminding ourselves, that the concepts of separate legal personality or entity, was first introduced by case law in the English case of Salomon v A Salomon Co Ltd decided in 1897. The House of Lords had this to say; "once a company is incorporated, it has a separate legal existence to the shareholders of the company .... [the company} must be treated like any other independentperson with its own rights and liabilities appropriate to itself.... Whatever may have been the ideas or schemes of those who brought it into existence" Subsequently, in the case of Prest vs Petrodel Resources Ltd in 2013, the COUl1reaffirmed this principle. [13] As regards to the proposition of learned Counsel that the Employment Tribunal erred in law and on the evidence in awarding benefits to the Respondent which the Respondent had not demanded or claim for, it is submitted by learned Counsel, that the Tribunal acted ultra petita. Learned Counsel argues, that on the standard form application, the Respondent sought for two remedies, notably, one month salary in lieu of notice and the withdrawal of the unfair dismissal letter. [14] It is submitted by learned Counsel, that the Employment Tribunal granted the Respondent other financial awards as benefits outside the pleadings adding up to the total sum of SCR 149,298.34, instead of the one month's salary in lieu of notice in the sum ofSCR 10,000 which it had demanded. It is the submission of learned Counsel, that the Employment Tribunal should not have awarded the Respondent what it is entitled by law, but rather, what it has claimed for. In learned Counsel's view, this has to do with the principle offair hearing because the other party ought to know what the case against it is about through full disclosure, and a Court or tribunal cannot formulate a case for a party. [J 5] To support its argument, learned Counsel cited the COUlt of Appeal case of Elfrida Vel vs Selwyn Knowles Civil Appeal N041 and 44 of 1988, in which case Venchard JA had this to say; Page 7 of 12 It is for the pUl]JOSeof this judgment more appropriate to deal, in the.first instance, with the issue a/the ownership ofplot J-lJ387. It is obvious that the orders made by the trial Judge are ultra petita, and have to be rejected. It has recently been held in the as yet unreported case of Charlie Francoise [J995} SCAR that civil justice does not entitle a Court toformulate a casefor a party after listening to the evidence and to grant a relief not sought in the pleadings. He was of course at pains tofind an equitable solution as to dojustice to the Respondent but it was not open to him to adjudicate on issues, inparticular the re-conveyance, which had not been raised in the pleadings. " [16] In the case of Charlie vs Francoise Civ App 1211994, 12 May 1995, AyolaJA, made similar point when he stated the following; "The system ofjustice in this country does not permit the Court toformulate a casefor the parties after listening to the evidence and grant relief not sought by either of the parties that such evidence may sustain without amending theplaint. In the adversarialprocedure the parties must state their respective cases on theirpleadings and theplaintiff must state the relief he seeks on his plaint". [17] Clearly, therefore, I have to agree with learned Counsel for the Appellant, that the employment financial awards made by the Employment Tribunal was ultra petita, because the Respondent (who was the Applicant then) did not make those claims. It appears to me, that the Employment Tribunal based its findings on what the Respondent was entitled to under the provisions of the Employment Act, as amended, rather than what it actually claimed, and that was admittedly, an error. [18] I must also mention the fact, that I am also in agreement with learned Counsel for the Appellant, that given that mediation before a competent officer in the Department of Page 8 of 12 Employment is mandatory, in an application before the Employment Tribunal. An Applicant cannot make any claim that was not subject to mediation. It follows, that any claim that an Applicant seeks to make before the Employment Tribunal which claim was not one made at mediation, cannot be entertained by the Employment Tribunal, and that in the instant case, it was also an error for the Employment Tribunal to make the financial employment awards it did when those claims were not even put to mediation. [19] The case before the Employment Tribunal was between Jacqueline Khan vs Seychelles Medical Services. It is the contention of learned Counsel for the Appellant, that the Seychelles Medical Services is not a legal entity, and therefore, does not enjoy legal personality. At this juncture, it is pertinent to ask the question, why was such an important legal question of law not raised before the Employment Tribunal and is it proper to raise it now? It is the submission oflearned Counsel for the Appellant that even if the COUlttakes the view, that because such a point oflaw was not raised before the Employment Tribunal it cannot entertain it, there would be problem ahead because the COUltwould be acting in futility because the Respondent would have a judgment that is incapable of being executed or being enforced. [20] To that end, it is submitted by learned Counsel, that it is a fundamental legal principle that a Court oflaw will not act in futility. To support its discussion about this principle, learned Counsel cites the case of Jaribu Holdings Ltd v Kenya Conunercial Bank Ltd H. C. C. C. No 950 of 2002, in which case, inter alia, the Court stated the following; "The practice of the Courts in this jurisdiction is that a party moves the Court/or whatever orders it wishes that Court to make in itsfavour except where the law expressly empowers the court to act suo motu. The applicant has not included a prayer in its application before us seeking an order against the respondent for the alleged [outing of the law. " The COUltwent further as to say, that; "It will not be within reasonfor us to grant an orderfor a stay of a decree which we know and the applicant itself concedes has been executed. The general policy of the law is that the Courts should not act infutility. J) Page 9 of 12 [21] On the facts and circumstances of the instant case, should this COUli entertain learned Counsel's point of law that the Employment Tribunal heard an application filed against a non-existent person and a judgment given against a non-existent person which point was not raised before the Employment Tribunal? The case of Banane v Lefevre [1986] SLR 110, established the principle, that although the general rule is that the COUli cannot entertain a legal point not raised in the COUlia quo, in the sphere of the Court's "duty to act fairly, a Court or tribunal should not ignore a point of law even if not raised by the parties if to ignore it would mean failure to act fairly or to en in law". Arguably, on the facts of this case, it cannot be said, that because the Employment Tribunal have ignored this point oflaw, that it has failed to act fairly and erred in law. It is my considered view, therefore, that this ground of appeal cannot succeed given that it was not raised before the Employment Tribunal. [22] Nonetheless, I do subscribe with the view of learned Counsel, that the fact that the judgment is against a non-existent person, the Respondent would not be able to execute or enforce the judgment. Therefore, by upholding the judgment this COUli would be acting in futility against the principle that Courts should not act in futility. For this reason, on that particular ground the decision of the Employment Tribunal in the judgment of the 21 April 2023 is quashed and the Appeal is allowed. [23] In its submissions to have the judgment of the Employment Tribunal upheld, learned Counsel for the Respondent points to several aspects of the evidence put before the Employment Tribunal rather than addressing the legal issues raised by learned Counsel for the Appellant. As regards to the 1st ground of Appeal, learned Counsel stated, that the COUli should refer to the evidence on record which shows that the Appellant (the Respondent before the Employment Tribunal) did call itself Seychelles Medical Services (Pty) limited, a company incorporated under the provisions of the Companies Act 1972. Page 10 of 12 Leamed Counsel refers to specific letters tendered in evidence as exhibits (AI, A2 and A3) in which letters the Appellant identified itself as Seychelles Medical. Learned Counsel also refers this Court to the affidavit swom by Mr. Marcus Simeon in support of the application for an extension of time in which affidavit, he avers that he works for "Seychelles Medical Services". [24] Learned Counsel for the Respondent further submitted, that whilst the case cited by learned Counsel for the Appellant deals with legal entity, the principles derives from those cases cannot be applied to the facts and circumstances of the instant case because there has only been an inadvertent omission by failing to add the words "Pty Limited", and that should not affect the rights of the aggrieved employee who all along has been an employee of Seychelles Medical Services (Pty) Ltd which in short has been called Seychelles Medical or Seychelles Medical Services. In leamed Counsel's view, has the words "Pty Ltd" added to Seychelles Medical Services, it would have been one and the same entity as Seychelles Medical Services. Leamed Counsel maintains, that there is no difference between Seychelles Medical Services (Pty) Ltd and Seychelles Medical Services. [25] It is the submission of leamed Counsel, that in any case, the proposition that the Applicant (now the Respondent) is a non-existent person was not raised before the Employment Tribunal, and therefore, it cannot be made an issue for consideration in this proceeding. [26] Learned Counsel, failed to address the issue of ultra petita raised by Counsel for the Appellant directly. Leamed Counsel is of the view, that since the Respondent's case before the Employment Tribunal was for unfair dismissal, and that the Employment Tribunal accepted that it was a case of unfair dismissal, then it follows, that the Employment Tribunal was right to award the Respondent all the terminal employment benefits that she is entitled under the law including the one month salary in lieu of notice. [27] It is my considered view, that the point raised by learned Counsel for the Appellant that before the Employment Tribunal the Applicant (now the Respondent) was a non-existent person has not been addressed by Counsel for the Respondent from a legal perspective. Page 11 of 12 Learned Counsel has taken the simplistic view, that it has just been an inadvertence omission that doesn't matter anyway given that the Appellant calls itself Seychelles Medical, which is the same as Seychelles Medical Services (Pty) Ltd which employed the Respondent. [28] On the issue of ultra petita, learned Counsel seems to be saying that it did not apply to the facts and circumstances of the case before the Employment Tribunal. The contention of learned Counsel, is that once the Employment had made a finding that there was unfair dismissal, it was not an error for it to award the Respondent all the employment benefit entitlements under the law whether it applied for it or not. A view, which unfortunately I cannot subscribe to. DETERMINA TJON [29] The principles of law raised by learned Counsel for the Appellant backed up by case law authorities and correctly argued in its oral submissions in support of grounds 1 and 2 taken together, notably, that the Respondent (the Applicant before the Employment Tribunal) is non-existent and has no legal personality, would have led to a successful appeal on grounds 1 and 2 if only they were live issues before the Employment Tribunal. [30] Unfortunately, amid opposition from the Respondent arguing that those issues were not raised before the Employment Tribunal as borne out of the records of the proceedings, they cannot be considered in this appeal. As regards to the principle that the COUli CaImot act in futility, although this is trite law, it is my considered opinion, that it cannot be invoked at this stage for the very same reason given above, and that in the circumstances, it should be left to a later stage should there be execution of the judgment if the Appellant chose to raise it. [31] In respect of grounds 3 and 4 taken together, this appeal partly succeeds given that the Employment Tribunal did act ultra petita by awarding the Respondent terminal employment benefits which was outside its pleadings in violation of the principles Page 12 of 12 enunciated in the case law above, which employment terminal benefits the Respondent had not prayed or claimed for. I do subscribe with the view of leamed Counsel for the Appellant, that although under various provisions of the Employment Act 1995, as amended, an employee who has had its contact of employment unjustifiably terminated is by law entitled to certain terminal employment benefits, the employee still has to request or claim those benefits as part of its pleadings. [32] In the circumstances and in the final analysis, this appeal is partly allowed, and is accordingly is partly succeeded, in that, the order for the financial award made by the Employment Tribunal in its judgment of the 21 5( April 2023 is quashed and substituted by the following order; (1) The Respondent (the Applicant before the Employment Tribunal) is awarded one month salary in lieu of notice.