Savoy Development Limited v Salum & Anor (CP 1 of 2022) [2023] SCCC 5 (13 June 2023)

Dodin J. (Presiding) E. Carolus, D Esparon JJ.

1. This is a ruling on preliminary objections raised by the Respondents to the Petitioner’s petition under article 46 of the Constitution alleging contravention of articles 27(1) and 19(7) of the Seychelles Charter of Fundamental Human Rights and Freedoms.

2. The Petitioner is a company incorporated in Seychelles and carries on the business of Hoteliers at Savoy Seychelles Resort and Spa at Beau Vallon, Mahe. The First Respondent is a former employee of the Petitioner employed as a Front Office Manager until her termination on 28th August 2018. The Second Respondent is joined as a party in accordance with Rule 3(3) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules.

3. In its Petition, the Petitioner contends that it feels aggrieved that its constitutional rights to equal protection of the law without discrimination under Article 27(1) and a fair hearing within a reasonable period under Article 19(7) have been breached and have not been addressed before the the Employment Tribunal in case ET 183/2018 and ET 185/2018, and in the Supreme Court case in CA 11/2020 and by the Court of Appeal in SCA 10/2021. The Petitioner contends that the Courts including the Tribunal, the Supreme Court and the Court of Appeal in their judgments failed to address the issue of the right to equal protection of the law without discrimination, particularly the ground that there was a proven admitted offence which constituted an economic crime. Further the Employment Tribunal hearing took up to two years before the Tribunal decision was made mainly due to matters beyond the control of the Petitioner and as a result the Petitioner has been severely prejudiced in the final judgment.

4. The Petitioner avers that the Judgments are discriminatory against the rights of the Petitioner in recognising 01st of September 2020, the date of the Judgment in ET 183.18 and 185.18 of the Employment Tribunal, as the date of lawful termination and awarding 1st Respondent salaries and compensation until 01st September 2020. The Petitioner avers that the Judgments did not take into account that initially the 1st Respondent claimed re-instatement but at the hearing of 28th January 2020, she refused to be re-instated since she had got a new employment. Therefore, determining the date of lawful termination the Judgments did not consider the fact of the 1st Respondent’s new employment and refusal of the reinstatement. No legal grounds were provided to substantiate the fact that the date of lawful termination of the 1st Respondent as per the Judgments is later than the date of the new employment with another employer and as a result the Petitioner is to be penalised by paying salaries and compensation for periods when the 1st Respondent had no intention of working for the Petitioner.

5. The Petitioner avers that there has been serious discrimination in all the Judgments where the emphasis was on using excuses presented by the 1st Respondent to exonerate her for her admitted acts of insider breach of trust by finding that such offences were committed in the past, or staff put their private money in the hotel float because they did not have their personal bags with them, or the 1st Respondent replaced monies she borrowed or lent to another staff, or that each time the 1st Respondent had no intention to steal from the float.

6. The Petitioner further avers that the fact that they were not given a fair hearing as averred and within a reasonable time they have suffered a final judgment where they have been heavily penalised with having to make out huge termination dues pay-out for a case that took 2 years to complete for reasons beyond their control and very much due to the absences of 1st Respondent or her lawyer or the Tribunal not having the proper manpower to comply with the constitutional right of the Petitioner for a fair hearing within a reasonable time in terms of article 19(7) of the Constitution.

7. The Petitioner moved the Constitutional Court for the following orders:

1. To declare that the provisions of articles 27(1) and 19(7) of the Constitution were contravened in the Employment Tribunal in case ET 183.18 and 185.18; and by the Supreme Court in case CA 11 of 2020 dated 16th April 2020 and finally in Court of Appeal Judgment in SCA 10/2021 dated 17th December, for the reasons stated in this Petition;

 

2. To set aside the relevant unconstitutional Judgments of the Employment Tribunal in case ET 183.18 and 185.18 dated 1st September 2020; Supreme Court in case CA 11 of 2020 dated 16th April 2021 and in Court of Appeal Judgment in SCA 10/2021 dated 17th December 2021 for the reasons stated in this Petition;

 

 

3. To grant a stay of execution of the judgment of the Court of Appeal Judgment in SCA 10/2021 on 17th December 2021 pending the determination of this Petition including the resulting proceedings in ET 183.18 and 185.18 before the Employment Tribunal pursuant to the order in SCA 10/2021 dated 17th December 2021; and

 

4. To award costs to the Petitioner against the 1st Respondent.

 

8. The 1st Respondent raised preliminary objections setting out the following grounds of objection:

1. The petition is filed out of time alleging contravention of constitutional rights since an Employment Tribunal decision dated 1st September 2020, and therefore does not comply with the requirements under Rule 4(1) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules;

 

2. It is prolix, unstructured, opinionated, unfocused and therefore does not comply with the requirements under rule 5(1) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules. Further, the accompanying affidavit of facts is forensically useless and in any event defective;

 

 

3. The petition constitutes an abuse of process because (i) the Petitioner has adequate means of redress available to them; and (ii) the petition is being used to scandalize the entire judiciary and (iii) the petition is a disguised attempt to rehear an unsuccessful appeal; and

 

4. The petition contains no cause of action, does not reveal any violation of a constitutional right on a prima facie basis and is thus frivolous and vexatious.

 

9. In his written and oral submissions learned counsel for the 1st Respondent submitted that the preliminary objections are submitted pursuant to Rule 9 of the Constitutional Court Rules. In looking at the objection for out of time, it is clear in the petition that the alleged contravention is based on a decision of the Employment Tribunal dated the 01st of September 2020. Rule 4 (1) of the Constitutional Court Rules provides that where a petition alleges a contravention, the petition shall be filed in the Registry of Supreme Court for a case of the alleged contravention within three months of the contravention. The Petitioner has come before this Court without seeking leave for filing out of time and on that basis alone the petition ought to be dismissed. Learned counsel submitted that it is now over 2 years since the decision of the Employment Tribunal and there is therefore an unreasonable and inordinate delay.

10. Learned counsel further submitted that in dealing with prolixity the Petition and affidavit are drafted in emotive and long-winded terms. They are confusing and difficult for counsel to decide and distinguish the individual allegations made by the Petitioner. It is therefore unclear as there are lack of proper individual pleadings in the Petition. Rule 5 (1) provides that the Petition under Rule 3 shall contained a concise statement of material facts. Learned counsel submitted that this Petition is anything but concise. It also raises matters that have already been dealt with and raised before the Court of Appeal. It does not address or identify in what way a contravention of constitutional right against the 1st Respondent has arisen. On that basis, the petition falls for short of the Constitutional Court Rules under Rule 5 (1).

11. Learned counsel submitted in addressing the abuse of process objection that the Petitioner having dragged the 1st Respondent through a series of litigation is merely attempting to rehear an unsuccessful appeal. The Petitioner had ample opportunity to raise such alleged contravention of constitutional rights at the hearing of the Court of Appeal and failed to do so. The Petitioner also raises issues of bias which was withdrawn by the Petitioner in the hearing of the appeal itself. Learned counsel referred the Court to the case of Elizabeth vs. President of the Court of Appeal (SCA 2/2010) [2010] SCCC2, arguing that the Court of Appeal essentially held that a decision of the Court of Appeal could not be challenged thereafter in the Constitutional Court on claims that the decision breached Constitutional rights. To allow such a challenge would be to undermine the whole structure of the administration of justice and the higher Court established by the Constitution. The Court of Appeal also held in relation to essentially improper and abuse of process. Learned counsel submitted that the situations of this case is an attempt to scandalize and undermine the entire administration of justice in which the 1st Respondent having been dragged through litigation which has taken over three years is now being delayed from enjoying the fruits of her Judgment before the Court of Appeal and it is an abuse of process.

12. Learned counsel further submitted that the Petition is frivolous and vexatious and referred to the ruling in Vijay Construction (Pty) Limited vs. Eastern European Engineering Limited SCCA 13 November 2020. Learned counsel submitted that the Petitioner has filed this Petition with the sole aim to delay the 1st Respondent from the fruits of her Judgment and therefore falls within the definition of vexatious and attempts to harass and annoy the 1st Respondent from enjoying the fruits of her Judgment. Further in reference to frivolous, learned counsel submitted that it is one that is of no serious purpose or value and is not made in good faith. Learned counsel submitted that this is further evidenced in the filing of numerous applications including before this Constitutional Court for the stay of execution of the Court of Appeal Judgment.

13. Learned counsel moved the Court to dismiss the Petition on any or all of the grounds raised above.

14. Learned counsel for the 2nd Respondent adopted the submission, both written and oral of the 1st Respondent and added further to the objection to the fact that there is no cause of action for the Petitioner before this Constitutional Court. Learned counsel submitted that no issue that has been raised in the Petition where raised before the Tribunal or the Supreme Court or the Court of Appeal. Therefore, similar to the case of Mellie vs. Government of Seychelles and Ors SCA CP03 of 2019 in which she argues there was a refusal of the Constitutional Court to hear the Constitutional petition because the litigant was attempting to have the Court of Appeal’s decision reviewed on its merits by raising constitutional arguments not raised in the Court of Appeal, this case should be determined along the same principles.

15. Learned counsel further submitted that in the case of Gomme vs. Morel SCA 06 of 2010 (delivered on the 07th of December 2012), the Court of Appeal stated that the proper adherence to the rule of law in a democratic society requires that one is debarred from rehearsing the same issues in multifarious forms. The 2nd Respondent submitted that this Petition is a clear example of where a matter is being brought to this Court in a multifarious form by rehashing the same issues all over again that should have been raised before the Tribunal Court or the Supreme Court or the Court of Appeal.

16. Learned counsel further submitted that the decision of the Court of Appeal can be reopened in only two exceptional circumstances; one of them is the fact that the right to fair hearing of the Petitioner has not been observed in that the Court of Appeal refused to listen or hear the submission of the Petitioner. Learned counsel submitted that this is not what happened in this case. The petitioner was afforded a fair hearing and all the grounds of appeal raised by the Appellant, now Petitioner, were addressed by the Court of Appeal. The Petitioner failed to raise the issues now being raised before this court in the Court of Appeal and therefore could not have expected the Court of Appeal to have addressed any ground of appeal that had not been raised.

17. Learned counsel for the Petitioner submitted in reply that the Petition was brought one month after the final Court of Appeal ruling. The final Court of Appeal ruling as put in the Petition did not addressed at all the long list of authorities in relation to the employer’s right such as what action an employer can actually take when it comes to a clear breach of trust. The Employment Act is very clear and very much in favor of employees. And if an employer breaches those he is doomed. Learned counsel submitted that in this case, the whole process went through and the 1st Respondent admitted she took the money, she played around with the float. She was earning Rs50, 000/- a month as a Front Desk Manager and person in charge.

18. Learned counsel submitted that the Petitioner is basically coming before this Court on a constitutional basis and not coming to this Court just to waste time or to prevent any person enjoying the fruit of their judgment. The Petitioner is coming to this Court on the basis that an employer has very few rights under the Employment Act and referred the Court to the list of authorities attached to the written submission of the Petitioner in support. Learned counsel submitted that one of the main arguments of the Petitioner is that an employer would not just kick somebody out of employment without some reason. The Court should have at least looked at some purpose behind why the 1st Respondent was terminated. This was not addressed by the Court of Appeal at all in their Judgment. This amounted to breach of the right to a fair hearing.

[18] Learned counsel submitted that this Petition is not a case where the Petitioner has come back for second bite of the cherry but the Petitioner is coming on an original application that there has been a constitutional breach to a proper hearing in view that the Court of Appeal has not taken up the challenge of actually addressing the idea that an employer has rights. Learned counsel submitted that the Constitutional Court should not just close the door just because the case has been through to the Court of Appeal.

19. Learned counsel further submitted that after this Petition had been filed, the matter went back to the Employment Tribunal for a re-assessment as per the Court of Appeal ruling and the chairperson there was a person who had represented the 1st Respondent in several cases and she based her final assessment as if to complete the Court of Appeal Order but based on a contract in the file which had never formed any part of any proceedings before.

20. Learned counsel referred the Court to several authorities most of which he attempted to distinguish from the present Petition, maintaining that in the cases referred to by the 1st and 2nd Respondents, the Constitutional Court’s refusal to hear the constitutional petition on the decision of the Court of Appeal was because the litigants were attempting to have the decisions of the Court of Appeal reviewed on the merits by raising constitutional arguments not raised on appeal. In this case, the Petitioner has petitioned the Constitutional Court for determination and guidance on the actual situation where there was admitted breach of trust by the 1st Respondent which none of the courts or tribunal considered.

21. In conclusion, learned counsel for the Petitioner submitted that the Petition was not filed out of time contrary to Rule 4 but was filed within 3 months of the final decision of the Court of Appeal in SCA 10/2021 on 17th December 2012. Further the Petition is not prolix for the purpose of this application and does not infringe Rule 5(1) of the Constitutional Court Rules in that an explanation is required as to why this Court is being asked to look seriously at a long-standing infringement and violation of the rights of the employer in the face of clear admitted offences in the workplace.

22. Learned counsel further submitted that the Petition is not an abuse of process and clearly reveals two crucial issues of constitutional law to be decided by this Court and continuing breaches where a chairperson who was counsel for the 1st Respondent in the Supreme Court proceedings relating to the parties subject of the dispute has now made a unilateral order based on a document she found on the file from an unknown source to make a final determination without the knowledge or participation of the Petitioner in that process in breach of the rules of natural justice.

23. Learned counsel further submitted that there is a definite exceptional cause of action for the Petitioner for the Constitutional Petition being raised for matters which were raised as central issue for consideration before the Court of Appeal but which were finally not addressed where the court decided to concentrate on the issue of compensation and the reduction thereof.

Relevant laws

24. Article 27(1) of the Constitution of Seychelles provides for the right to equal protection of the law:

 

“(1)Every person has a right to equal protection of the law including the enjoyment of the rights and freedoms set out in this Charter without discrimination on any ground except as is necessary in a democratic society.”

 

Article 19(7) provides that:

 

“(7)Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial, and where proceedings for such a determination are instituted by any person before such a court or other authority the case shall be given a fair hearing within a reasonable time.”

 

25. Article 46 has the relevant provisions in respect of constitutional issues arising during or out of proceedings before courts and tribunals:

“46. (1)A person who claims that a provision of this Charter has been or is likely to be contravened in relation to the person by any law, act or omission may, subject to this article, apply to the Constitutional Court for redress.

(7)Where in the course of any proceedings in any court, other than the Constitutional Court or the Court of Appeal, a question arises with regard to whether there has been or is likely to be a contravention of the Charter, the court shall, if it is satisfied that the question is not frivolous or vexatious or has already been the subject of a decision of the Constitutional Court or the Court of Appeal, immediately adjourn the proceedings and refer the question for determination by the Constitutional Court.”

26. Rules 3, 4 and 5 of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules make the following provisions:

3. (1) An application to the Constitutional Court in respect of matters relating to the application, contravention, enforcement or interpretation of the Constitution shall be made by petition accompanied by an affidavit of the facts in support thereof.

“4.(1)Where the petition under rule 3 alleges a contravention or a likely contravention of a provision of the Constitution, the petition shall be filed in the Registry of the Supreme Court─

(a)in a case of an alleged contravention, within 3 months of the contravention;

(b)in a case where the likely contravention is the result of an act or omission, within 3 months of the act or omission;

(c)in a case where the likely contravention arises in consequence of any law, within 3 months of the enactment of such law.

(3) Notwithstanding subrules (1) and (2), a petition under rule 3 may, with the leave of the Constitutional Court, be filed out of time.

 

(4) The Constitutional Court may, for sufficient reason, extend the time for filing a petition under rule 3.

5. (1) A petition under rule 3 shall contain a concise statement of the material facts and refer to the provision of the Constitution that has been allegedly contravened or is likely to be contravened or in respect of which the application, enforcement or interpretation is sought.

 

Analysis and findings

 

27. In this Petition, the Petitioner seeks the determination by the Constitutional Court of what the Petitioner alleges to be constitutional lapses arising before the Employment Tribunal in case ET 183/2018 and ET 185/2018, in the Supreme Court in case CA 11/2020 and by the Court of Appeal in case SCA 10/2021. Learned counsel for the Petitioner contends that the Petition seeks to redress the violations of the Petitioner’s constitutional rights by having contravened Articles 27(1) and 19(7) of the Seychelles Charter of Fundamental Human Rights and Freedoms. The Petitioner prays this Court to declare that the provisions of Articles 27(1) and 19(7) of the Constitution were contravened in the Employment Tribunal decisions in case ET 183.18 and 185.18, by the Supreme Court Judgment in case CA 11 of 2020 and by the Court of Appeal Judgment in SCA 10/2021. The Petitioner also moves this Court to set aside the relevant Judgments for the reasons stated in this Petition; to grant a stay of execution of the judgment of the Court of Appeal Judgment in SCA 10/2021 pending the determination of this Petition (which has already been dealt with), and to award costs to the Petitioner against the 1st Respondent.

28. What is not in dispute is that the Petitioner never raised any constitutional issues at all before any of the above tribunal and courts during the conduct of the cases through the Employment Tribunal, the Supreme Court or the Court of Appeal. The decisions of the Employment Tribunal were given in September, 2020. The Petitioner opted to appeal the said judgments to the Supreme Court. After the appeal judgment of the Supreme Court which was delivered in April 2021 the Petitioner further opted to appeal the Supreme Court judgment upholding the Employment Tribunal judgments to the Court of Appeal. Judgment of the Court of Appeal was given in December, 2021 and this Petition was filed in January, 2022. The Petitioner had several choices along the way on how to proceed in respect of the Employment Tribunal and Supreme Court’s decisions. The Petitioner opted to seek redress by appealing those judgments. We do not at all criticize or fault the Petitioner on its choices of redress against the judgments of Employment Tribunal and the Supreme Court. The question is when the civil appeal route chosen by the Petitioner has been exhausted, can the Petitioner now come back to the Constitutional Court to seek redress from the constitutional route.

29. In the case of Board in Brisbane City Council v Attorney General for Queensland [1979] A.C. 411, 425), the court cautioned on the need to balance access to courts and preventing abuse of the courts by shutting out meritorious applications on account of prohibition of re-litigation.

“when it is confined to its true basis, namely, the prohibition against re-litigation on decided issues, abuse of process ought only to be applied when the facts are such as to amount to an abuse; otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation.”

30. However, in the case of Muchanga Investments Limited v Safaris Unlimited (Africa) Ltd & 2 Others Civil Appeal No. 25 of 2002 [2009] KLR 229, the Kenyan Court of Appeal held the view that:

“The term abuse of court process has the same meaning as abuse of judicial process. The employment of judicial process is regarded as an abuse when a party uses the judicial process to the irritation and annoyance of his opponent and the efficient and effective administration of justice. It is a term generally applied to a proceeding, which is wanting in bona fides and is frivolous, vexatious or oppressive. The term abuse of process has an element of malice in it...The concept of abuse of judicial process is imprecise, it implies circumstances and situations of infinite variety and conditions. Its one feature is the improper use of the judicial powers by a party in litigation to interfere with the administration of justice. Examples of the abuse of the judicial process are:

98. 1. Instituting multiplicity of actions on the same subject matter against the same opponent on the same issues or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the action.

 

98. 2. Instituting different actions between the same parties simultaneously in different courts even though on different grounds.

 

98. 3. Where two similar processes are used in respect of the exercise of the same right for example, a cross appeal and a respondent’s notice. [emphasis ours].

 

98. 4. Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.”

We have given due consideration to the facts pleaded pertaining to this Petition which we find the very basis of this petition and we are persuaded that despite the Petitioner’s attempt to convince this Court otherwise, all the Petitioner’s contentions and demands emanate from the finding that the termination of the 1st Respondent’s employment was unlawful and the award of substantial compensation to the 1st Respondent. These were the same issues that went up to the apex court by way of civil appeals and which were decided in favor of the 1st Respondent.

31. We therefore find that in respect of the judgments of the Employment Tribunal, the Supreme Court and the Court of Appeal the Petitioner is seeking to make use of the Constitutional process to re-address the issues of termination of employment and length of service compensation which have already been decided by the civil courts right up to the Court of Appeal. It is our considered view that the Petitioner cannot now come back to choose a different route through the Constitutional Court after having exhausted the appellate route right up to the apex Court.

32. In respect of the judgments of the Employment Tribunal and the Supreme Court we also find that in contravention of Rule 4 of the Constitutional Court Rules, the Petitioner failed to file its case at the Registry of the Supreme Court within 3 months of those judgments. The Petitioner then failed to seek leave of the Constitutional Court as required by Rule 3(3). Without leave or an extension of time under Rule 3(4) this Petition cannot proceed further.

33. In respect of the judgment of the Court of Appeal, it is now settled law that any constitutional issue arising before the Court of Appeal should be raised and dealt with by the Court of Appeal as per the provision of Article 46(7) 0f the Constitution which provides that:

“Where in the course of any proceedings in any court, other than the Constitutional Court or the Court of Appeal, a question arises with regard to whether there has been or is likely to be a contravention of the Charter, the court shall, if it is satisfied that the question is not frivolous or vexatious or has already been the subject of a decision of the Constitutional Court or the Court of Appeal, immediately adjourn the proceedings and refer the question for determination by the Constitutional Court.” [emphasis ours].

 

34. The cases of Julita D’offay and Ors vs F. Louise and ors, SCA No 34/07 (unreported), and Mellie v Government of Seychelles & Anor (SCA CP 03/2019 (appeal from CS 04/2018) [2019] SCCA 40 are now recognized authorities that

 

“the Constitutional Court was right in holding as untenable the Appellant’s intention of obtaining a declaration from the Constitutional Court that the decision of the Court of Appeal is wrong through an allegation of contravention of Articles 19 and 21 of the Constitution”.

 

We hold the same to be true in respect of Articles 19 and 27 which have been pleaded here by the Petitioner. We also find that the Petitioner is raising contravention of the above articles of the Constitution which the Petitioner could have raised before the Court of Appeal as an abuse of process which if entertained by this Court would open a Pandora’s box of infinite litigation. This we cannot condone. We cannot adopt a process contemplated and rejected by Lord Diplock in Hunter v Chief Constable of West Midlands (1982) A.C. 529 at 536) which would be:

 

“…manifestly unfair to a party to litigation before it, or would otherwise bring the Administration of Justice into disrepute among right-thinking people.”

 

35. We find it not necessary to address objections (b) on whether the Petition has been drafted in conformity with Rule 5(1) of the Constitutional Court Rules since our findings on objections (a), (c) and (d) disposes of the Petition in its entirety.

Final Conclusion

 

[35] It is therefore our final conclusion and ruling that:

 

1. the Petition was filed out of time in violation of the requirements of rule 4(1) of the Constitutional Court (Application, Contravention, Enforcement or Interpretation of the Constitution) Rules in respect of ET 183/2018 and ET 185/2018 and CA 11/2020 ;

 

2. The Petition constitutes an abuse of process since the Petitioner freely opted to employ the civil appeal process as means of obtaining adequate redress.

 

3. The Petition is a disguised attempt to rehear unsuccessful appeals; and

 

4. The Petition is frivolous and vexatious and seeks to delay or deny the 1st Respondent the fruit of her victory despite the judgments in her favor by the Employment Tribunal, the Supreme Court and the Court of Appeal.

The objections are upheld pursuant to our findings and conclusion above.

 

36. We award cost to the 1st Respondent.

 

 

Signed, dated and delivered at Ile du Port on 13th June 2023.

 

 

 

C. G. DODIN J. (Presiding) E. CAROLUS J. D. ESPARON J.