Savoy Development Limited v Salum (MA 293 of 2022) [2023] SCSC 429 (13 June 2023)

PILLAY J:

1. The Applicant seeks an order staying the execution of “the Order of the Employment Tribunal in ET 185/18 dated 21st January 2022 pursuant to the Order in SCA 10/2021 dated 17th December 2021 which, inter alia, confirmed the ruling of the Employment Tribunal that the dismissal of Respondent was unjustified and ancillary orders including payment of substantial salaries compensation to Respondent from the period of termination on 21st August 2018 to the final determination of the Tribunal proceedings in case ET 183/18 and 185/18 dated 1st September 2020.”
2. The application is supported by the affidavit of Alexander Khlebnikov.
3. The Respondent filed preliminary objections along with an affidavit in support praying for the Application to be dismissed in its entirety. The preliminary objections are as follows:

1.         This application is an abuse of process being: (i) the 7th Application of its        kind, (ii) a disguised attempt to rehear an unsuccessful appeal and (iii) used     to scandalize the entire judiciary;

2.         The Application is defective in that the Affidavit does not contain the       necessary averments to meet the requirements of a stay of execution in law;        and

3.         The Application prolix and furthermore defective in that it is purported to    stay the execution of multiple rulings/judgments, namely SCA 10/2022,  and      ET 185/2018 as delivered on the 21st January 2022.

4. I do not propose to go on the merry ride that the Applicant wishes this Court to partake in. The Application is for a stay of execution of the Order of the Employment Tribunal dated 21st January 2022 pending an application for leave to appeal the ruling of the Court dated 7th December 2022 in CA6/2022 and that is the sole matter for consideration before this Court at this juncture.
5. While commending Learned counsel for the Respondent for his well thought-out and succinct arguments, as well as agreeing with him that this Court has no jurisdiction to stay the execution of a judgment of the Court of Appeal, I, however, have to disagree with him as regards this Court’s jurisdiction to hear the application at hand. The application as stated above is for a stay of execution of the order of the Employment Tribunal dated 21st January 2022. True it is that the said Order is in compliance with the Judgment of the Court of Appeal dated 17th December 2021 ordering the Employment Tribunal to “compute benefits due to Mrs Salum ... tak[ing] into account salaries she has earned at Fisherman’s Cove Hotel and deduct these from salaries she would have earned at Savoy Hotel between the date of her unjustified dismissal and the date of lawful termination…” However the Order of the Employment Tribunal stands on its own 21st January 2022 quite separate from the Court of Appeal judgment. That Order of 21st January 2022 was appealed against in CA6/22 which is the main case from which the current application emanates. As such this Court is the proper forum for an application of this nature.
6. What then is the law with regard to applications for stay of execution? Section 230 of the Seychelles Code of Civil Procedure provides that:

“An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from unless the court or the appellate court so orders and subject to such terms as it may impose. No intermediate act or proceeding shall be invalidated except so far as the appellate court may direct.”

7. In the case of International Investment Trading SRL (IIT) v Piazolla & Ors (2005) SLR 57 it was held that the power of the Court to grant or deny a stay is a discretionary one where the Court stated as follows:

There does not seem to be any specific and explicit provision of any statute which directly and expressly grant this Court power to stay execution of judgment pending appeal. It is only by inference from section 230 of the Seychelles Code of Civil Procedure, that this Court may draw such power.”

8. In Elmasry and Anor  v Hua Sun (SCA 28/2019) [2020] SCCA 2 (23 June 2020) his Lordship Fernando PCA set out guidelines for a decision on a stay of execution of a money judgment taking into consideration the provisions of Section 230 of the Seychelles Code of Civil Procedure and Rule 20(1) of the Seychelles Court of Appeal Rules as follows:

Where C has obtained a money judgment against D who appeals and applies for a stay of execution. C objects. The Court must ask the following questions:

Q1 Has D satisfied me that there is a substantial question of law to be adjudicated upon at the hearing of the appeal and that his appeal has a good prospect of success?-

If yes, proceed to Q2. - If no, a stay should not be granted.

Q2 Has D satisfied me that he will be ruined, or his appeal otherwise be stifled if forced to pay C immediately instead of after the (unsuccessful) appeal? –

If yes, a stay can be granted subject to considering the answers to Q4. - If no, a stay should not be granted unless a positive answer is given to Q3.

Q3 Has D satisfied me that there is no reasonable probability that C will be able to repay the monies paid to C by D? –

If yes, a stay should be granted, subject to considering the answers to Q4. - If no, a stay should not be granted.

Q4 What are the risks that C will be unable to enforce the judgment if the stay is granted and D’s appeal fails? Depending on the extent of that risk and other relevant circumstances can there be a compromise solution: payment of all or part of the relevant sum into court to await determination of the appeal; a stay only of part of the judgment sum; provision of security for part of C’s payment to D? A compromise solution should be a last resort, the basic rule being that a money judgment must be complied with, so that a claimant is entitled to recover the money straightaway and not to suffer further losses or lost opportunities in the period till the appeal is heard.

9. In formulating the above guidelines, his Lordship Fernando PCA observed that:

The sine qua non or the most important element that needs to be satisfied in seeking a Stay is to aver in the application and satisfy the Court prima facie that there are substantial questions of law and facts to be adjudicated upon at the hearing of the appeal. Merely stating that the applicants have an arguable case and the appeal filed has some prospect of success, is not sufficient. The affidavit filed in this case does not state why the Applicants believe that they have an arguable case or has some prospect of success.

10. The supposed submissions filed by Learned counsel for the Applicant is a rehearsal of the affidavit and the grounds of appeal without any attempt whatsoever to make any arguments in favour of the Court granting the application. The only effort made to refer to any case law is reference made to a case decided by this Court, Savy v Lebon and Anor CS 59 0f 2017, wherein counsel Lucy Pool was given time to file her defence after having filed a Defence raising points of law reserving her right to file on the merits at a later date which to my mind has no bearing on this matter at hand.
11. I will not deign Learned counsel for the Applicant nor the Applicant with a response to the allegations made against this Court or against the Chairperson of the Employment Tribunal other than to refer both to the case of Poiret & Ors v The Seychelles Pension Fund & Ors (CP 05/2020) [2020] SCCC 553 (21 July 2020) and the remarks made by the Constitutional Court in that case.
12. I also would like, at this point, to note the comments of Her Ladyship Andre JA at paragraph 86 in the above referred case of Savy v Lebon:

I observe that Jeanne D'Arc's cause of action against Lucie is unclear. The paragraph 18 (d) of the pleadings claimed that the agreement dated 8 April 2016, exhibit P1, was defective null and void inter alia as ″d. the 2nd Defendant prepared and attested an incomplete and incompetent legal document which failed to define and include the parties full identity; their capacities to sign the document and their legal rights under the law.″ … I am at a loss to understand what these averments are conveying. I have mentioned above that the plaint could have been more felicitously drafted.

The same can be said about the current application.

13. With that said I have to agree with the Learned counsel for the Respondent that the Application as well as the attached Affidavit is verbose and does not in any way contain the necessary averments to meet the requirements of the stay of execution in law.
14. The crux of this application is found at paragraphs 15, 16, 17 and 18 of the affidavit in support I do not propose to rehearse them here. The affidavit fails to explain how the appeal will be rendered nugatory if execution is allowed. I do not see how a general statement that “the Respondent has admitted in her evidence taking small sums from the float in the Hotel while earning a salary of R50, 000 per month showing a general lack of control and proper management of funds under her control” is relevant to the proceedings at hand.
15. Even if one was to accept that there is an appeal pending, which there isn’t as the motion for leave to file the appeal is still pending, and that the Applicant has a good prospect of success on appeal, the Applicant would still fail to satisfy the second hurdle above as laid down in Elmasry and Ano v Hua Sun having failed to satisfy this Court that he will be ruined, or his appeal otherwise be stifled if forced to pay the Respondent immediately instead of after the appeal.
16. In any event I note that in SCA MA 16/2021 involving the same parties in similar capacities Her Ladyship Twomey JA remarked that “with regard to the representative relationship of the deponent to the Applicant, and the requisite power of attorney, the Respondent raises a valid point.” Her Ladyship Twomey JA goes on to refer to Elmasry and Anor v Hua Sun (SCA 28/2019) [202] SCCA 2 (23 June 2020) where his Lordship Fernando PCA reiterated that:

The Power of Attorney has not been attached to the Affidavit. I am of the view that the Power of Attorney had necessarily to be attached as this Court is unable to know otherwise in which capacity the Applicants are before the Court. A mere statement that the Applicants are represented by …does not suffice…In the case of D.L. de Charmoy v P. L. De Charmoy, SCA MA08/2019 (17 September 2019) this Court stated: “In Re Hinchliff, A person of Unsound Mind, Deceased, [1895] 1 Ch 117, the Court of Appeal held that any document to be used in combination with an affidavit must be exhibited. In the same light any document to be used in combination with an affidavit in support of an application to stay execution must be exhibited to and filed with it. Counsel for the applicant should be mindful that the affidavit stands in lieu of the testimony of the applicant.” Re Hinchliff had been quoted with approval in the cases of Trevor Zialor v The Republic SCA MA 2017 (unreported 17 October 2017) and Marie-Therese Boniface v Maxime Marie SCA MA 01/2019 (unreported 28May 2017)

17. Similarly in the current matter the authority pursuant to which the Alexandr Khlebnikov swears the affidavit in support has not been attached while the Rulings, Orders and Judgments referred to are attached.
18. At this point noting all the above, I echo the words of His Lordship Dingake JA in SCA MA22/2021 that “it is plain to me that the applicant is determined to frustrate the respondent from enjoying the fruits of the judgment which she obtained in her favour.”
19. The application is accordingly dismissed.
20. On that basis the order for the interim stay of execution granted by his Lordship Esparon J on 11th January 2023 is vacated.
21. Costs are awarded to the Respondent.

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

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Pillay J