Savoy Development Limited v Salum (MA 292 of 2023) [2023] SCSC 432 (13 June 2023)

PILLAY J:

1. The Application before this Court is for leave to be granted for the Applicant to appeal the ruling of this Court in MA188 of 2022 dated 7th December 2022 dismissing the appeal against the ruling in ET185/2018 before the Employment Tribunal dated 21st January 2022 (received by the parties on 11th March 2022) pursuant to the order in SCA 10/2021 which confirmed the ruling in ET 185/2018 that dismissal of Respondent was unjustified and orders including payment of salaries, compensation to Respondent from termination on 21st August 2018 to the final determination of the Tribunal proceedings in case ET 183/2018 and ET 185/2018.
2. The Application is supported by the affidavit of Alexandr Khlebnikov.
3. I have read through the Application, the Affidavit and the submissions filed by the Applicant and Learned counsel for the Applicant. Suffice to say that the Affidavit is more or less a repeat of the Affidavit filed in MA 293 of 2022. MA293 of 2022 has 5 extra paragraphs. The submissions do not in any way address the law applicable for applications of the present nature.
4. The Respondent objected to the Application and filed an affidavit in response. The objections were to the effect that:

1.         This Application and its affidavit are defective in that leave is being sought   to appeal a ruling in MA 188/2022 and such ruling on miscellaneous application 188/2022 is not exhibited to the Application;

2.         This Application is an abuse of process being: (i) a disguised attempt to rehear an unsuccessful appeal, (ii) harassing the judgment debtor from the fruits of her judgment in SCA 10/2022 and (iii) used to scandalize the entire      judiciary;

3.         That this Appeal has been dealt with by the ruling of the Supreme Court CA 6 of 2022 for which this Appeal was out of time; and

4.         The Application additionally, ought to be dismissed as the subject matter of the Appeal is Res judicata.

5. The Learned counsel for the Respondent has also filed submissions addressing the law applicable to application for leave to appeal as well as addressing the objections raised, the contents of which I have read through and considered.
6. The law with regards to applications for leave to appeal a decision of the Supreme Court is found in section 12 (2) of the Courts Act which provides thus:

(2)       (a)       In civil matters no appeal shall lie as of right –

                        (i)        from any interlocutory judgment or order of the Supreme Court; or

                        (ii)       from any final judgment or order of the Supreme Court where the only subject matter of the appeal has a monetary value and that value does not exceed 10 thousand rupees.

(b)       In any such cases as aforesaid the Supreme Court may, in its discretion, grant leave to appeal if, in its opinion, the question involved in the appeal is one which ought to be the subject matter of an appeal.

7. So what decision is it that the Applicant seeks to Appeal which would require leave of this Court?
8. By way of its notice of motion the Applicant seeks to appeal the ruling in MA188 of 2022 dated 7th December 2022 dismissing the appeal. The Affidavit in support is headed as being an “Affidavit in support of application for leave to appeal the ruling in MA188 of 2022 of 7th December 2022 and ET 185/2018 of 21st January 2022 (received by the parties on 11th March 2022) arising out of CA6 of 2022.
9. Mr. Khlebnikov at paragraph 13 of the Affidavit in support also avers that “Applicant has been severely prejudiced in the order of the Tribunal which failed to carry out the judgment of the Court of Appeal in SCA10/2021 and the Applicant seeks an urgent order of this Court for leave to appeal to the Seychelles Court of Appeal against the ruling of this honourable Court in MA188 of 2022 dated 7th December 2022 dismissing the appeal against the ruling of the Employment Tribunal judgment in case ET 185 of 2018 dated 21st January 2022…”
10. It is not in doubt therefore that the decision sought to be impugned is that found in MA 188/2022 which according to the Applicant dismissed the appeal against the ruling in ET 185 of 2018.
11. This leads us to the first objection raised by the Respondent.
12. What is MA 188/2022?  MA188/2022 was an application for “an order to grant leave for the Applicant to Appeal the ruling of this Honourable Court in MA57/22 dated 16th August 2022 refusing to grant a stay of the execution of Judgment of Court of Appeal in SCA 10/21 dated 17th December 2021”. That Application was dismissed on 7th December 2022 without being heard in view of the fact that the main appeal (CA 6/2022) from which the said MA188/2022 arose, was dismissed that same day.
13. The decision in MA188/2022 did not dismiss the appeal against the decision of the Employment Tribunal in ET185/2018. The appeal was dismissed in CA 6/2022. In his submissions Learned counsel for the Applicant attempted to correct this error by deleting MA 188/2022 and inserting instead CA 6/2022 in the first paragraph but omitted to do the same in paragraph 14 of his submissions. However, the affidavit being sworn evidence, counsel could not correct the error through his submissions.
14. Being clear that the Applicant is confused as to the decision against which it wishes to appeal the first objection succeeds there being no ruling in MA188/2022 dismissing any appeal from any decision of the Employment Tribunal.
15. While on the issue of defective affidavit, I find the findings of his Lordship Fernando PCA in Elmasry and Anor v Hua Sun (SCA 28/2019) [202] SCCA 2 (23 June 2020) relevant where he 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)

16. Similarly in the current matter the authority pursuant to which the deponent Alexandr Khlebnikov swears the affidavit in support has not been attached while the Rulings, Orders and Judgments referred to are attached. With the said defect in the affidavit, it cannot be relied upon.
17. With that said I do not propose to address the other objections as the above sufficiently deals with the matter at hand.
18. Before I end, let me just say that I am baffled by the averments made by Mr. Khlebnikov at paragraphs 8 and 9 of the affidavit which he states was information received from his counsel, repeated by Learned counsel for the Applicant at paragraphs 8 and 9 of his submissions. As clearly stated by both the matter is one which merits the exercise of the Courts discretion. Yet instead of convincing the Court by way of showing sufficient grounds for the exercise of the discretion both proceeded to go on tirade against the Judge and the Chairperson of the Employment Tribunal.
19. In conclusion, let me direct the attention of Learned counsel for the Applicant to the remarks of the Constitutional Court in the case of Poiret & Ors v The Seychelles Pension Fund & Ors (CP 05/2020) [2020] SCCC 553 (21 July 2020)
20. On the basis of the above the motion is dismissed with costs to the Respondent.

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

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Pillay J