SUPREME COURT OF SEYCHELLES
Reportable
CA 06/2024
In the matter between:
ILE DU PORT HANDLING SERVICES (IPHS) Appellant
(Herein represented by its General Manager
Mr Daniel Hoareau
Of
Zone 14
Quincy Street
Victoria
Mahe
Seychelles)
(Represented by Mrs Aaisha Molle)
and
MERYL OCTAVE Respondent
Au Cap
Mahe
Seychelles
Neutral Citation: IPHS vs Octave (CA06/2024) (23rd September 2024)
Before: Adeline J
Summary: Preliminary objection against purported appeal.
Heard: By submissions
Delivered: 23 September 2024
RULING ON PRELIMINARY OBJECTION
______________________________________________________________________________
Adeline, J
By Notice of Appeal filed in court on the 29th February 2024, Ile Du Port Handling Services (“The Appellant”) commenced legal proceedings in the Supreme Court to appeal against the decision of the Financial Services Authority Appeals Board (“the Appeals Board”) in an undated ruling on which is afixed the stamp of the Appeals Board dated 22nd Janaury 2024.
On the 3rd July 2024, the Appellant filed its Memorandum of Appeal outlining the “Basis of Appeal” which is taken to mean the Appellant’s grounds of Appeal.
In response, Learned counsel for Meryl Octave (“the Respondent”) raised a preliminary objection based on the following grounds quoted from its reply, namely;
“2.1 Non-Compliance with statutory requirements as it does not comply with the ITZ Act, as read with the ITZ Regulations.
2.2 Improper jurisdiction, and
2.3 Lack of jurisdiction”.
Learned counsel moves the court to dismiss the purported appeal and to make any other orders or directions that the court deems fit and just in the circumstances.
Considering the grounds stated above as the basis upon which learned counsel for the Respondent relies to mount its objection, in substance, it is understood, that there is only one ground and that is, that this court has no jurisdiction to hear this purported appeal because in law the Appellant has no right of appeal from the Appeal’s Board to the Supreme Court.
Both parties, through counsel, did tender written submisisons for consideration.
The gist of Learned counsel for the Respondent’s argument emanating from its submissions, is that, the purported appeal should not be entertained by this court because it has no jurisdiction since it is against a decision relating to employment subject to the provisions of the International Trade Zone Act (“the ITZA”), regulated by the International Trade Zone Regulations (“ITZ Regulations”).
In that regard, it is submitted by learned counsel, that consequent upon an amendment to the ITZ Regulations by virtue of the International Trade Zone (Employment) (Amendment) Rgulations , SI 4 of 2022, referal to the Financial Services Authority Appeals Board (“the FSA AB”) is by virtue of Section 31 D quoted by learned counsel as follows;
“The function of the Minister under these regulations in respect of an appeal against a determinaiton of the Authority (the Financial Services Authority) shall be discharged by the Appeals Board established under Section 42 of the Financial Authority Act, 2013 (Act 19 of 2013) in place of the Minister”.
It is the submission of learned counsel, that there are no further provisions to appeal against the decision of the minister, and that any challenge of the Minister’s decision requires the invocation of the supervisory jurisdiction of the Supreme Court.
It is also the submission of learned counsel, that the Appellant has erroneously interpreted the provision of the Financial Services Authority Appeals Board Regulations, notably, that a party who is dissatisfied with the decision of the Financial Services Authority Appeals Board, acting in the Capacity of the minister, can appeal under the same regulations of the board.
It is further submitted by learned counsel, that Section 42 (1) of the Financial Services Act 2013, establishes the Appeals Board for the purpose of supervising and regulating financial businesses in the light of the functions of the Financial Services Authority which functions learned counsel submitted do not “encapsulate employment related matters”.
Learned counsel submits, that regulation 8 sub regulation 8 of the Financial Services Authority (Appeals Board) Regulations 2014 which says that a person who is dissatisfied with a decision of the Appeals board may appeal to the Supreme Court should not be misinterpreted because the Financial Services Authority Appeals Board is only relevant under the International Trade Zone regulations for the purpose of performing the functions of the minister.
Learned counsel also submits that, in this particulart case, the Financial Authority Appeals Board was exercising an executive functions, which as such, is subject to the Supreme Court supervisory jurisdiction. In essence, it is the submission of learned counsel, that regulation 8 of the Financial Services Authority (Appeals Board) Regulations, 2014 regulates the financial services business, and does not confer the Appellant with a right of appeal to the Supreme Court and the Supreme Court with the jurisdiction to hear the appeal because the appeal arises from an employment dispute between the parties.
In its submissions, learned counsel for the Appellant refutes the suggestion by learned counsel for the Respondent that, the Appellant has not complied with the provisions of the International Trade Zone Act and its Regulations. Learned counsel for the Appellant contends, that “all procedural and substantive law requirements of the Financial Services Authority (Appeals Board) Regulations 2014 have been complied with.
It is the contention of leared counsel, that the suggestion by learned counsel for the Respondent that this court lacks jurisdiction to hear this appeal is without merit given that the Appellant has the right under Regulation 8 (8) of the Financial Services Authority (Appeals Board) Regulation 2014 to bring this appeal before the Supreme Court, and the Supreme court does have the jurisdiction to hear the appeal.
I have read the submissions of both counsels with great enthusiasm and given due consideration to the arguments for and against the purported appeal. The gists of the submissions of learned counsel for the Respondent featured in his argument against the purported appeal is that there is no right of appeal to the Supreme Court of the decision taken by the Financial Services Authority Appeals Board given that this is an employment matter and the only option available to someone aggrieved by the decision of the Board is to invoke the Supervisory jurisdiction of the Supreme court which I understand it to mean to seek for judicial review.
In its submissions, inter alia, learned counsel has this to say, and I quote;
“The Respondent submits that the case strictly involves employment issues as provided under the International Trade Zone Act (ITZ) read with the ITZ regulations. Consequently, to an amendment to the ITZ regulations specifically S1 4 of 2022, International Trade Zone (Employment) (Amendment) Regulations, the only referral to the FSA AB arising purely by virtue of Section 31 D there in which provides”
The function of the Minister under these regulations in respect of an appeal against a determinaiton of the Authority shall be performed and discharged by the Appeals Board established under Section 42 of the Financial Authority Act, 2013 (Act 19 of 2013) in place of the Minister”.
Based on learned counsel’s position, it seems to me that he relies on Rule 39 under Part VII Miscellaneous Provisions of the International Trade Zone (Employment) Regulations, 1997, SI 13 of 1997 which reads as follows;
“39(1) subject to sub regulations (2) wherever an employer or worker is aggrieved by an authority, approval decision or determination of the Authority, the employer or the employers’ organisation on behalf of the employer may appeal against it to the minister.
(2) An appeal under subregulation (1), other than an appeal against a determination of the Authority consequent upon initiation of the grievance procedure, shall be lodged with the Minister within 14 days or such other period as may be prescribed after the date on which the Authority, approval, decision or determination was given”. (The underlined emphasis is mine)
My interpretation of Regulation 39 (1) subregulation (2) is that, under this provision the Minister had the power to hear appeals other than appeals against the Authority arising out after the initiation of the grievance prodecure, which learned counsel for the Respondent correctly argued has been taken over by the Appeals board subject to rule 31 D of the International Trade Zone (Employment) (Amendment) Regulations, 2022. Therefore, what the Minister used to do as its functions under Part VII of the Miscellaneous Provisions of the International Trade Zone (Employment) Regulations 1997 has been taken over by the Appeals Board.
However, true as this may be, given that this is a grievance relating to the termination of a contract of employment, I have had regard to Schedule 1 Part 1 of the International Trade Zone (Employment) Regulations, 1997. Regulation 4 under Schedule 1 Part 1 reads;
“4. The Authority seised of grievance relating to the termination of the worker’s contract of Employment or to refusal of access to employment shall, within 7 days after registration of the grievance, invite the worker, the union, if any, the employer and employers’ organisation, if any, for a consultation.”
Regulation 5(2) under Schedule 1 Part 1 reads;
“A determination by the Authority under this paragraph shall bemade within 42 days after the date of the registration of the grievance”.
Regulation 6 under Schedule 1 Part 1 reads;
“The employer or worker may, not later than 7 days after being notified of a determination by the Authority under paragraph 3(2) or paragraph 5(3) register an appeal to the Minister against that determination”.
In essence, therefore, a worker aggrieved by the determination of the Financial Services Authority had a right to appeal to the Minister under Regulation 6 of the International Trade Zone (Employment) Regulations, 1997 until the coming into force of the International Tade Zone (Employment) (Amendment) Regulations 2022 introducing Regulation 31D by which the Minister’s functions in respect of an appeal against the determination of the Authority have been taken away from it by the Appeals Board. For ease of reference, Regulation 31D reads;
“The function of the Minister under these regulations in respect of an appeal against a determination of the Authority shall be performed and discharges by the Appeals Board established under Section 42 of the Financial Services Authority Act, 2013 (Act 19 of 2013) in place of the Minister”.
Section 42(1) of the Financial Services Authority Act, 2013 reads;
“42(1) There is hereby established an Appeals Board for the purpose of this Act”.
Therefore, the functions of the minister having now been taken over by the Appeals Board, means, in effect, that appeals against the decision of the Financial Services Authority are heard by the Appeals Board that is regulated by Regulations prescribed under the Financial Services Authority (Appeals Board) Regulations, 2014.
The facts pleaded by the Appellant in its Memoradum of Appeal, show, that the Respondent had its contract of employment terminated by the Appellant on the 11th January 2023. Aggrieved by the decision, the Respondent filed a grievance before the Financial Services Authority which found that the terminatin of the Respondent’s contract of employment by the Appellant (Respondent then) was unjustified because it could not justify the termination by tendering sufficient evidence to discharge its burden of proof of the disciplinary offence alleged under Regulation 34 subregulation 5 of the International Trade Zone (Employment) Regulations 1977.
Aggrieved by the decision of the Financial Services Authority, the Appellant appealed against the decision to the Appeals Board mandated under regulation 31D of the International Trade Zone (Employment) (Amendment) Regulations, 2022 to hear the appeal. The Appeals Board, after hearing the appeal, partially upheld the decision and the order made by the Financial Services Authority. The Appellant now appeals to the Supreme Court against the decision of the Appeals Board.
It is this purported appeal that is a contentuous issue between the parties, one party arguing that the court doesn’t have jurisdiction to hear the appeal, the other arguing that it does not. In view that the purported appeal arises out of a grievance pertaining to employment, I have had regard to Schedule 1 Part 1 of the International Trade Zone (Employment) Regulations 1994. Regulation 4 reads;
“4. The Authority seised of a grievance relating to the termination of the worker’s contract of employment or refusal of access to employment shall within 7 days after the registration of the grievance, invite the worker, the union, if any, the employer and employers’ organisation, if any, for consultation”.
Regulation 6 reads;
“6. The employer or worker may, not later that 7 days after being notified of a determination by the Authority under paragraph 3(2) or 5 (30 register an appeal to the Minister against that determination”.
Therefore, my understanding of Regulation 6, is that after the Financial Services Authority has made its determination, the parties aggrieved by the determination had to appeal against it to the Minister whose function was to hear the appeal. By virtue of Regulation 31 D of the International Trade Zonce (Employment) (Amendment) Regulations, 2022 (SI 4 of 2022) such function has since been taken over by the Appeals Board established under Section 42 of the Financial Authority Act, 2013.
That leads me to the Regulations regulating the Appeals Board as prescribed under the Financial Services Authority (Appeals Board) Regulations, 2014 (SI 97 of 2014). Pursuant to Regulation 8 (7) (a) of the Financial Services Authority (Appeals Board) Regulations 2014, the Appeals board did affirm the decision of the Financial Services Authority on appeal in the instant case.
Regulation 8 (8) of the Financial Services Authority (Appeals Board) Regulations, 2014 reads;
“8(8) A person dissatisfied with the decision of the Appeals Board, may within 30 days of the decision, make an appeal to the Supreme Court”.
I am therefore of no illusion, that the Appellant does have a right of appeal against the determination of the Appeals Board to the Supreme Court by virtue of Regulation 8 (8) of the Financial Services Authority (Appeals Board) Regulations, 2014 and that this court is entrusted with the necessary jurisdiction to hear this purported appeal.
Consequently, therefore, the Respondent’s preliminary objection is overruled, and is accordingly dismissed.
Signed, dated and delivered at Ile du Port 23 September 2024.
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B Adeline, J
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