24/7 Company v Bertin (MC 17 of 2024) [2024] SCSC 197 (5 December 2024)

24/7 Company v Bertin (MC 17 of 2024) [2024] SCSC 197 (5 December 2024)

Page 4 of 4

 

SUPREME COURT OF SEYCHELLES


 

Reportable

MC 17/2024

 

In the matter between:

24/7 COMPANY Applicant

Electing domicile in

The law chambers of Alexia Amesbury

(Represented by Mrs Alexia Amesbury)

 

and

 

MICHEL BERTIN Respondent

Of Cascade, Mahe

(Represented by Mrs Aishah Molle)

 

Neutral Citation: 24/7 Company vs Bertin (MC 17/2024) (5 December 2024)

Before: Adeline J

Summary: Application for leave to file appeal out of time.

Heard: By submissions

Delivered: 5 December 2024

 

FINAL ORDER

 

 

Motion is granted, and accordingly, an extension of time to file notice of appeal out of time is granted, to be filed within 14 working days as of today.

 


 

RULING ON MOTION


 

Adeline, J

  1. This ruling pertains to an application for leave to file notice of appeal out of time made by way of notice of motion filed in court by 24/7 Company (“the Applicant”) against one Michel Bertin of Cascade, Mahe, Seychelles (“the Respondent”). The Applicant has brought this application pursuant to rule 1 read with rule 5 of the Appeal Rules (SI 11 of 1961) (“the Rules”) made under the Courts Act, Cap 52 of the laws of Seychelles. By this application, the Applicant applies to this court for an extension of the time prescribed to file an appeal against the judgment of the Employment Tribunal.

  2. The motion is duly supported by an affidavit of facts and evidence, deposed by one Marcel Naiken, a director of the Applicant on whose behalf learned counsel tendered written submissions for consideration.

  3. In its affidavit of facts and evidence in support of the application for an extension of time to file notice of appeal, inter alia, Marcel Naiken, the deponent, makes the following averments which I consider to be most relevant;

2. That the Respondent obtained judgment against the company 24/7 in ET NO 18/2023 in the sum of SCR 159,627.64.

3. That I have filed an Intended Notice of Appeal out of time against the said judgment. It is hereby produced and exhibited herewith marked MN1 Copy of the Intended Notice of Appeal.

4. That the judgment was delivered on the 12 January 2024 but the said judgment was allegedly posted by the court on the 24th January 2024. It is hereby produced and exhibited herewith marked MN2, copy of the said document.

5. On the above exhibit the document was posted but to date never received by the Applicant. I aver that the only time I saw copy of the judgment was when I obtained a copy from Atalla the process server who came to the business premises to execute the seizure of the company’s H1.

6. That based on the above, it is necessary and in the interest of justice that leave is granted for me to file my appeal out of time as the judgment was not delivered nor handed over to me in time for me to appeal with the mandatory 14 days.

7. I aver that as a result of not receiving copy of the judgment in time, I have been denied my right of appeal within the stipulated 14 days”.

  1. The Respondent opposes the application, and in reply, it did file an affidavit. In its affidavit, inter alia, the Respondent makes the following averments;

3. That the Employment Tribunal delivers its ruling in FT 18/2013 on the 12th January 2024 in my favour for the sum of SCR 154,627.64.

4. That the Applicant had 14 days from the date of the judgment to submit a notice of appeal of the said judgment but failed to do so despite knowingly that the said judgment has been delivered and that the said case was before the Employment Tribunal.

5. That the Applicant only filed this notice of appeal, albeit out of time, after the court’s process server came to its business premises to execute the judgment.

6. That the Applicant failed and neglected to lodge this notice of appeal within the prescribed time frame which could have been on the 1st February 2024. The notice of appeal was filed on the 15th March 2024, well beyond the prescribed limit of fourteen days for filing of appeals from the Employment Tribunal to the Supreme Court.

7. That if the appeal is allowed, it will cause serious prejudice and furthermore, the Applicant does not have an arguable case for the court to grant the application for the Applicant to file its notice of appeal out of time.

8. The reasons set forth by the Applicant in its supporting affidavit are opposed since the Applicant was aware that the said judgment has been delivered and the onus was on the Applicant to act within the time to file its Notice of Appeal within the prescribed time.

9. That the rules of the court should be obeyed by adhering to the specified time line for filing of appeals and as such, the notice of appeal has been filed well over two months after the judgment has been delivered.

10. That I verily believe that the Applicant failed and neglected to abide and respect the time allocated to file notice of appeal, and the court ought not to allow leave of appeal out of time.

11. For the reasons mentioned above, I pray this Honourable court to dismiss the application to file notice of appeal out of time”.

  1. In sum, the affidavit evidence shows, that the Respondent in this application, who was the Applicant then, did file before the Employment Tribunal an application as ET 18/2023 against the Applicant who was the Respondent then, claiming some terminal employment benefits. In a judgment of the Employment Tribunal delivered on the 12th January 2024, the Applicant was ordered to pay the Respondent a total sum of SCR 159,627.64.

  2. The Applicant who had 14 days from the 12th January 2024 to appeal against the said judgment did not do so. Given that time to file notice of appeal has now lapsed, the Applicant seeks for an extension of time to file notice of appeal.

  3. Annexed to an intended Notice of Appeal, is a Memorandum of Appeal stating the following;

1. The Employment Tribunal erred by making an award of Seychelles Rupees 159,627.64 without asking the Respondent at the very least to produce his work contract. Had it done so, it would have seen that the Respondent had “A letter of appointment” to show that he was on a six months’ probation and not yet confirmed in the post of security officer.

2. The calculation conducted by the Tribunal was totally erroneous as the Respondent was not entitled to one year salary plus 13th month salary nor compensation for length of service of 14 months. Not even having completed his probationary period of six months.

3. The entire calculation by the tribunal was completely erroneous as the Respondent had no contract, but simply a letter of appointment in which it was clearly stated that he would be on probation before he court be confirmed in the job and this time Tribunal failed to obtain as an exhibit”.

SUBMISSIONS

  1. In its submissions in opposition to the application, learned counsel for the Respondent, submits, that this court does have a discretion to allow or not to allow an appeal out of time, and that in exercise of its discretion there are certain factors that it ought to take into account. That include the length of the delay, the reasons for the delay, the degree of prejudice to the Defendant and whether there is an arguable case on appeal.

  2. In regard to the length of the delay, it is the submission of learned counsel, that it is almost two months since the court a quo delivered its judgment and that the Applicant only considered appealing against the judgment of the Employment Tribunal at the stage of execution of the judgment. Learned counsel cited the case of Kannus Supermarket vs Vaithiyanathan Uthrapathy (MA 200 of 2020 [2021] SCSC 320) in which case the court allowed the application because the delay was only 7 days rather than almost two months. Learned counsel also cited the case of Lesperance v Bastienne & Ors (MA 324/2021) [2022] SCSC (18 October 2022) where the delay was one year, ten months and the court granted an extension of time.

  3. It is submitted by learned counsel, that it cannot be good reason for failing to file notice of appeal within time because the Respondent was awaiting for a copy of the judgment. Learned counsel submits, that the Applicant upon becoming aware that the judgment was in favour of the Respondent could have filed notice of appeal. Learned counsel also submits, that the Applicant has failed to demonstrate good cause for failing to comply with the rules. It is the submission of learned counsel, that if the appeal is allowed, it will cause serious prejudice to the Respondent who has a judgment delivered in its favour, and that is so because the judgment is just and fair and the Applicant has no chance of success in the event that leave is granted.

  4. It is also the submission of learned counsel, that rules of court are there to be followed, and that the case of Aglae vs Attorney General SCA No 35 of 2010 makes that very point when the court had this to say;

The rules of court must prima facie be obeyed, and in order to justify in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the court requires otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to be provided a time table for the conduct of litigation”.

  1. Learned counsel submits, that this court must take the same approach it took in Amelie & Ors vs Cable and Wireless (Sey) Ltd (MC 44/202) [2023] SCSC 227, in which case a similar application was dismissed due to the length of delay which was six weeks, and the Applicant had failed to show good cause to justify non-compliance with the prescribed time limit. It is the submission of learned counsel, that to reach that conclusion, the court considered the criteria in the case of Michel vs North Island (Pty) Ltd.

  2. In its submissions supporting the application, learned counsel for the Applicant proceeds from the premises, that the court has a duty to uphold the right to be heard principle. Learned counsel submits, that a relevant consideration by the court is whether the intended appeal is frivolous or vexatious or has been filed not with a bona fide intention of seeking to reverse the judgment or order appealed from but for some ulterior motive such as to buy time or harass the other party. Learned counsel submits, that the appeal does have merits because there are serious questions of legal procedure, facts and law to be adjudicated upon.

  3. It is the submission of learned counsel, that the Employment Tribunal awarded the Respondent SCR 159,627.64 without even having had sight of the Respondent’s employment contract subject to a letter of appointment indicating that the Respondent was employed on a six months probationary period. Learned counsel submits, that the Respondent who had not even completed its probationary period could not have been entitled to one year salary, plus a 13th month salary nor compensation for length of service of 14 months.

  4. I am somewhat perplexed by the other aspects of learned counsel for the Applicant’s submissions which seem to be focussing on stay of execution of the judgment rather than whether, on the facts and circumstances of this case, an extension of time to file notice of appeal out of time should or should not be granted. By motion, the Applicant pleads for an extension of time to file notice of appeal. Therefore, submissions on stay of execution has no relevance to the pleadings and cannot therefore be taken into account.

  5. To determine this application for an extension of time, it is pertinent to put the law in perspective. Rule 5 of the Appeal Rules [SI 11 of 1961] reads as follows;

Any party desiring an extension of time prescribed for taking any step may apply to the Supreme Court by motion, and such extension as is reasonable in the circumstances may be granted on any ground which the Supreme Court considers sufficient”.

  1. In its submissions above, learned counsel for the Respondent does cite the case of Aglae v Attorney General SCA No 35 of 2010 [unreported] citing with approval the words of the Privy Council in Ratnam v Curmarasamy [1964] ALLER 933, quoting from it the relevant extract emphasising on the need to adhere to rules of court. It is within this background that I consider this application for an extension of time. In an English case Revici v Prentice Hall Incorporated [1969] 1 ALLER 772, Edmund Davis Lj, at Page 774 the court had this to say;

“… The rules are there to be observed, and if there is non-compliance (other than of a minimal kind) that is something which has to be explained anyway. Prima facie, if no excuse is offered, no indulge should be granted.”

  1. On the facts as transpired in the affidavit evidence, the Employment Tribunal delivered its judgment on the 12th January 2024, and the notice of appeal was not filed within the limitation period of 14 days from the judgment date. For this reason, the Applicant now applies to this court for an extension of time to file notice of appeal. In the case of Parcou v Parcou SCA 32 of 1944, LC 93 in which case the Court of Appeal cited the case of Farm AG v Barclays Bank SCSC 2002, the court reminds us that courts have an unfettered discretion to decide whether or not to grant an extension of time to file notice of appeal out of time after considering the length of the delay, the reasons for the delay, whether the Respondent would be prejudice if an extension of time is granted, and whether the Applicant has an arguable case for a possible successful appeal.

  2. The judgment of the Employment Tribunal was delivered on the 12th January 2024, and this application was filed on the 15th March 2024. Therefore, the Applicant is almost two months outside the time limit. To some people this time period may be excessive. To others it may not be. In Lesperance (supra) the delay was over one year 10 months and the court still granted an extension of time. The reason given by the Applicant for not having adhered to the time limit is that it was awaiting for a copy of the judgment. I would agree with learned counsel for the Respondent, that this cannot be good and sufficient cause because if the Applicant had exercised due diligence, it would have come to know what the outcome of the case before the court a quo was. Furthermore, one doesn’t need a copy of the judgment to file notice of appeal.

  3. The Applicant in the case of Eden Holistic Spa (Pty) Limited v Woodlands Holding Limited (CA 15 of 2020) [2021] SCSC 693 (20th October 2021) succeeded after the court found that the Applicant was late for 4 days and there were serious issues to be tried. In Kannus Supermarket v Vaithiyanathan (MA 200 of 2020) [2021] SCSC 320 (14 June 2021), although the application was late by 8 days, the Applicant still succeeded in obtaining an extension of time. In the English Case of Germain v Republic Crim 1(a) 2005, 5 March 2007, the court stated, inter alia, that in deciding whether or not to grant leave to appeal out of time, the court has to take into account all the circumstances of the case including the intention of the Applicant, diligence of counsel, explanation for the delay, extent of the delay, prejudice to the Respondent and the merit of the application in general.

  4. Based on some of the factors I have taken into account in determining this application, I have not been persuaded that the delay can be condoned. Clearly, the Applicant could have filed its notice of appeal without the need for a copy of the judgment had the Applicant or counsel acted diligently. However, having read the grounds of appeal in the memorandum of appeal, I am persuaded, that there are serious questions of law to be tried and that the Respondent shall not be prejudiced should the court grant an indulgence and an extension of time.

  5. Amongst the grounds of appeal in the memorandum of appeal, it is alleged, that the Employment Tribunal awarded the Respondent (the Applicant in the court a quo) SCR 159,627.64 without its contract of employment produced in evidence, thus failing to take into account that the Respondent was on a probation period of six months. It is also alleged, that there have been errors in the computation of the award given that the Respondent was not entitled to one year salary plus a 13th month salary nor compensation for length of service of 14 months.

  6. Therefore, all in all, although the Applicant has not made up a strong case for an extension of time to file notice of appeal, I am persuaded, that there are serious questions of law and facts to be tried amid the allegations raised by the grounds of appeal, and that an indulgence has to be granted to avoid a possible injustice.

  7. I therefore grant the Applicant an extension of time to file notice of appeal out of time to be filed within a period of 14 working days as of today.


 

Signed, dated and delivered at Ile du Port 5th December 2024.


 

____________

Adeline J


 


 

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