Central Stores Development (Pty) Ltd v Herminie and Another (0) ((0)) [2005] SCCA 2 (24 February 2005);

 

IN THE SEYCHELLES COURT OF APPEAL

 

 

In the matter between

 

CENTRAL STORES

DEVELOPMENT (PTY) LTD Applicant

 

and

 

MINISTER WILLIAM HERMINIE First Respondent

 

DAVID CURTIS BENNETT Second Respondent

Before: Ramodibedi, P., Karunakaran J. A., Renaud, J. A.

============================================

Hearing on 3 February 2005

Judgment delivered on 25 February 2005

 

Mr. P. J. R. Boulle for the Appellant

Mr. B. Hoareau for the 1st Respondent

Mr. K. B. Shah for the 2nd Respondent

 

 

J U D G M E N T

 

Ramodibedi, P.

 

[1] It is no doubt appropriate to commence this judgment with a cardinal observation that it is a fundamental truism, indeed a well settled fundamental principle of our English common law on which the very foundation of our justice system is based, that justice delayed is justice denied. It is hardly necessary to state then that this principle weighed heavily with this Court in arriving at its decision in the instant matter. In this regard it will be noted that as far back as 20 August 1999 and acting in accordance with Section 65 of the Employment Act 1995 (“the Act”) the Minister responsible for employment (“the Minister”) made an award of compensation against the Applicant and in favour of the Second Respondent in the total amount of £41,730.28. This award was confirmed on review by the Supreme Court (Perera J) on 29 May 2002. No appeal was noted within the time allowed by the Rules. An application for leave to appeal out of time was refused by Perera J almost a year later, namely on 12 May 2003.

 

Notwithstanding all of these factors, the Second Respondent has still not enjoyed the fruits of the award he obtained six years down the line. On the contrary, the Applicant has approached this Court for special leave to appeal out of time thus further delaying the conclusion of litigation in the matter.

 

[2] The factual background to this case is hardly in dispute and can be summarized briefly in so far as is necessary for the determination of this matter. It all began on 1 February 1977 when the Applicant employed the Second Respondent as Senior Executive in terms of a written contract (“the contract”). His salary was fixed at £11,000 per annum. It was a specific condition of the contract that such employment would continue for a period of five years from the date of employment and thereafter until terminated by either party giving to the other not less than three calendar months previous notice in writing so as to expire on or at any time after the end of the period of employment in question.

 

[3] By letter dated 17 August 1994, the Applicant agreed that the Second Respondent would spend part of his time working for a company called Chelle Plastics Ltd. The Applicant added the following rider, however: “(we) agree to this but understand that you will continue to look after Central Stores Development Ltd” (the Applicant). By agreement, the Second Respondent’s salary was then reduced to £2500 per month. He, however, continued to enjoy allowances for housing, electricity and charges as well as two business class return tickets to the United Kingdom per year. His title continued to be that of Senior Executive as originally agreed.

 

[4] On 1 July 1998 the Applicant unilaterally terminated the Second Respondent’s employment verbally. This was followed by the Second Respondent invoking grievance procedures under the Act which in turn culminated in the Minister’s award referred to in paragraph [1] above.

 

[5] At the hearing of this matter on 3 February 2005 Mr. Boulle for the Applicant submitted in the forefront of his very interesting and attractive argument that Perera J in the court below had no jurisdiction to deal with the matter. As I understand it, the submission is that a Supreme Court Judge has no jurisdiction to hear applications for leave to appeal to the Court of Appeal notwithstanding the provisions of s. 12 of the Courts Act (Cap. 52) which reads as follows:-

 

12. (1) Subject as otherwise provided in this Act or in any other law, the Court of Appeal shall, in civil matters, have jurisdiction to hear and determine appeals from any judgment or order of the Supreme Court given or made in its original or appellate jurisdiction.

 

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

 

  1. from any interlocutory judgment or order of the Supreme Court; or

  2. 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 ten thousand rupees.

 

    1. 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.

 

    1. Should the Supreme Court refuse to grant leave to appeal under the preceding paragraph, the Court of Appeal may grant special leave to appeal”.

 

[6] On the view I take of this matter, it is strictly unnecessary to consider whether the contention advanced by Mr. Boulle as to jurisdiction is correct. The point would be best left for consideration in more deserving cases that may arise in future. I say this for two reasons:-

 

(1) The application for leave to appeal before Perera J was brought by the Applicant itself as dominus litis. Having deliberately chosen its forum, it cannot now lie in its mouth to challenge the jurisdiction of the learned Judge a quo when the decision has gone against it. Incidentally, and quite significantly, the Applicant has not even challenged the jurisdiction of the learned Judge a quo in its grounds of “appeal” filed on 30 July 2002.

 

  1. As is apparent from s. 12 of the Courts Act, this Court has general jurisdiction to hear appeals from any final judgment or order of the Supreme Court given or made in its original or appellate jurisdiction. In so far as interlocutory judgments or orders of the Supreme Court are concerned, an appeal only lies to this Court with leave of the Supreme Court. Where such leave is refused by the Supreme Court, this Court has a judicial discretion to grant special leave to appeal. Since the matter had been brought by the Applicant on “appeal” before this Court and was ripe for hearing, the Court was prepared to hear it in the interests of justice.

 

[7] It requires to be stressed that an application for special leave to appeal out of time is in the nature of an indulgence. Such application cannot be had for the mere asking. The Court has a discretion to be exercised judicially whether or not to grant it. It would thus be undesirable, and indeed inappropriate, to fetter the Court’s discretion in any way. Generally speaking, however, an applicant for special leave to appeal out of time must satisfy two requirements if he is to succeed namely:-

 

  1. he must give some reasonably satisfactory account for the delay in filing a notice of appeal timeously. Failure to do so may, depending on the facts of each case, justify the Court in dismissing the application on this ground alone;

 

(2)he must show, on a balance of probabilities, that there are prospects of success on appeal. This is so because, as a general principle, the Court will more readily grant special leave to appeal out of time where the merits of an appeal are strong than where the merits are weak.

 

[8] Now, it will be noted that it was with the above mentioned principles in mind that counsel were invited to deal with the merits of the appeal together with the application for special leave to appeal out of time and so it happened.

 

[9] It was submitted on behalf of the Applicant both in the court below and in this Court that its failure to file a notice of appeal timeously was due to the fact that there were no written reasons of judgment until the time within which to appeal had expired. In my judgment this explanation cannot be accepted as sufficient excuse for failing to file a notice of appeal timeously. The Applicant who was represented by an experienced attorney could easily have filed the necessary notice of appeal reserving its right to amend later should it be necessary.

 

[10] But there is, in my view, a more fundamental reason why this explanation falls to be rejected as the Court a quo correctly did. It is that Mr. Boulle for the Applicant was admittedly present in court when Perera J dismissed the Applicant’s application on 29 May 2002. Mr. Boulle himself has very fairly and properly conceded as much. That being so, he would have heard the reasons for judgment with his own ears. Accordingly, there is simply no reasonably satisfactory account why an appeal was not noted timeously. It follows in my judgment that the delay was inexcusable.

 

[11] A careful reading of the papers has indeed left me in no doubt that the decision not to appeal timeously was calculated and deliberate. This is so because the Applicant’s attorney, Miss Zatte, who deposed to an affidavit on 30 July 2002 in support of the notice of motion for leave to appeal out of time made the following revelations, in paragraph 2, 3, 4, 5, and 7 thereof which speak for themselves:-

 

2. On 30th May 2002, his Lordship Judge Perera delivered a judgment in the above case dismissing the Petition of the Appellant.

 

3. Subsequent to the delivery of the judgment mentioned in paragraph 2 above, I was instructed to prepare an appeal in the event if there were sufficient grounds to reverse the judgment.

 

4. Since the instructions mentioned in paragraph 3 above, I have made repeated requests to the Supreme Court Registry for a copy of the said judgment.

 

5. A copy of the judgment in the case was not received by myself until late on Friday 26th July 2002.

 

7. It was not professionally appropriate to file the Notice of Appeal before reading the judgment in view of the fact that the Notice and Memorandum need to be filed at the same time which would amount to Sr. 4900”.

 

[12] As is apparent from these paragraphs, the Applicant’s attorney took a well-calculated conscious act not to file an appeal timeously in circumstances where there was no justifiable excuse for failing to comply with the Rules. In particular, this Court rejects the explanation proffered in paragraph 7 of Miss Zatte’s affidavit. It would indeed be a sad day for our justice system if legal practitioners were to be allowed to flout the Rules in circumstances such as this. What if a particular judge in a given case does not deliver written reasons of judgment at all as often happens in some jurisdictions the world over as one seems to recall? Does that mean that is the end of the matter? What about the interests of the judgment creditor? Surely if that should happen, legal practitioners as officers of the Court cannot be allowed to compound the problem further. In this regard it cannot be stressed too strongly that flagrant disregard of the Rules will not be tolerated. Nor will condonation be granted as a matter of course as appears to be the attitude evinced in this case.

 

[13] On the question of prospects of success, it is right to say that the sole point consistently submitted on behalf of the Applicant both before the Minister and in the court below as well as in this Court is that the Second Respondent became a part-time worker with effect from 17 August 1994 when it was agreed that he would spend part of his time working for Chelle Plastics Ltd as fully set out in paragraph [3] above. The Respondents on the other hand have maintained throughout that the Second Respondent was in fact serving a contract of “continuous employment”. Both the Minister and Perera J upheld the Respondents’ contention.

 

[14] It follows from the aforegoing considerations, as it seems to me, that the merits of this case turn on a correct interpretation of the contract between the Applicant and the Second Respondent. As a starting point, it is useful to note that the Applicant does not seriously dispute that the contract signed on 1 February 1977 as fully set out in paragraph [2] above provided for continuous employment. As pointed out earlier, the Applicant’s contention is that the Second Respondent subsequently became a part-time worker. Before proceeding further, it is necessary therefore to determine the meaning of the terms “continuous employment” and “part-time worker”. The useful starting point is obviously the Act itself.

 

[15] Now, the term “continuous employment” is defined in the Act as “consecutive employment for an unlimited period”.

 

Consecutive employment” is in turn defined as “employment by the same employer for a minimum of 24 hours, or, irrespective of the period of work, a minimum of 3 days, a week”.

 

In passing, it will be observed that Perera J was, with respect, in error on page 6 of his judgment in referring to a “maximum” of 24 hours instead of a “minimum” as the Act clearly provides. Nothing turns on this slip however.

 

“Part-time worker” is defined as “a worker other than a casual worker and other than a worker on continuous employment or engaged for a fixed term”.

 

[16] It is necessary at this stage to say that whether or not a person is in continuous employment is a question of fact to be judged on the facts of each case. In this regard it is sufficient to say that in a commendable approach Perera J examined the matter closely and took the following factors into account:-

 

(1) That the contract between the Applicant and the Second Respondent dated 1 February 1977 was never amended to “accommodate the change” contended for by the Applicant. This indeed is undisputed.

 

(2) That the contract in question required the Second Respondent as Senior Executive to “conform to such hours of work as may from time to time reasonably be required of him” and that accordingly the Second Respondent qualified for continuous employment in terms of the definition of the term “consecutive employment”.

 

(3) That the words “looking after” contained in the parties’ agreement of 17 August 1994 necessarily meant that the Second Respondent would continue to work for the Applicant as its Senior Executive.

 

(4) That work done by the Second Respondent at Chelle Plastics Ltd was with the permission and blessing of the Applicant. It did not detract from the fact that the Second Respondent was in continuous employment with the Applicant.

 

[17] It is trite that every contract must be determined according to the circumstances belonging to it. See Brown v Overbury [1856] Exch. at 716, 717. Viewed in this context, Perera J’s approach and conclusion that the contract in question was one for continuous employment cannot be faulted. It is indeed an undisputed fact that this contract was never repudiated or amended. It must therefore be regarded as determinative of the matter. If the parties had intended any meaningful change in the status of the Second Respondent’s employment as being a continuous one, they would easily have said so in clear and unambiguous terms. In this regard it is pertinent to observe that in its letter of 17 August 1994 the Applicant did not say that the Second Respondent would no longer be in continuous employment.

 

[18] One final comment remains to be made. It is that Perera J’s approach and conclusion were on all fours with those of the Minister and rightly so on the facts. Since the matter before Perera J was for judicial review, the Applicant had to show that the Minister’s decision was characterized by (1) illegality, (2) irrationality and (3) procedural impropriety. See Council of Civil Service Unions v. Minister for the Civil Service [1985] A. C. 374 (HL) also reported in [1984] 3 ALL E.R. 935 (HL) at 950. The Applicant failed to establish any of these grounds for judicial review.

 

[19] In these circumstances, it follows that the application must fail. Accordingly, the application for leave to appeal out of time is dismissed with costs.

 

 

……………………………..

M. M. Ramodibedi

President

 

 

I concur: ……………………………..

D. Karunakaran

Justice of Appeal

 

 

I concur: ……………………………..

B. Renaud

Justice of Appeal

 

 

Delivered at Victoria, Mahe this 25th day of February 2005