IN THE SUPREME COURT OF SEYCHELLES

Civil Side: CA28/2013
Appeal from Decision148/2012
[2016] SCSC 646

NATIONAL INFORMATION SERVICES AGENCY                     

versus

WINNIE CETOUPE

Heard:      28 July 2016

Counsel:   Ms Domingue for Apellant
           
                 Mr Chetty for Respondent
           
Delivered: 28 July 2016

JUDGMENT

Akiiki-Kiiza J

[1] This is an appeal from a decision of the Employment Tribunal on the following grounds:-

(1) That the Employment Tribunal erred in finding that the Respondent’s termination of employment was not justified.

(2) That the Employment Tribunal erred in finding that the termination date of the Respondent’s employment should be the date of the Tribunal’s judgement as it failed to take into account the reasons for the delay in the disposal of the case. Consequently, the Employment Tribunal erred in making awards in favour of the Respondent up to the date of the Judgment of the Employment Tribunal.

[2] On his part, the Respondent raised a Plea in Limine Litis which, I intend to dispose of before considering the appeal on its merits. It is the Respondent’s submission that, the appeal ought to be dismissed on the ground that the Memorandum of Appeal is devoid   of a prayer contrary to the provision of Rule 12 of the Appeal Rules.

[3] The procedure is to be followed while handling appeals to this Court is laid down by Rule 27 of the Appeal Rules (SI 11/1961). This rule provides as under:-
“27 (1) Where an Act allows an appeal to the Supreme Court from an order or decision of any commissioner or other tribunal or officer the procedure in such an appeal shall be in accordance with such Act and regulations there under”

[4] It appears however, there is no specific procedure regarding the method of appealing from the decision of the Employment Tribunal to the Supreme Court under the Employment Act. This means that the usual procedure governing civil appeals from lower Courts to the Supreme Courts is applicable.

[5] Rule 11 of the Appeal Rules prescribes the methods of appealing and provides as follows:-

“11. If the Appellant wishes to proceed with the Appeal he shall deliver to the clerk of the Court a Memorandum of Appeal”.
The contents of the Memorandum of Appeal is provided under Rule 12 of the same rules as follows:-

“12. The Memorandum SHALL contain a concise statement in numbered paragraphs of the point or points on which the Judgment is alleged to be erroneous or narrative and Concise prayer for the relief claimed.”(Emphasis mine)

[6] The Memorandum of Appeal as filed by the appellant is in the following form:-

“Memorandum of Appeal

1. The Employment Tribunal erred in finding that the Respondent's termination was not justified.

2. The Employment Tribunal erred in finding that the termination date of the Respondent’s employment should be the date of the Judgement of the Employment Tribunal as it failed to take into account the reasons for the delay in the disposal of the case. Consequently, the Employment Tribunal erred in making the awards in favour of the Respondent up to the date of the judgment of the Employment Tribunal.
In Victoria on Thursday 2nd of June 2014.

KAREN DOMINGUE, APPELLANT’S ATTORNEY.”

[7] It is clear from the above that the learned counsel for the Appellant did not include a concise prayer for the relief he is seeking from this Court. This is contrary to the provision of Rule 12 of the Appeal Rules.
The word SHALL is used in its body, connoting conformity with what it provides. In the cases of The Republic vs Essex County Court Judge (1887) 18 Q.B.D 704, LOPES LJ, held as follows:-
“That Act gave a new jurisdiction and a new procedure, the new forms and new remedies thus prescribed must be strictly complied with”
This passage was cited with approval by Mauritius Court of Appeal in the case of CHOPPY & ORS VS CHOPPY & ANOTHER [1956 -62] volume 2 SLR 63.
Applying the above provisions of the law (Rule 12 of the Appeal Rules) to the facts of this case, I find that the Appellant did not comply with the provisions regarding the contents of the Memorandum of Appeal as prescribed by this rule as it contains no prayer or relief he is seeking from this Court. On that ground alone, I would dismiss the appeal as incompetent.

[8] Be it as it may, and assuming that the Memorandum of Appeal had conformed with the law. I will examine the appeal on its merits. The first ground of appeal has been put in the following terms:-

“1. The Employment Tribunal erred in finding that the Respondent’s termination was not justified.”
With due respect to the Appellant, I tend to agree with the learned counsel of the Respondent that this ground is rather vague and too general contrary to the provisions of Rule 12 of the Appeal Rules set out above. The Rule talks of the “Memorandum shall contain a concise statement”.

[9] The chambers 21st Century dictionary defines the word concise as:-

“Brief but comprehensive”
In other words the Memorandum of Appeal must give enough details so as to bring out the complaint against the trial court/tribunal and why the Appellant Court should intervene.

[10] In any case, though the learned counsel for the Appellant tried to expound on what she meant, the Employment Tribunal had the opportunity to see the witnesses from both sides testify before it, which unfortunately this Court does not have. “Generally and in most cases the issues regarding demeanours of witness is discretionary in nature and left to the trial Court, unless of course it was an error of law or the discretion was made without proper appreciation to the facts, or the decision was so unreasonable that it was erroneous or it was made injudiciously. (See case of VERLAQUE VS GOVERNMENT OF SEYCHELLES, SCA, No 8/2000).

[11] From my perusal of the lower Tribunal record, I find that the Employment Tribunal used or applied the discretion in believing the Respondents witnesses instead of those of the Appellants properly and therefore I find no reason to disturb its findings in this regard.

[12] As for the second ground of appeal regarding the date of termination the Respondents employment as the date when its judgment was read to the parties and hence the  calculations starts from that date and the Tribunal thereby failing to take into account, some adjournments at the instance of both the Respondent and the Tribunal itself, the Employment Tribunal found that the termination of the applicant was not justified and ruled that she should be paid all her legal fees due until the date of lawful termination, which was the date it gave its Judgment. The Seychelles Court of Appeal recently in the case of European Hotel Resort Seychelles, Kempinski Seychelles vs Neddy Nourrice, SCA, Civil Appeal No 23/2013  held, inter alia, that where the Employment Tribunal determines that the termination was justified, lawful termination would take place at the time of actual termination by the employer. But where it is determined that the termination on was not justified but cannot recommend reinstatement, the termination would take place on the date of the determination of the employment by the Tribunal. In other words on the date the Tribunal gives the judgment.

[13] I see no reason to differ from the Tribunal’s holdings in this case as it is supported by the law. The mere fact that the case had been adjourned a couple of times does not in my considered view alter this position. In the premises it is my finding that the appeal had no merit and it would be dismissed.

[14] All-in-all, as I had earlier found that the Appeal was incompetent due to none conformity with the provision of Rule 12 of the Appeal Rules and also it is dismissed in the merits. The Respondent will have taxed costs.

[15] Order accordingly.

Signed, dated and delivered at Ile du Port on

Akiiki-Kiiza J

Judge of the Supreme Court