Appeals and reviews

Albert v Hill View Resorts (Seychelles) Ltd (CA 21 of 2021) [2022] SCSC 668 (21 July 2022);

Franzisca Mitterer — Mon, 29 Aug 2022 09:52:50 +0000

Albert v Hill View Resorts (Seychelles) Ltd (CA 21 of 2021) [2022] SCSC 668 (21 July 2022);

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Appeals and reviews

Franzisca Mitterer Mon, 08/29/2022 - 09:52

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Preliminary objection

Headnote and holding

ORDER

The Respondent raised a preliminary objection to the fact that the Appeal has been lodge out of time. The preliminary objection is dismissed.

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2022-scsc-668.pdf

2022-scsc-668.docx

INTRODUCTION

This is an Appeal against the Judgment of the Employment tribunal in case ET No 07 of 2020 delivered on the 10^th August 2021. The Respondent filed a preliminary objection in the matter namely that the Respondent objects to the hearing of Appeal on the basis that it has been filed out of time and hence the Appellant are accordingly prescribed.

SUBMISSIONS OF COUNSEL

On the issue of the preliminary objection, Counsel for the Respondent relied on Section 4 of Schedule 6 of the Employment act, Section 6 of the Appeal rules (S.I 11 of 1961) made under the Courts Act to the fact that the Respondent has 14 days from the decision of the Employment Tribunal to file a notice of Appeal in the Supreme Court.

Counsel for the Respondent further submitted that neither the Court of Appeal rules nor the Employment Act defines days in order to assist us in the computation of the time. Hence we have to take the computation of time as the normal calendar days instead of Court days. Learned Counsel for the Respondent submitted that because of this, we have to turn to the Interpretation and General Provisions Act for guidance.

Therefore Counsel for the Respondent relied on section 57 of the Interpretation and General Provisions Act and submitted that the effect of the said provision whereby one has to exclude the day that the event has happened and also we do not count the last day of filing the Appeal. He further submitted that public holidays and holidays under the bank institutions act are considered as excluded day under the said provision and as such if the last day for filing an Appeal falls on an excluded day, that day does not count and hence the final day would be the following day.

He further submitted that the provisions of the Interpretation and General provisions Act, should be read with the public holidays Act which defines what is a public holiday of which it is defined as a close holidays in all Courts of law, government offices and banks and shall be legal holidays for all persons throughout Seychelles of which Sundays are also considered as public holidays.

Counsel for the Respondent submitted that since the decision of the employments Tribunal was delivered on the 10^th of August, 2021 and the Notice of Appeal was filed on the31^st of August 2021 of which the Notice of Appeal was filed 21 days after the decision was delivered. He further submitted that if we count the 4 excluded days being 3 Sundays and a public holiday the Notice of Appeal would have been lodged 17 days after the decision of the Employment Tribunal was delivered and hence the Appellant is out of time.

Counsel for the Appellant made similar submissions before the Court as regards to the law relating to the computation of time for filing the Notice of Appeal. However in addition Counsel for the Appellant relied on an amendment to the law namely the Civil Code of Seychelles Act Consequential amendment which provides that Saturdays shall also be considered as an excluded day. To this effect Counsel for the Respondent also conceded to the fact that as a result of the amendment Saturdays shall now be considered as an excluded day.

Counsel for the Appellant further submitted that the Appellant was well within the prescribed limit of 14 days for filing the Appeal.

THE LAW

Schedule 6, paragraph 4 of the Employment Act provides that ’ Any person against who judgment has been given by the Tribunal may Appeal to the Supreme Court subject to the same conditions as appeals from a decision of the Magistrate’s Court.

S I 11 of 1961 as regards to the Appeal rules made under the Courts Act namely rule 27(1) which provides that ‘where an Act allows an Appeal to the Supreme Court from an Order or decision of any commissioner or Tribunal or officer, the procedure of such Appeal shall be in accordance with such an Act and Regulation thereunder and subject thereto and in respect for the matter for which has not been provided for, in accordance with these rules.

Rule 6(2) of the Appeal rules made under the Courts Act provides that the Notice of Appeal shall be delivered to the Clerk of the Court within 14 days from the date of the decision Appealed against.

Rule 5 of the same Rules provides that 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.

The above sections of the Law has the effect that an Appeal from the Employment Tribunal follows the same procedure as an Appeal in civil cases from the magistrate court to the Supreme Court and hence the Appellant has 14 days to file his Appeal in the Registry of the Supreme Court from the decision of the Employment Tribunal in default of which an Application must be filed to the Supreme Court asking for leave and as such the Court may grant such leave on any ground which Court considers sufficient.

Since day is not defined in the Employment Act then we have to the turn to Interpretation and General Provisions Act in order to assist this Court in the Computation of time in filing an Appeal.

Section 57 of the Interpretation and General Provisions Act provides the following;

a period reckoned by days from the happening of an event or the doing of any act or thing is exclusive of the day on which the event happens or the thing ;

where a period is expressed to begin or end at , on or with a specified day or to continue to or until a specified day, the period shall include that day;

where a period is expressed to begin after or to be from a specified day the period shall not include that day;

where the last day of a period is an excluded day, the period includes the next following day ( not being an excluded day; and

where an act or proceeding may be or is required to be done or taken on a certain day and that day is an excluded day, the act may be done or the proceeding taken on the next following day (not being an excluded day)

This Court takes notice that there was an amendment made to the Interpretation and General Provisions Act by (act 24 of 2021) in the Civil Code of Seychelles (Consequence of Enactment) Act, 2021. Section 4 of the said Act now defines excluded day as a Saturday, a public holiday, or a bank holiday declared under section 64 of the Financial Institution Act.

The effect of the above provisions and amendment thereon is that Saturday, Sunday and public holidays are excluded days for the purpose of computation of time for the filing an appeal so is the day of the decision of the Court or Tribunal and the last day for the filing of an Appeal should not be counted for the purpose of computation of time in filing an Appeal to the Supreme Court from the Employment Tribunal.

DETERMINATION

This Court notes that that the decision of the Employment Tribunal was delivered on the 10^th of August 2021 and the Notice of Appeal has been filed on the 31^st August 2021 which is 21 days after the decision of the Employment Tribunal. This Court has made the calculation and found that there are 7 excluded days including Saturdays, Sundays and public holiday during that period of which I am of the view that the Appellants have filed their Appeal 14 days from the said decision of the Employment Tribunal. Hence this Court finds that the Appellants were well within the prescribed time limit when they lodged their Notice of Appeal.

As a result of the above paragraph 15 of this Ruling, the preliminary objection raised by the Respondent is hereby dismissed.

Signed, dated and delivered at Ile du Port on 21^st July 2022.

____________

Esparon J

INTRODUCTION

This is an Appeal against the Judgment of the Employment tribunal in case ET No 07 of 2020 delivered on the 10^th August 2021. The Respondent filed a preliminary objection in the matter namely that the Respondent objects to the hearing of Appeal on the basis that it has been filed out of time and hence the Appellant are accordingly prescribed.

SUBMISSIONS OF COUNSEL

On the issue of the preliminary objection, Counsel for the Respondent relied on Section 4 of Schedule 6 of the Employment act, Section 6 of the Appeal rules (S.I 11 of 1961) made under the Courts Act to the fact that the Respondent has 14 days from the decision of the Employment Tribunal to file a notice of Appeal in the Supreme Court.

Counsel for the Respondent further submitted that neither the Court of Appeal rules nor the Employment Act defines days in order to assist us in the computation of the time. Hence we have to take the computation of time as the normal calendar days instead of Court days. Learned Counsel for the Respondent submitted that because of this, we have to turn to the Interpretation and General Provisions Act for guidance.

Therefore Counsel for the Respondent relied on section 57 of the Interpretation and General Provisions Act and submitted that the effect of the said provision whereby one has to exclude the day that the event has happened and also we do not count the last day of filing the Appeal. He further submitted that public holidays and holidays under the bank institutions act are considered as excluded day under the said provision and as such if the last day for filing an Appeal falls on an excluded day, that day does not count and hence the final day would be the following day.

He further submitted that the provisions of the Interpretation and General provisions Act, should be read with the public holidays Act which defines what is a public holiday of which it is defined as a close holidays in all Courts of law, government offices and banks and shall be legal holidays for all persons throughout Seychelles of which Sundays are also considered as public holidays.

Counsel for the Respondent submitted that since the decision of the employments Tribunal was delivered on the 10^th of August, 2021 and the Notice of Appeal was filed on the31^st of August 2021 of which the Notice of Appeal was filed 21 days after the decision was delivered. He further submitted that if we count the 4 excluded days being 3 Sundays and a public holiday the Notice of Appeal would have been lodged 17 days after the decision of the Employment Tribunal was delivered and hence the Appellant is out of time.

Counsel for the Appellant made similar submissions before the Court as regards to the law relating to the computation of time for filing the Notice of Appeal. However in addition Counsel for the Appellant relied on an amendment to the law namely the Civil Code of Seychelles Act Consequential amendment which provides that Saturdays shall also be considered as an excluded day. To this effect Counsel for the Respondent also conceded to the fact that as a result of the amendment Saturdays shall now be considered as an excluded day.

Counsel for the Appellant further submitted that the Appellant was well within the prescribed limit of 14 days for filing the Appeal.

THE LAW

Rule 6(2) of the Appeal rules made under the Courts Act provides that the Notice of Appeal shall be delivered to the Clerk of the Court within 14 days from the date of the decision Appealed against.

The above sections of the Law has the effect that an Appeal from the Employment Tribunal follows the same procedure as an Appeal in civil cases from the magistrate court to the Supreme Court and hence the Appellant has 14 days to file his Appeal in the Registry of the Supreme Court from the decision of the Employment Tribunal in default of which an Application must be filed to the Supreme Court asking for leave and as such the Court may grant such leave on any ground which Court considers sufficient.

Since day is not defined in the Employment Act then we have to the turn to Interpretation and General Provisions Act in order to assist this Court in the Computation of time in filing an Appeal.

Section 57 of the Interpretation and General Provisions Act provides the following;

a period reckoned by days from the happening of an event or the doing of any act or thing is exclusive of the day on which the event happens or the thing ;

where a period is expressed to begin or end at , on or with a specified day or to continue to or until a specified day, the period shall include that day;

where a period is expressed to begin after or to be from a specified day the period shall not include that day;

where the last day of a period is an excluded day, the period includes the next following day ( not being an excluded day; and

where an act or proceeding may be or is required to be done or taken on a certain day and that day is an excluded day, the act may be done or the proceeding taken on the next following day (not being an excluded day)

This Court takes notice that there was an amendment made to the Interpretation and General Provisions Act by (act 24 of 2021) in the Civil Code of Seychelles (Consequence of Enactment) Act, 2021. Section 4 of the said Act now defines excluded day as a Saturday, a public holiday, or a bank holiday declared under section 64 of the Financial Institution Act.

The effect of the above provisions and amendment thereon is that Saturday, Sunday and public holidays are excluded days for the purpose of computation of time for the filing an appeal so is the day of the decision of the Court or Tribunal and the last day for the filing of an Appeal should not be counted for the purpose of computation of time in filing an Appeal to the Supreme Court from the Employment Tribunal.

DETERMINATION

This Court notes that that the decision of the Employment Tribunal was delivered on the 10^th of August 2021 and the Notice of Appeal has been filed on the 31^st August 2021 which is 21 days after the decision of the Employment Tribunal. This Court has made the calculation and found that there are 7 excluded days including Saturdays, Sundays and public holiday during that period of which I am of the view that the Appellants have filed their Appeal 14 days from the said decision of the Employment Tribunal. Hence this Court finds that the Appellants were well within the prescribed time limit when they lodged their Notice of Appeal.

As a result of the above paragraph 15 of this Ruling, the preliminary objection raised by the Respondent is hereby dismissed.

Signed, dated and delivered at Ile du Port on 21^st July 2022.

____________

Esparon J

Beau Vallon Properties Limited v Bhasin (CA 11 of 2018) [2022] SCSC 174 (02 March 2022);

Franzisca Mitterer — Tue, 12 Jul 2022 06:05:34 +0000

Beau Vallon Properties Limited v Bhasin (CA 11 of 2018) [2022] SCSC 174 (02 March 2022);

Flynote

Appeals and reviews

Franzisca Mitterer Tue, 07/12/2022 - 06:05

Search summary

Appeal from the Employment Tribunal sitting as court of first instance.

Headnote and holding

The appeal is dismissed. The decision of the Tribunal is maintained.

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2022-scsc-174.pdf

Cupidon v Rose (CA 31 of 2018) [2019] SCSC 776 (16 September 2019);

Anonymous — Wed, 03 Mar 2021 12:57:34 +0000

Cupidon v Rose (CA 31 of 2018) [2019] SCSC 776 (16 September 2019);

Flynote

Civil Procedure

Appeals and reviews

Delict and Tort Law

Anonymous (not verified) Wed, 03/03/2021 - 12:57

Headnote and holding

Appeal from the Magistrate Court in its original civil jurisdiction; appeal dismissed in its entirety.

Download

2019-scsc-776.docx

GOVINDEN J

Introduction

[1] This is an appeal to this court against a judgment of the Magistrate court rendered in its civil jurisdiction. The decision dated the 9th of July 2018 is in respect of an action in delict brought by the Appellant, the then Plaintiff, against the Respondent, then the Defendant. Having heard the evidence the Learned Magistrate did not gave judgment in favour or against either of the parties, as he felt that neither of the parties had proven their cases on a balance of probabilities. He dismissed the case in its entirety.

The case before the Magistrate court

[2] The uncontested facts of the case shows that the Plaintiff was the owner of car bearing registration number S4088 and the Defendant was the owner of a garage. The Plaintiff on the 5th of March 2013, left his car at the Defendant’s garage for the latter to repair it. The Defendant had to respray the car and replaced its seats. As part consideration for the work to be done by the Defendant, the Plaintiff had deposited RS 10,000 with the latter. A Tree fell on the Defendant garage and smashed the wind screen and damaged the body of the car. The Plaintiff contended that the Defendant had to make good for the loss of his car.

On the other hand, The Defendant denies liability and claim that no date was agreed between the parties for the completion of the work on the Plaintiff’s car and that he was waiting for the Plaintiff to provide two new bumpers, which the Plaintiff had agreed needed to be replaced before the tree fell. At that time, according to the Defendant the respraying of the car and other works that had originally been agreed between the parties had been completed. The defendant makes a counter claim on this basis. This, consist of the contested facts of the case.

The original Court decision

[3] The Learned Magistrate found that the issues for his determination in the case were as follows; (1) Was the Defendant negligent in failing to complete the repair works on the Plaintiff’s car in a timely manner leading to the car being damaged by the falling tree? (2) Has the Plaintiff’s car perished as a result of the negligence of the Defendant?

On the first issue the Learned Magistrate found that the Plaintiff had failed to prove that the Defendant was negligent in failing to complete the repair works to the car He found that though there was no date agreed for the completion of the car the Plaintiff had admitted, when giving evidence, that the spraying of his car had been to his satisfaction and that only the bumpers needed repair by the time that the tree fell. The Learned Magistrate having also found that “force Majeure” having been established ruled that he is unable to conclude that the Defendant was negligent.

On the other hand, the Learned also found that the Plaintiff has failed to prove the total loss of his vehicle and that at any rate no proof of the actual value of the vehicle had been adduced before the court. As regards the claim of the SR 10,000 deposited, the Learned Magistrate view was that this is not refundable as it was used by the Defendant in carrying out the works on the Plaintiff’s car.

In respect of the Counter claim of the Defendant for work done on the Plaintiff’s car the Learned Magistrate found that there was no agreement as to price for the work to be done by the Defendant and that at any rate the Defendant has not managed to substantiate this claim through evidence. As such he dismissed this claim also.

The Appeal

[4] The Appellant being aggrieved by the judgment appeal to this court on the following grounds;

(1) That the Learned Magistrate erred in dismissing the Appellant’s claim despite overwhelming evidence to show that the Respondent was indebted to the Appellant.

(2) That the learned Magistrate erred in dismissing the Appellant’s claim over the issue of oral evidence

(3) That in all circumstances of the case the decision of the Learned Magistrate was wrong in law and in principle.

The submissions

[5] The Learned counsel for the Appellant in his oral submission relied heavily on article 1789 of the Civil Code. According to him this article provides for “almost strict liability” on the part of a workman, when an employer leaves his car for repair in the custody of a workman. And that in this case the work man, Mr Marc Rose, never tried to rebut this presumption lying on him. Accordingly, he submitted that the Learned Magistrate erred in holding that the Plaintiff had failed to establish negligent on the part of the Defendant.

The issue to be determined on appeal

[6] Looking at the grounds of appeal and the submissions of the Learned Counsel for the Appellant I find that there is only one principal issue arising for determination of this court on appeal. That is, whether the Learned Magistrate was right in dismissing the Plaint based on his consideration of the entirety of the evidence and in coming to the conclusion that there was no negligent on the part of the Defendant.

The other issue left for consideration is whether the Learned Magistrate was right in finding that the defence of “force majeure” was proven in this case.

Discussions and determination

[7] The appeal before us is inviting this court to reverse findings of fact by the trial court.

The law regarding the power of the Supreme Court in reversing a finding of fact by the original court is well settled in this jurisdiction. In the Court of Appeal case of T Searles vs W Pothin, SCA 7 /15, the court held.“ It is instructive to observe from the outset that in this appeal the Appellant is essentially asking this court to contradict or upset the findings of fact made by the court below which had the opportunity of hearing the evidence at first hand. The law on this aspect is as stated in Akbar v R SCA 5/198, where this court held; “An Appellate court does not rehear the case . It accepts findings of facts that are supported by the evidence believed by the trial court unless the trial judge’s findings are perverse”.

The decision in Akbar finds support in many other English decision and the decisions of this court. In the Privy Council case of Beacon Insurance Co. Ltd v Maharaj Bookstore Ltd [ 2015] 1 LRC 232 on an appeal based on facts held, “The rule that an appeal court would only rarely even contemplate reversing a trial judge’s finding of primary fact was traditionally and rightly explained as being because the trial judge had the benefit of assessing the witness and actually hearing and considering their evidence as it emerged, so that where a trial judge had reached a conclusion was one which there was no evidence, or which no reasonable judge could have reached, that an appellate court would interfere with it. Further grounds for appellate caution were that the trial judge had sat through the entire case and his ultimate judgment reflected that total familiarity with the evidence; the insight gained by the trial judge who had lived with the case for days, weeks or even months, could be far deeper than that of appeal court whose view of the case was more limited and narrow, often being shaped and distorted by the various orders and rulings being challenged. An appellate court should also be slow to reverse a trail judge’s evaluation of facts because the specific findings of fact, even by the most meticulous judge, were inherently an incomplete statement of the impression made upon him by the primary evidence. His expressed findings were always surrounded by imprecision as to emphasis relative weight, minor qualification and nuance of which time and language did not permit exact expression, but which could play an important part in judge’s overall evaluation. Where a judge drew inferences from his findings of primary act which had been dependent on his assessment of the credibility or reliability of witnesses who had given oral evidence, and of the weight to be attached to their evidence, an appellate court might have to be similarly cautious in its approach to his findings of such secondary facts and his evaluation of the evidence as a whole”.

[8] It is with these words of caution in mind that I approach the grounds of appeal raised in this case. Having so caution myself I found that the Learned Magistrate had drawn inferences from his findings of primary facts which had been dependent on his assessment of the credibility and reliability of the Plaintiff and the Defendant and of the weight to be attached to their evidence. As I do not have the privilege to carry out this operation sitting on appeal, I am therefore limited in my capacity to discern the issue of credibility and reliability of their evidence.

[9] I have considered the findings of the Learned Magistrate and I find no error in the Learned Magistrate assessment of fact on the issue of who was the indebted party in this case. I agree with the trier of fact decision that the Plaintiff had failed to prove that the Defendant was negligent in failing to complete the repair to the car and for the decision that he gave in coming to this determination. His decision are reasoned out and supported by facts on record. I furthermore, agree with his findings and consideration on the oral evidence led before him. I therefore dismiss the first and second grounds of appeal.

[10] On the other hand the Learned Magistrate found that there was “force majeure”, proven in this case. He found that is the tree that fell on the Plaintiff car was as a result of “force majeure” and as a result and on that basis the Defendant cannot be made also liable.

[11] This defence exist in our law by virtue of article1184 of the Civil Code of Seychelles. However, it is a defence that has to be specifically pleaded in the Statement of Defence. In this case it was not pleaded by the Defendant. Though this was the case, the Learned Magistrate found it proven. I am of the view that in so doing the Learned Magistrate erred as he acted ultra petita and went beyond the pleadings. However, in view of the fact that the Court below found that “force majeure” was proven additional to the lack of negligence on the part of the Defendant and bearing in mind my findings regarding this aspect of his decision, I find that this error does change my overall view of his appreciation of fact in his judgment.

[12] As far as the third ground of appeal is concern, it is a loaded ground of appeal, it is alleging that the decision was “wrong in law and in principle”. This ground is too vague and general and invites this appellate court to embark on a voyage of scrutinizing every aspect of the judgment, with the hope of seeing an error of law. I cannot condone such a ground. A ground of appeal has to be drafted with sufficient clarity and precision of thought so as to allow the Appellate court to gauge the alleged underlying error of the trial court without the need for it to strain itself in such a way. I therefore dismiss this ground of appeal due to its vagueness and lack of clarity.

Final determination

[13] This court, therefore, bearing all the above aspects into consideration dismiss all the grounds of appeal in this matter. I make no order as to cost.

Signed, dated and delivered at Ile du Port 17 September 2019

____________

Govinden J

GOVINDEN J

Introduction

The case before the Magistrate court

The original Court decision

The Appeal

[4] The Appellant being aggrieved by the judgment appeal to this court on the following grounds;

(1) That the Learned Magistrate erred in dismissing the Appellant’s claim despite overwhelming evidence to show that the Respondent was indebted to the Appellant.

(2) That the learned Magistrate erred in dismissing the Appellant’s claim over the issue of oral evidence

(3) That in all circumstances of the case the decision of the Learned Magistrate was wrong in law and in principle.

The submissions

The issue to be determined on appeal

The other issue left for consideration is whether the Learned Magistrate was right in finding that the defence of “force majeure” was proven in this case.

Discussions and determination

[7] The appeal before us is inviting this court to reverse findings of fact by the trial court.

Final determination

[13] This court, therefore, bearing all the above aspects into consideration dismiss all the grounds of appeal in this matter. I make no order as to cost.

Signed, dated and delivered at Ile du Port 17 September 2019

____________

Govinden J