Bistoquet v Chief Officer of the Civil Status (MC 27/2019) [2019] SCSC 1257 (6 August 2019)

SUPREME COURT OF SEYCHELLES Reportablel Not Reportable 1Redact [2019] SCSC .b':l~ MC 27/2019 Petitioner In the matter between: A (re and I b CHIEF OFFICER OF THE CIVIL STATUS (absent/ unrepresented) Respondent Neutral Citation: Before: Summary: Heard: Delivered: Chief Officer of the Civil Status (Me 27/2019) [2019] SCSC 6::f;t.. ugust 2019). Bis ..... Carolus J, Rectification of name of child - Section 100 Civil Status Act 24 June 2019 7 August 2019 ORDER The application is dismissed. RULING CAROLUSJ [1] An is the petitioner) has petitioned this Court by way of an application under section 94 of the Civil Status Act ("the Act") for an Order to amend the civil status register to change the name of her minor son A o J he application is supported by an affidavit sworn to by the petitioner and the following documents exhibited therein, namely the birth certificate of the child, a copy ofa page from his passport showing his passport details and a Court Order dated 16th November 2018, appointing the petitioner as the sole guardian of the child. [2] In her affidavit the petitioner avers the following: 2. 3. 4. J am the mother of Ar Mahe, Seychelles on Status Register No. 1 Court of Seychelles as rn at Victoria, ivil eme d J was ardian of my son. J am desirous that the name of my child B changed to A I aver that it isjust and necessaryfor the court to make an order directing the Civil Status to make the necessary change in the Civil Status Register and on my son's birth certificate to reflect the name A M [3] In the child's birth certificate registered in Civil Status Register No. s name is entered as A are entered as Fr nd his father's and mother's names d A pectively. [4] I note that in both the application in the caption thereof, and the supporting affidavit the petitioner's name is written as hereas in the child's birth certificate it is written as ounsel for the petitioner did not address or lead any evidence on this issue. 1 further note that in the Order dated 16th November 2018 appointing the petitioner as sole legal guardian of the child, the child's mother is referred to as A am therefore inclined to think that the petitioner's name has been erroneously entered in the birth certificate of the child and that the correct name of the petitioner is A [5] At the hearing counsel for the petitioner stated that he was proceeding under section 100 of the Act and not under section 94 thereof as stated in the application. Section 100 of the Act provides as follows: 100. Ajudge may, upon the written application of the Chief Officer of the Civil Status or any party, order the amendment without any fee, stamp or registration due of any act whenever suchjudge shall be satisfied that any error has been committed in any such act or in the registration thereof Nothing herein contained shall prevent any interested person from asking by action before the Supreme Court for the rectification or cancellation of any act. Underlining is mine [6] He clarified that the present application is made under the second limb of section 100 in terms of which any interested person may by action before the Supreme Court ask for the rectification or cancellation of any act of the civil status. [7] One procedural issue arises in respect of this application, namely whether proceedings under the second limb of section 100 of the Act may be initiated by way of an application as has been done in the present case. [8] Counsel for the petitioner submitted that the Chief Officer of the Civil Status, the respondent in this matter, having been served and not put in an appearance and the matter having been proceeded with ex parte, no prejudice would be caused to any party by filing an application instead of a plaint. He stated that ifthere had been any prejudice to any party then the matter should strictly have been commenced by a plaint and not an application. He submitted that in the circumstances and in the interest of justice, since there is no other party being affected by the application it would be grossly unfair and unjust to dismiss it on a technicality. [9] Proceedings under the second limb of section 100 of the Act have to be commenced by way of an "action" in the clear words of that provision. The word action is defined in section 2 of the Seychelles Code of Civil Procedure as "a civil proceeding commenced by way of plaint". It is clear therefore that any proceeding under the second limb of section 100 of the Act, should have been commenced by filing a plaint rather than an application. [10] I note in that respect that a distinction is made between proceedings under the first limb of section 100, which it is specified should be commenced by way of a "written application" and those under its second limb which must be made by way of an "action". Had the legislature intended that proceedings under the second limb could be commenced by way of an application, in my view it would not have made that distinction. Moreover I note that the first limb of section 100 deals with amendments of acts of civil status due to errors in such acts or in their registration whereas the second limb deals with the rectification and cancellation of such acts. This, in my view may be the reason for the distinction. While the first limb deals with amendments due to errors which are clear and evident and can be dealt with by way of an application supported by affidavit, the second limb is intended for more complex cases which have to be dealt with by way of plaint and require filing of a defence from an opposing party. [11] I do not agree with counsel's contention that since no other party is being prejudiced in the present application then the matter is properly commenced by an application. In my view the law is clear as to how proceedings should be commenced under the second limb of section 100 of the Act and must be complied with. Where a procedure is clearly laid out in a legal provision, failure to follow that procedure would result in the Court having no jurisdiction in the case which must be dismissed. In the present case the matter falls to be dismissed on that ground alone. Further, as I will explain in more detail below, I also do not agree that no prejudice will be caused to any other person by the grant of the present application. [12] In spite of my findings above, r also wish to deal with the merits of the application which I proceed to do below. [13] Counsel has submitted that in the present case the only matter that the Petitioner has to satisfy the Court is that she is an interested person which she has done. I do not agree for the following reasons. [14] Firstly while the first limb of section lOa specifically states that amendments may be made where there is an error in an act of the civil status or the registration thereof, the second limb speaks only of rectification. However the word rectification implies that there is some kind of irregularity which must be corrected. In the present case the petitioner merely states that she is desirous that the name of her child be changed. She does not give any valid reason for the change. Is the Court then to change the name of a child on a whim of her mother's? [15] Secondly, the petitioner who is the mother and sole guardian of the child wishes to change the child's name without the authorisation of his father. Is she as his sole guardian entitled to do so? The relevant legal provisions regarding the duties of a guardian for the purposes of determining the above issue are contained in sub-Article 1 of Article 450 of the Civil Code of Seychelles Act, the relevant part of which reads as follows: 1. The guardian shall have the care of the person a/the minor and shall represent him in all legal acts. He shall administer his property showing in this respect, reasonable care ... Article 450 [16] It would not appear that the above provisions empower a guardian to change one of the forenames and the surname of a child without the authorisation of the child's father, and certainly not without a valid reason. [17] While there is no legal obligation for a child to be given his or her father's surname when the child's birth is declared, any child who is recognised by or who is declared to be the child of, that child's father, is entitled to bear his or her father's surname. Where a child bears his father's surname, this reflects his paternity and for that reason any changes to that child's surname should therefore not be treated lightly and, in my view, should not be made without the father having an opportunity to be heard on the matter. [18] 1 also take note of section 35 of the Act, in terms of which the name of a child's father cannot be mentioned in the child's act of birth unless the father gives his consent thereto at the time of declaration of the child's birth. ]f as in the present case, the father's name is entered in the child's act of birth, and the child bears his father's surname B ecause his father consented to that, then in my view, the consent of the father should be obtained for replacing the child's surname which is the same as his father's with that of the mother's. [19] The rectification sought will not only remove the surname hich is the father's surname from the child's current name, but will also replace one of the child's forenames namely F hich is also one of his father's forenames and which is presumably why he was given that name, by the name M n my view all these changes to the name of the child have to be consented to by his father who should have been made a Defendant in this matter. [20] Further I do not subscribe to counsel for the petitioner's contention that the father is covered under section 103 of the Act which provides that an order under section 100 shall not be binding on any interested party which shall not have either moved or applied for such order or shall not have been made a party to it. This section is to safeguard persons who should have been made a party to proceedings under section 100 of the Act and who were not, but cannot be used to condone applications such as the present one. [21] In the circumstances and for the reasons given above I dismiss this application. Signed, dated and delivered at lIe du Port on 7 August 2019. ~~\v..s Carolus J 6