Simara & Ors v Bonne & Ano (CS 42/2018) [2018] SCSC 8205 (5 July 2018)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: CS 42/2018 r2018J SCSC ::r50 FRANCIS SIMARA Ist Plaintiff DAN JEAN-PAUL SIMARA 2nd Plaintiff RON MERVIN AUBREY SIMARA 3rd Plaintiff LINDY SAMANTHA JEAN 4th Plaintiff Versus PHILIPPE BONNE 1st Defendant ANTOINE BONNE 2nd Defendant Counsel: Mr. A. Derjacques for Petitioner Unrepresented for Respondent Delivered: 6th July, 2018 JUDGMENT _._--_._-------------- Carolus J [I] The Plaintiffs have filed a Plaint on 27th March, 2018, in which they aver that they are the illegitimate children of the late Mr. Gilbert Bonne and that he has not acknowledged them as his children. They are therefore seeking an Order of this Court declaring them as the children of the said Gilbert Bonne. [2] The Defendants who are the brothers of the late Gilbert Bonne did not contest the claim and in fact admitted that the Plaintiffs were indeed his children. [3] I find it appropriate at this stage to deal with the issue of prescription without considering the merits of the case. [4] Proof of paternal descent of illegitimate children is dealt with by Article 340 of the Civil Code of Seychelles Act. Prescription of an action f led under that Article is provided for in alinea 3 thereof, which reads as follows: "3. An action under this Article may be brought- (a) by the child's mother, even if she is under age, or by his guardian, at any time during the child's minority; or (b) if action has not been brought under sub-paragraph (a), by the child within 5 years of his coming of age or within I year of the death of the alleged father whichever is the later." [5] In terms of Article 340 alinea 3(b), the present action should have been brought within 5 years of the Plaintiffs' coming of age or within I year of the death ofMr. Gilbert Bonne, whichever is the latest. [6] The 15tPlaintiff was born on II thJune 1980, the 2nd Plaintiff on 31st March, 1988, the 3rd Plaintiff on 27th January, 1984 and the 4thPlaintiff on 29thDecember, 1987. The last born of them is Dan Jean-Paul Simara, the 2nd Plaintiff, who was born on 31st March, 1988. He turned 18 on 3]St March, 2006 and. 5 years of his com ing of age falls on 3 pt March 2011. [7] Mr. Gilbert Bonne died on 18thJuly, 2016 and one year after his death falls on 18thJuly 2017. The Plaint in the present proceedings should therefore have been filed on or before that date. [8] As stated above the Plaint was filed on 27th March 2018, a little over eight months after the time limit given for filing the Plaint under Article 340 alinea 3(b), that is 18th July 2017. [9] Mr. Oerjacques has submitted that the period of prescription laid down in Article 340 alinea 3(b), was interrupted by the filing of an Application by the 1st Plaintiff Francis Simara to be appointed as executor to the estate of Gilbert Bonne on 22nd September, 2016, a little over two months after the death of Gilbert Bonne. These proceedings were postponed pending filing of an action to have the Plaintiffs declared as his children. [10] Mr. Oerjacques also submitted that prescription is interrupted by a legal act which has been held countless times by the Courts to include legal proceedings pertinent. He stated that the proceedings for the appointment of an executor to the estate of GIbert Bonne is pertinent to the present proceedings and highly relevant and that they constitute a legal act which was done well within the one year period prescribed for filing of an action for the Plaintiffs to be declared as the children of Mr. Gilbert Bonne. He submitted that in the circumstances legal interruption had occurred and prescription does not stop the Order sought from being granted. [II] I fail to see how the filing of the application for the appointment of the pi Plaintiff as executor to the estate of Gilbert Bonne interrupts the legal prescription of the present proceedings provided for under Article 340. The only connection that the application for appointment of executor has to the present action is that the present action was filed after the Court brought to Counsel's attention in the aforementioned proceedings for the appointment of the 151 Plaintiff as executor, that the l " Plaintiff did not have any lawful interest in making the application as neither he nor his siblings (the 2nd, 3rd and 4th Plaintiffs) had been acknowledged by Mr. Gilbert Bonne as his children. The present action was thereafter filed so that the Plaintiffs could be declared as the children of Mr. Gilbert Bonne and consequently have the necessary standing to bring the application for the pt Plaintiff to be appointed as executor of the estate of Mr. Gilbert Bonne. The present action should in fact have been filed before the application for the appointment of the l" Plaintiff as executor and it is only once the Plaintiffs were declared as the children of Mr. Bonne that the said Application should have been filed. In view of the foregoing I find that the filing of such Application cannot be considered as pertinent to the present proceedings for the purposes of interrupting the prescription under Article 340 as submitted by Mr. Derjacques. [12] I also note that at the time that the Court brought to Counsel's attention that the Plaintiffs should have been declared as the children of Mr. Gilbert Bonne in order for the )SI Plaintiff to have the necessary standing to make the application to be appointed as executor, the time limit for filing of an action under Article 340 had not yet expired and there was ample time to file such an action before the expiry of the time limit, which Counsel failed to do. [13] The Application is therefore dismissed. Signed, dated and delivered at lie du Port on 6th July, 2018. ~O-. J-.(j) t V' s . E. Carolus Judge of the Supreme Court 4