Franchette & Ors v De Commarmond & Ors (CS 85/2013) [2017] SCSC 958 (8 November 2017)

IN THE SUPREME COURT OF SEYCHELLES Civil Side: CS 85/2013 [20171 SCSC log0 ROSE-MARY FRANCHETTE & ORS Plaintiff versus SUZIE DE COMMARMOND BORN SOUBANNA & OR Defendant Heard: Counsel: Mr. Ferley for plaintiff Mr. Gabriel for defendant Delivered: 9th of November 2017 JUDGMENT Nunkoo J [1] This is a plaint whereby the plaintiffs namely Rose Mary Melinda Fanchette, Andre Stanley Georgie Fanchette, Mary Anne Jeanine Fanchette are seeking for a declaration to establish their paternity and to claim from the estate of the late Elysee Soubana. They are praying the court to make orders declaring them that they are the children of late Elysee Soobana and also an order directing the Chief Officer of Civil Status to amend the Register of birth and to give effect to this declaration. [2] It is also in the plaint that the plaintiffs mother used to live and cohabited with the plaintiffs' father and lived together as a family until the Plaintiffs' father passed away. [3] They further aver that the deceased treated them as their as their children and also provided for their maintenance and education and that they have been recognized as the children of the deceased. [4] Evidence was adduced on behalf of the plaintiff, but with I need not deal as the legal point will resolve the issue. [5] The defendants have denied that the plaintiffs are the children of late Elysee Soubana and have further raised objection as plaintiffs have no locus and have asked that the plaint be dismissed. [6] I will deal with the objections. It is trite law that where a time limit is prescribed for an action to be entered that time limit must be respected. Failure to do so is fatal in most cases unless good cause is shown, in some cases as to the delay that also applies in limited cases. [7] Learned Counsel for the Respondents has referred to the case Pierre V McQueen, where there was a delay of one day in a similar petition and the petition was set aside. [8] The petition in this case dated 15 October 2013 was filled at the Registry of the Supreme Court on 18 October 2013, which amounts to one year one day the date running from 18 October 2012. [9] Learned Counsel for plaintiffs has rightly referred to Article 340 (3) b which provides that such an action must be brought within one year of the death of the father. He has also referred to the Interpretation and General Clauses Act as to the meaning of Year. [10] However Learned Counsel for the plaintiffs is urging the court to use its equitable jurisdiction as per Section 6 of the Courts Act and to exercise its discretion in the interests of justice. The court very regrettably has to say that equity cannot be invoked where there are clear legal rules to be followed by a party who wants to obtain a redress or a remedy under the Code. [I 1] The plaint is therefore dismissed. No order as to costs. Signed, dated and delivered at Ile du Port on 9th of November 2017. S Nunkoo Judge of the Supreme Court 3