De La Fontaine (MA 133/2016 arising in DC 122/2009) [2017] SCSC 99 (08 February 2017);

IN THE SUPREME COURT OF SEYCHELLES
Civil Side: MA 133/2016
(arising in DC122/2009)

[2017] SCSC 99

NOEL JAMES DE LA FONTAINE
Applicant

versus

RUTH BERTA DE LA FONTAINE
Respondent

Heard:
Counsel: Karen Domingue for petitioner

Basil Hoareau for respondent
(Ex parte against respondent)
Delivered: 8 February 2017

ORDER ON MOTION

Robinson J

[1] The court has heard all evidence for Petitioner and Respondent in DC122/2009. Respondent, through counsel, filed written submissions on 28 September, 2015. The written submissions made the point that ?
"the application and cross application ought to be dismissed as the Respondent has no legal capacity to defend the application or institute any cross-application on her own but rather could have done so only through her guardian, Mrs. Mary Geers. Both acts are null by operation of the law (see article 502)".

[3] Petitioner has filed a motion for amendment of the petition. It is not clear under which provision of the Seychelles Code of Civil Procedure the motion is being made. It appears to the court that this is a matter for substitution of Respondent.
[4] The affidavit reads thus ?

2. I state that I filed a Petition under the Matrimonial Causes Act which was dated 25th January 2010 requesting, inter alia, that the Court declares that the Respondent has no shares in the matrimonial home and the contents therein.

3. At the time that I filed my Petition, the Respondent had not yet been interdicted. The Respondent was only interdicted on the 9th December 2010, thus at the time that I filed the Petition it was filed against the Respondent in her personal capacity.

4. Following a hearing of the case and no Plea in limine litis having been raised by Respondent’s counsel on this issue, the Respondent’s Counsel in his submissions raised the issue that due to the Respondent’s interdiction the person who should have been cited was the guardian of the Respondent, namely Mrs Mary Geers. In the circumstances, the Respondent’s Counsel has requested the Court to dismiss both my Petition and the Respondent’s Cross-Petition.

5. I state that although my initial Petition was filed against the correct person but in view of the requests being made by the Respondent’s Counsel at this late stage and the possibility of the Court ruling in favour of the Respondent on this matter or the possibility of the matter being taken up at an eventual appeal by the Respondent, I have been advised to move the Court to amend my Petition and all my pleadings to read in all the captions "Ruth Bertha De La fontaine, herein represented by Mrs. Mary Geers".

6. I state that although I have been advised that the Respondent may be estopped at this stage to raise this issue I do not wish to take the chance of my case being dismissed as it is a long protracted matter and it is in the interests of justice that it be disposed of.

7. I believe that no injustice will be caused if the Court grants me leave to amend my Petition as laid out in paragraph 5 above. In fact I believe that it would be in the interests of justice and all parties as it would reflect the reality of the case.

8. I pray accordingly.

…".

[5] The question raised for the determination of the court is one "de forme". Who shall represent Ruth De La Fontaine in this case?

[6] There is undisputed evidence that Ruth De La Fontaine was interdicted. The judgment ordering interdiction is dated 9 December, 2010, (exhibit P10). The interdiction had effect on 9 December, 2010. Articles 502, 509 and 512, of the Civil Code of Seychelles Act, apply to the present matter.

"Article 502
The interdiction or the appointment of a person to look after the interests of a person in need of such assistance under article 499 shall have effect as from the day of judgment. All legal acts executed subsequently by the interdicted person or the person in need of protection, as provided by article 499, shall be null by operation of law."
"Article 509
The interdicted person is assimilated to a minor, both in regard to his person and to his property; the laws relating to the guardianship of minors shall apply to the guardianship of interdicted persons."
"Article 512
The interdiction shall cease when the grounds which gave rise to it have disappeared; nevertheless, the lifting of the interdiction shall only be effective if the forms laid down for the interdiction are observed.
The interdicted person shall only be allowed to recover his rights after the judgment lifting the interdiction.".
[7] Article 509 states that the guardian shall represent the interdicted in all legal acts. Article 502 of the Civil Code of Seychelles Act makes it plain that "[a]ll legal acts executed subsequently by the interdicted person …, as provided by article 499, shall be null by operation of law" . The court has no discretion in the present matter.

[8] For this reason the court refuses the application.

Signed, dated and delivered at Ile du Port on 8 February 2017

F Robinson
Judge of the Supreme Court