Jacintha Volcere & Others v The Attorney General & Others (SCA MA 06/2024) Arising in [2023] SCA 16 of 2023 & SCA 16 of 2023 [2024] (Consolidated) (Appeal from CS 122/2021) ((3 May 2024) (2024) [2024] SCCA 17 (3 May 2024)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2024] (3 May 2024) SCA MA 06/2024 (Arising out of SCA 16/2023) & SCA 16/2023 (CONSOLIDATED) (Appeal from CS 122/2021) In the matter Between Jacintha Volcere Lina Hoareau Maureen Payet Eugen Esparon Sylvette Esparon (rep. by Mr. S Rajasundaran) And The Attorney General The Officer of the Civil Status (rep. by Mrs. K Marie) Jill Esparon (rep. by Mr. F Bonte) Applicants/Appellants Respondents Neutral Citation: Jacintha Volcere & Others v The Attorney General & Others (SCA MA 06/2024) Arising in [2023] SCA 16 of 2023 & SCA 16 of 2023 [2024] (Consolidated) (Appeal from CS 122/2021) ((3 May 2024) Before: Andre, Gunesh-Balaghee, De Silva, JJA Summary: Application to adjourn-Rule 12 of the Court of Appeal of Seychelles Rules 2023- Nullity of marriage-Article 238 of the Civil Code of Seychelles Act, 2020- Locus standi/Interested parties- Reasonable cause of action- Section 91 of the Seychelles Code of Civil Procedure (Cap 213)- Minor’s role as a witness to a marriage-Sections 27 & 2 of the Civil Status Act (Cap) 34. Heard: 17 April 2024 Delivered: 3 May 2024 ORDERS The Court makes the following Orders: (i) The Appeal is dismissed. (ii) No order is made as to costs. JUDGMENT ANDRE, JA INTRODUCTION [1] The Appellants through a Notice of Appeal filed on 23 April 2023 challenged the decision in CS 122/2021 where the court a quo dismissed their Plaint on a plea in limine litis. [2] As background, the Appellants (Plaintiffs in the lower court) approached the court a quo with a Plaint challenging the validity of a marriage between the late Gervais Dickson Geoffrey Esparon and the 3rd Respondent and seeking that the same be declared null and void. The Appellants had also prayed that the court orders the deletion of records of the marriage between the deceased and the 3rd Respondent and that the 3rd Respondent be disentitled from having any benefits arising from the said marriage. [3] The 1st and 2nd Respondents who were enjoined in the lower court as defendants, raised points of law to the effect that the Plaintiffs/Appellants were not interested parties to bring an action before the honourable court and therefore in accordance with Section 91 of the Seychelles Code of Civil Procedure (SCCP), the Plaint must be dismissed. The 1st and 2nd Respondents had also argued as a preliminary issue that the Plaint disclosed no reasonable cause of action and that the proper procedure to bring the claim was by way of an application made pursuant to Article 238 of the Civil Code of Seychelles Act 2020. Finally, the 2nd Respondent had argued that it was wrongly named as a party to the proceedings as any claim against the government of Seychelles must be brought solely in the name of the Attorney General as provided by Section 29 of the SCCP. [4] The court a quo upheld the first two points of law raised by the 1st and 2nd Respondents. Essentially, the court was of the view that the Appellants/Plaintiffs were not interested parties and that the suit was improperly brought before it. [5] Dissatisfied with this, the Appellants appeal the decision of the learned Judge on five grounds of appeal which read verbatim as follows: Ground No. 1: The learned judge erred in dismissing the Plaint by ex facie documents without providing an opportunity to the Appellants for fair hearing on the merits. Ground No. 2: The learned judge erred in approaching the issue of nullity of marriage with the limited scope of provisions of only under Article 238 of the Civil Code of Seychelles Act, thus erred that the Plaint does not fall in the purview of the Civil Code of Seychelles Act and further failed to note that the particular Article is meant for parties to the Marriage while the ‘Plaint’ was filed by the mother and siblings of the deceased Gervais Geoffrey Esparon under different ground other than Article 238 of the Civil Code of Seychelles Act and that the nullity of marriage can also be dealt with under the provisions of the Civil Status Act. Ground No. 3: The learned judge has completely overlooked the aspect of a minor being witness to the marriage in question, held on 20th November 2021 and failed to appreciate the provisions of the Civil Status Act that does not permit a minor to even get married while the marriage in question is witnessed by a minor. The legal and representative position of a minor in law, is wrongly interpreted while accepting the Minor’s role as a witness to a marriage. Ground No. 4: The learned judge despite having commented that the form and procedure do not deny justice, erred in holding that only a Petition is the proper was of pleading as against the Appellant’s Plaint while overlooked the latest decided cases of the Seychelles Court of Appeal in our jurisdiction that a Plaint does not cause any prejudice and or suffering to the other party with the nature of the Plaint or Petition as the case may be. The learned Judge ought to have held that the Plaint is the proper way seeking declaratory relief. Ground No. 5: The learned judge has erroneously concluded while dismissing the Plaint that the Appellant are not interested parties and the learned Judge’s approach on ‘interested parties’ only on the perspective of succession and inheritance and admitted the Appellants’ Plaint is in pursuit of invalidity of marriage pursuant to the death of Gervais Geoffrey Esparon under suspicious circumstances and with the involvement of a minor as Witness, the Appellants being mother and siblings of the deceased cannot be denied justice on the perspective of whether or not as interested parties. [6] The parties also submitted their heads of arguments supporting their respective positions to each ground of appeal. Each of these is given due consideration below in my analysis. [7] Before the hearing of the appeal, Learned counsel for the Appellants/Applicants filed a notice of Motion on 11 April 2024 seeking this Court to adjourn the hearing of the appeal of SCA16/23 in terms of Rule 12 of the Court of Appeal Rules 2023. MOTION TO ADJOURN HEARING OF THE APPEAL SUBMISSIONS OF THE APPELLANTS/APPLICANTS [8] The motion is supported by an affidavit which was sworn by Lina Cecil Hoareau, who is the 2nd Appellant in SCA 16/23. The grounds on which the adjournment is sought is that the outcome of an inquest into the death of Gervais Dickson Geoffrey Esparon, currently in the Magistrates’ Court, has a bearing on how this Court will determine the appeal before it. It is further averred that no prejudice will be caused to the Respondents if the matter is adjourned. SUBMISSIONS BY THE RESPONDENTS [9] The 1st and 2nd Respondents resist the application by stating that the inquest is to find the cause and circumstances of the death of a person, and that any finding on this is not connected to the present proceedings. Instead, the present proceedings are about disputing the grounds which led to the dismissal of the suit in the court a quo. [10] The 3rd Respondent has also resisted the application on similar arguments raised by the 1st and 2nd Respondents. Further to this, the 3rd Respondent submits that the findings of the Magistrate on the inquiry into the death of a person will constitute new evidence which by law, cannot be adduced before the Court of Appeal. ANALYSIS AND DETERMINATION OF THE MOTION [11] In my view, it cannot be said that there is a nexus between the merits of SCA 16/23 and the inquest referred to by the Applicants. This is because SCA 16/23 will determine the correctness of the decision in CS 122/2021. The impugned Ruling dismissed the suit of the Applicants by upholding two points of law to the effect that the Applicants are not interested parties to bring a suit on nullifying the marriage, and that the suit itself did not disclose a reasonable cause of action. It is on these two narrow points that this Court is seized. Therefore, any pronouncement on whether the death of Gervais Dickson Geoffrey Esparon was unnatural or otherwise, does not affect the crux of the appeal in SCA 16/23. The outcome of the inquest may support the substance of the Applicants challenge to the nullity of the marriage, but not any of the substantive aspects of the points of law which this Court will determine in SCA 16/23. DECISION [12] It follows in consideration of the above analysis and findings, that the Motion is dismissed for the reasons given above. I will proceed to determine the merits of the appeal below. ANALYSIS OF THE GROUNDS OF APPEAL GROUND 1 [13] Ground 1 challenges the procedure adopted by the learned judge in so far as hearing the point of law raised ex facie the pleadings without hearing the merits of the case. Recalling Section 90 of the SCCP and this court’s observations in Kasi Trading v United Africa Feeder Line (UAFL) & Ors (SCA 30 of 2021) [2023] SCCA 18 (26 April 2023) at paragraph [40], a party can raise a point of law through pleadings and the same can either be disposed of before trial or at the trial. Further, this court at paragraph [44] highlighted the principle that a court cannot decide ex facie the pleadings if it seeks to rely on a document that has not been admitted into evidence and therefore, must dispose of the point of law at trial. [14] Having gone through the impugned Ruling, the learned Judge adopted the procedure of deciding the point of law before the trial and thus, in accordance with Section 90 of the SCCP. The learned judge also made a decision based solely on pleadings without relying on a third document that was not yet admitted into evidence. With this, it cannot be said that there was anything incorrect in the procedure adopted by the court a quo. [15] It follows therefore that ground 1 has no merits. GROUND 2 [16] Ground 2 challenges the reliance on Article 238 of the Civil Code in respect of nullity of marriage. Learned counsel for the Appellants submitted that it was incorrect for the learned Judge to have approached the issue of nullity of a marriage through the lenses of Article 238 of the Civil Code when the same issue can also be dealt with under the provisions of the Civil Status Act. Further, is was submitted that the Appellants filed for nullity under a different ground that is other than one provided in Article 238 of the Civil Code. [17] In my view, both positions are untenable because the provisions of the law relating to marriage were repealed from the Civil Status Act and are now contained in the Civil Code Act of 2020. Further, it is only those grounds that are listed in Article 238 of the Civil Code that can be relied on for a successful application for seeking the nullity of a marriage. Therefore, the learned Judge was correct in his reliance on Article 238 of the Civil Code regarding the question of nullity of a marriage as this is the only law under which a marriage can be annulled. [18] The fact that the Appellants were challenging the appropriateness of the witness to the marriage1 goes to the heart of whether the marriage was celebrated in accordance with the 1 Paragraph 12 of the Plaint on page 21 of the Court of Appeal bundle. law and falls squarely under Article 238 (1) (g) of the Civil Code. Similarly, the fact that the Appellants had raised the issue of fraud in their Plaint2 goes to the heart of whether the party to the marriage gave valid consent that was not marred with fraud and therefore falls under Article 238 (1) (f) of the Civil Code. [19] It follows therefore that ground 2 has no merits. GROUND 3 [20] The essence of Ground 3 is that a minor cannot witness a marriage and therefore the learned Judge erred in accepting that the marriage is valid even though it was witnessed by a minor. It is the Appellants’ contention that since a minor cannot get married, the same minor cannot witness a marriage. The Respondents for their part contend that the law is silent as to who can witness a marriage. The learned trial Judge accepted the latter argument and stated at paragraph [41] of the impugned judgment that: [41] …. Perusing the Civil Code, there is no requirement set down for one to be qualified as a witness to a marriage. Since there is no specific legal requirement for a witness to be over the age of 18 years, it is doubtful that the legislators intended that there must be a qualifying age to witness a marriage. [21] The learned trial Judge went further to state at paragraph [42] that: [42] While there is no law around the age of the witnesses it makes sense for the officer administering the marriage to ask that a witness is over 18 but may accept someone younger whom the administrator is satisfied understands the meaning of marriage. This is the practice in most jurisdictions where the law does not provide for the age qualification of a witness to a marriage. Hence it is concluded that for all instance and purposes, the marriage was conducted in accordance with the provisions of the Civil Code. Neither the age of the witness not the death of a party to the marriage a couple of days 2 Paragraph 11 of the Plaint on page 21 of the Court of Appeal bundle. later after the marriage are legal grounds to challenge the validity of the marriage and to seek an order of nullity of the marriage. [22] As earlier highlighted, challenging the witness to a marriage goes to the heart of how a marriage is celebrated. In his ratio decidendi, the learned judge notes that since there is no legal requirement for the witness to be at least 18 years old in order to witness a marriage and therefore the intention of the legislature was not to have a qualifying age to witness a marriage. Further, the learned judge took note of how other jurisdictions approach the matter. [23] In the present proceedings, the Appellants submit that the general legal position of the law is that minors are always to be represented by their parents or guardians as the law does not recognise the minors on their own. It is the contention of the Appellants that a minor is not a legal person. Further, it is the submission of the Appellants that since a minor cannot get married, it stands to reason that a minor cannot witness a marriage. The Appellants during the hearing of the appeal, referred the court to the provisions of section 27 of the Civil Status Act which was submitted provides for “persons appearing as witnesses to any act …must not be under eighteen years of age; the witness may be selected by the parties, and relatives may be so selected.” (page 3 0f 13 of the proceedings of the 17 April 2024 at 2:30 pm). [24] The 1st and 2nd Respondents maintain that the Civil Code does not provide any specific age for one to qualify as a witness of a marriage and this is common practice in other jurisdictions. The 1st and 2nd Respondents referred this Court to the practice in the Republic of Malawi where the law is also silent on the age of witnesses to a marriage. [25] We observe that other jurisdictions take the approach of setting an age limit on those who can witness a marriage. In Mauritius, Section 8 (4) of the Civil Status Act (Act No. 23 of 1981) as amended provides that only those who are in the age of majority can witness a marriage. Other jurisdictions do not necessarily do so. In the United Kingdom, Section 22 of the Marriage Act 1949 is silent on the age of a witness. It is up to the marriage officer to accept a child witness upon reasonable inquiries that the minor understands the proceedings thereafter. [26] It may be misleading however, to state that the law of Seychelles is silent on the question of the age of a witness to a marriage. We draw attention to Section 27 of the Civil Status Act as rightly submitted by learned counsel for the Appellants, which provides: Persons appearing as witnesses to any act must not be under eighteen years of age; the witnesses may be selected by the parties, and relatives may be so selected. (emphasis added) [27] Section 27 sets out three principles that are as follows: (i) witnesses to any act must be their age of majority; (ii) witnesses may be selected by parties to the said act; and (iii) relatives qualify to be witnesses. Our attention is on the first principle, given that this goes to the core of the present appeal. The words ‘any act’ are of particular importance. Notably, Section 2 of the Civil Status Act defines ‘act’ as ‘an act of the civil status.’ Civil status of a person touches and concerns aspects of their birth, their deaths and in some instances, marriage. Since marriage is a civil status issue, contracting aa marriage is an ‘act’ as defined by Section 2 of the Civil Status Act. Therefore, Section 27 of the Civil Status Act is relevant to marriages and dictates that a witness must be over the age of 18. [28] Given that the age limit to witness a marriage is 18 per Section 27 of the Civil Status Act, the Appellants had a cause of action against the Respondents in so far as they challenged that the marriage between the deceased and the 3rd Respondent was not celebrated in accordance with the law. To have dismissed their case on the basis that there was no reasonable cause of action was erroneous. [29] It follows therefore that ground 3 succeeds. GROUND 4 [30] Under ground 4, the Appellants challenge the learned trial Judge’s finding on the form of the suit by the Appellants when they sought an order for nullity. The Appellants approached the court a quo by way of Plaint. The Respondents raised this as a point of law to the effect that the suit was improperly brought. In his decision on this point, the learned trial Judge stated at paragraphs [45] to [46] that: [45] On the issue of whether a case for nullity of marriage can be made by plaint, this Court observed that there is already settled law for which the case of Choppy and Ors v Choppy and Anor (1956-1962) No. 24 is most prominent which emphasised that such suit must be by way of petition. [46] Lastly, the Court takes great care to ensure that justice is done to the parties and must as much as practicable not let procedures and form deny the litigants justice. However, the Court must also ensure that pleadings are adequately and clearly drawn up and proceedings are effectively managed so as to not waste the litigant’s resources on some unattainable principles and objectives. [31] In the present proceedings, the Appellants challenge the above finding of the learned trial judge. It is to be noted that the two points of law that were upheld by the learned trial judge as he laid it out in paragraph [48] of the impugned judgement were that the Appellants were not interested parties and that there was no reasonable cause of action against the Respondents. The issue of form of the suit was never a part of the ratio decidendi of the trial Court. However, the question of form was mentioned in passing by the 1st and 2nd Respondents only in reference to what the law says about setting out the grounds upon which a court can determine the question of nullity of marriage. We reproduce in verbatim the said plea in limine by the 1st and 2nd Respondents as set out in the defence to the action: The First and Second Defendants further submit that the plaint should be dismissed as against them on the basis that it discloses no reassemble cause of action. Where a plaintiff seeks to annul a marriage, this must be brought by way of application under Article 238 of the Civil Code of Seychelles Act 2020 setting out the grounds upon which the Court should declare the marriage a nullity. In this case, ot only have the Plaintiff failed to plead any specific ground under article 238 (1) of the Civil Code as to why they say the marriage should be declared a nullity, their application is, in any event, entirely misconceived for the reasons set out in this Defence. The Plaintiffs’ failure to advance any proper grounds upon which the application should be granted is demonstrated by the fact that the Plaint seemingly alleges delict on part of the Second Defendant (see, in particular paragraph 13 of the Plaint). [32] My understanding of the above point of law is that the 1st and 2nd Respondents contended that there was no reasonable cause of action in the suit against them by the Appellant. Therefore, findings on that plea in limine ought to have been limited to that aspect only, i.e. no reasonable cause of action. As we have often stated, the Court is bound by the pleadings of the parties and a decision must limit itself to those issues set out in pleadings. Similarly, counsel are enjoined to properly draft pleadings, in a clear and concise manner, and the subsequent written submissions must be limited to those parameters set out in the pleadings. [33] However, since the findings of the lower court were not limited to the question of reasonable cause of action, and we are now seized with the matter of form of an application on nullity, we will have to address it for the purposes of providing clarity. [34] The Appellants submitted that their suit sought a declaratory relief, and since they were not parties to the marriage, their suit could only be by way of Plaint instead of a Petition. They further submitted that this Court in Quilindo & 5 Ors v Moncherry & anor SCA 29/2009 has already determined that there is no prejudice suffered by another party if proceedings are initiated by one form instead of another. [35] The Respondents for their part submit that the Appellants did not seek a declaratory relief but instead, sought orders to nullify the marriage between the deceased and 3rd Respondent; to delete the entry of marriage in the records; to disentitle the 3rd Respondent and any other orders the court deemed fit. As such, the Appellants required for the trial court to do more than just define the rights of parties. It was further submitted that the proper procedure must be followed especially when the said procedure has already been established either through law or judicial precedence. The 1st and 2nd Respondents submitted that the case of Choppy & Ors v Choppy & Anor (1956-1962) No. 24 which was relied on by the learned judge shows that a case can be dismissed on the basis on improper pleadings and such decision would not deny justice. [36] The authorities relied on by both parties are useful. In Quilindo & Ors v Moncherry & Ors (SCA 29 of 2009) [2012] SCCA 39 (6 December 2012), one of the grounds of appeal was that the claim was wrongly suited. In dismissing the ground of appeal, the Court took note of the gaps in the law which meant that there was no clear cut approach in instituting proceedings in an action for en recherche de paternite naturelle. With this, the Court held that it would not deny a party’s right to be heard because the form in which the action was to be brought was not clear. [37] In Choppy & Ors v Choppy & Anor (1956-1962) No. 24, the siblings of the deceased sought for an order of nullity in respect of the marriage the deceased had entered into. They, much like the Appellants in this case, brought their suit by way of Plaint. The Court held that such suits must be brought by way of Petition as the Matrimonial Causes Rules set out. However, despite making a finding on this, the Court still proceeded to address the merits of the case and determined that the siblings had no standing to sue for nullity. [38] While the Court in Choppy made a finding that the form of the suit was not in accordance with the Matrimonial Causes Rules, it did not dismiss the appeal on that account. Instead, it drew more attention on the standing of the parties and dismissed the case on that basis. There was never a clear pronouncement on whether the form makes the case fatal or not. The Court in Quilindo on the other hand, sets out two important considerations. First, it is whether the form was not clear from the onset, and where it is not clear, a court cannot deny a party’s right to be heard for opting for one form instead of the other. This requires a party to show the court whether the form is not clear and based on this, a court would have to make a determination thereon before dismissing the action. If the form is not clear, the certainly a court cannot dismiss the action and this brings us to the second consideration, which is whether the form taken causes any prejudice to the other party. It is, we would emphasize, for the party claiming prejudice to show to a court the prejudice. [39] The Appellants argue that the Petition is only to be brought by those who were themselves a party to the marriage, while a Plaint could be relied on by third parties with standing to bring an action for nullity. The Respondents for their part, have not stated what they consider to be the correct position on form under the law, but have directed this Court to the case of Choppy stating that the said jurisprudence held that a matter can be dismissed on the basis on improper pleadings and this would not deny justice to the parties. Suffice it to state, that this is not what Choppy provides as we have earlier pointed out. [40] Article 238 of the Civil Code, which is the law on nullity of marriage, refers to an ‘application’. Rule 3 (1) of the Matrimonial Causes Rules refers to a ‘Petition’ as the form to bring a matrimonial matter before the Court. The two are not necessarily the same and the one referred to in the parent Act, i.e. an ‘application’ will take precedence over the subsidiary legislation. [41] On the understanding that the correct form is by way of application, then a Plaint is the incorrect form. However, I am minded to recall the jurisprudence of Choppy where even when the Court made a similar finding to ours on the procedure to be adopted, they still proceeded to determine the merits of the case. Therefore, a court can still hear the merits of the case in an action of nullity of marriage even when the form is, admittedly, wrong. This is in line with recognising that substantive justice is far more important that procedural justice, and parties must be afforded the opportunity to present their cases without unnecessarily hindering them by procedural shackles. [42] With the above, ground 4 succeeds. GROUND 5 [43] Under ground 5, the Appellants challenge the learned Judge’s interpretation of the words ‘interested parties’. In the impugned Ruling, the learned Judge relied on the Plaint itself by stating at paragraph [35] that the Appellants are linking the succession to the estate of the deceased as a ground establishing their interest in the validity of the marriage. The learned trial judge further held that if the Appellants were to be appointed executors of the estate, then they would have sufficient interest in the succession. In essence, the learned trial judge linked the question of the Appellants being interested parties to an action of nullity with the question of succession, on which the Plaint is based. [44] The Appellants submitted that the Civil Code of Seychelles does not prohibit or bar individuals other than parties to a marriage from approaching the court for a relief in the form of an order of nullity of marriage. It is submitted that it is that relief which would then determine the issue of succession in the event that nullity is granted. The 1st and 2nd Respondents for their part argue that for one to bring a matter before the court, he ought to be an interested party. They further submit that where an action is filed to nullify a marriage, the law is quite clear as to who can be considered an interested party. Despite stating this, the 1st and 2nd Respondents have not assisted this Court regarding the law on which they rely. [45] What Article 238 (1) provides is that an application can be made for an order of nullity. It does not, however, state by whom the application may be entered. Instead, the provision lists the grounds for nullity from paragraphs (a) to (k). Article 238 (2) then places some conditions needed for the Court to grant an order of nullity that has been sought on specific grounds. [46] On a closer reading of the Plaint, which we have accepted as a valid procedure of the suit, the Appellants approached the Court laying out two grounds which we earlier stated are that the marriage was not celebrated in accordance with the Civil Code by virtue of the witness being under age and that there was likely fraud which marred whatever consent to have been purported to be given by the deceased. This would, therefore, be an action of nullity on the grounds provided by Articles 238 (1) (f) and (g) of the Civil Code. [47] The question is who has standing in such actions for nullity of a marriage other than the parties to a marriage? Article 240 of the Civil Code provides the following: If one or both spouses have died, without discovering the nullity of their marriage, proceedings may be initiated at the instance of the Attorney-General or of any person interested in having the marriage declared valid. (emphasis added) [48] With the above provision in mind, proceedings can be initiated by the Attorney-General or any person having interest in having the marriage declared valid. To us, any person can institute proceedings on nullity provided that they have an interest in having the marriage declared valid. The Appellants cannot be said to have any standing as they are parties who have the opposite interest, which is to declare the marriage invalid. 14