The Registrar General v Van-lewin
| Jurisdiction | Guyana |
| Judge | Crane, C.,Massiah, J.A. |
| Judgment Date | 13 May 1983 |
| Neutral Citation | GY 1983 CA 7 |
| Docket Number | No. 48 of 1981 |
| Court | Court of Appeal (Guyana) |
| Date | 13 May 1983 |
Court of Appeal
Crane, C., Gonsalves-Sabola, J.A.; Massiah, J.A.
No. 48 of 1981
S. Y. Mohamed, Deputy Solicitor General (Ag), Miss Sakita Nauth, State Counsel with him, for the appellant.
R. E. O. Moriah for the respondent.
Jurisdiction - Magistrate's court — Rectification of Birth Register — Appeal against decision of trial judge ordering the Registrar General to make the necessary corrections on the respondent's son registration in the Register of Births — Registrar General should have moved for a writ of certiorari to quash the order of the magistrate instead of blatantly disobeying the Court's order — Whether the order of the magistrate was a nullity — Magistrate had no jurisdiction to order the Registrar General to make the correction as his jurisdiction was only limited to making orders directing “the registrar” to correct error found to have been committed — Order of the magistrate was bad at law — Appeal allowed.
What is revealed in this appeal is truly astounding. Statute law anted legislation have escaped attention at both magisterial and judicial levels. This is a serious matter because, in an application of the kind under review, the status of persons, their identity and devolution of their property can easily be adversely affected by the neglect of those whose duty it is to take cognisance of the law.
In the Georgetown Magistrate's Court Francina Van-Lewin made an application dated March 17 1979, for an order on the Registrar General of Births and Deaths to make three corrections - one an omission, and two errors of commission in the Resister of Births and Deaths. These were:
“(i) In column 3 no name was registered whereas name SAMUEL CHRISTOPHER should have been registered.
(ii) In column 5 the name of WILLIAM VAN LEWIN was registered as the name of the child's father, whereas no name should have been registered, as the child was born out of wedlock and his reputed father, WILLIAM COBRAL, did not register the birth, neither did he sign the Register as the child's father.
(iii) In column 6 the name and surname of the mother is stated as Francine Van Lewin, whereas the said name and surname should have been Francina Van-Lewin.”
I will observe this application does not precisely follow the form set out as prescribed by rules 15 and 16 of the Summary Jurisdiction (Civil Procedure) Rules, Cap. 3:05, which, insofar as they relevant, provide as follows:
“15. The statement of the circumstances of the case to the magistrate contemplated by sections 34 and 35 of the Registration of Births and Deaths Act, of the giving of information to the magistrate under section 43 thereof shall be made in accordance with one or other of Forms 29 and 30 for a written authority to procure the certificate according to Form 3 of the Act, or for an order directing the Registrar to correct an error of a birth or death in a register.
16. An application referred to in the last preceding rule shall set out the names, addresses and occupations of every material party and the full facts and circumstances of the case. Where the application is made under sections 34 and 35 aforesaid, the statement of the circumstances shall be certified by affidavit and the magistrate shall grant his written authority without further hearing. Where the application is to correct any erroneous entry in the register under section 43 of the said Act, the proceedings shall be heard and determined upon the viva voce evidence of the persons directed to be examined by the said Act.”
(Emphasis mine.)
The applicant, Francina Van-Lewin, has made an omission of grave in consequence in her application. Whether she has done so intentionally or unintentionally I am unable to say, but one thing is certain, and that is, her omission has undoubtedly led into error both the magistrate to whom the application was made and two judges of the High Court of the Supreme Court of Judicature. They have been misled into making orders they ought never to have made and would never, I believe, have made had they employed their own industry to ensure that all parties directly affected by such orders were examined before the court. As her application shows, paragraph 3 of Form 30 referred to in rule 15 above, has been completely disregarded.
Francina Van-Lewin is required by paragraph 3 of form 30 of the Summary Jurisdiction (Civil Procedure) Rules, Cap. 3:05, when making her application, to set out for the information of the magistrate “the names of the party responsible for the said error and of any ether person whom the applicant proposes to examine pursuant to the said Act”, so they may be put on notice as persons affected.
We were however reliably informed from the Bar, that the Registrar General has been complaining of the frequency of, such applications and has been refusing to comply with them. Clearly then, the lesson to be learnt by magistrates as a guide far the future, is that they ought to be watchful of such applications. In my view, it is not intended by rule 16, above that such applications are to be conducted ex parte in chambers when, as we shall presently see, s. 43(3) of Cap. 44s01 contains a “special provision as to notice”. [See Part XII, r. 1(1) of the Summary Jurisdiction (Civil Procedure) Rules, Cap. 3:05.] I myself have always understood that whenever there is a direction by any section or rule of law that witnesses are to be examined viva voce and on oath, such examination may better be conducted in open court where the witness-box and all other facilities for a public examination are to be found. “Open court is what anyone would take to be a court, with the usual accompaniment of the jury-box, the witness-ox, the judge's seat and seats for solicitors and counsel and others …” [See per the Chief Justice in Kenyon v. Eastwood, (1888) 57 L.J.Q.B. 455, at p. 456.]
I am fully aware what I have said above represents a break with past practice in the Magistrate's Court. For very many years magistrates have been in the habit of conducting these applications as if ex parte in chambers, but this must cease forthwith. From my understanding of the law the procedure for making them must be strictly adhered to because it is only right that applications involving the status of persons and their proprietary interests should be open to public view when viva voce testimony is to be received an oath from every party affected who, by law, must be served with notice of the application.
Section 43(1)-(5) of the Registration of Births and Deaths Act, Cap. 44:01, insofar as is relevant, provides as follows:
“43. (1)(a) The Registrar General may of his own motion correct any minor clerical error in a register, if satisfied that the error in question is genuine.
(b) The Minister may by order specify the errors or classes of error which shall be deemed to be minor clerical errors for the purposes of this subsection.
(2) Subject to subsection (1), if any error is discovered to have been committed in the entry of a birth or death in a register, the person discovering the error shall forthwith give information thereof to the magistrate of the district.
(3) The magistrate thereupon, or upon otherwise coming to the knowledge of the error, shall summon before him the person who made, and anyone concerned in making, the erroneous entry, or having any knowledge concerning it, and also anyone interested in the effect of it, and shall examine those persons upon oath; and if the magistrate is satisfied that any error has been committed in the entry, he shall, by authority under his hand, direct the registrar to correct the error.
(4) The registrar shall thereupon correct the error according to the truth of the case, by entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the day of the month and year when the correction is made; and the marginal entry shall be signed by the person applying for the correction.
(5) The registrar shall thereupon make the like alteration in the certified copy of the register book to be made by him as hereinafter provided:
Provided that, if the certified copy and the register book from which it was made have been already sent to the general register office, the registrar shall make and send forthwith to the general register office a memorandum of the error and of the correction to be made.”
(Emphasis mine.)
But the applicant has complied with neither paragraph 3, Form 30, above, nor effectively with s. 43(2) so that the magistrate could make a competent adjudication under s. 43(3) of Cap. 44:41. Column 8 of the certified extract of the certificate from the Register of Births in Division No. 8 shows it was Mr. C. Plummer, the Administrator of the Georgetown Hospital, who gave information to the registrar of the fact of birth of a child on August 4, 1973. Therefore his name ought to have been listed for examination along with any other person, if any, who had supplied him the information for the entry. Again, the second of the applicant's requests being to have the name of William Van-Lewin in column 5 deleted as made in error and the space left blank was particularly important, because he was obviously a person like the Registrar General, who would be interested in terms of s. 43(3) in the effect of the alleged erroneous entry; but unfortunately the names of all these interested parties were not set out in the application as required by paragraph 3 abovementioned. I think it was virtually impossible for the magistrate to have made a competent correction of the type of errors as alleged, unless he had examined these parties on oath after service of the application. The...
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