Gabriel Octave v Choisy and Another (Civil Side No. 31 of 2011) [2011] SCSC 61 (18 September 2011);

THE REPUBLIC OF SEYCHELLES

 

IN THE SUPREME COURT OF SEYCHELLES HOLDEN AT VICTORIA

 

Civil Side No. 31 of 2011

 

Gabriel Octave========================================Plaintiff

 

Versus

 

Francois Choisy=================================Respondent No.1

Danny Mathiot==================================Respondent No.2

 

 

John Renaud for the Applicant

 

Frank Elizabeth for the Respondents

 

 

 

RULING

 

 

Egonda-Ntende, CJ

 

 

  1. The applicant is moving this court for a writ of habere facias possessionam to compel the respondents to vacate or give up possession of a dwelling house on Parcel No. S 2302, Cascade, Mahe. The affidavit in support of the application sets out the case for the applicant. I will set out the essential parts thereof.

 

1. That this application is made in collaboration with my brother Mr Donald Octave, of Cascade, Mahe, Seychelles. 2. That I am the heir of the late Auguste Octave and the late Charlotte Octave born Louis Marie. 3. That the late Auguste Octave died intestate in Seychelles on the 14th day of January 1985. 4. That the late Charlotte Octave born Louis Marie died intestate in Seychelles on the 27th June 1982. 5. That following the deaths of both Auguste Octave and Charlotte Octave born Louis Marie a parcel of land surveyed as Parcel No. S2302 by virtue of the laws of succession was passed onto their heirs. 6. That in 1976 with the permission of my father Mr Auguste Octave, I constructed a one bedroom house on the land surveyed as Parcel No. S2302 for my family that is parents and brother the late Andre Octave to live in. 7. That the said dwelling house was occupied by our brother the late Andre Octave for several years until his death on the 10th August 2010. 8. That following his death my brother the late Donald Octave and I, intended renovate the said house but both respondents moved into the property without my consent. 9. That the respondents have now changed the locks on the door of the house and refuse to allow us access to what in law is rightfully my property. 10. That the respondents when confronted by our family have been abusive, obnoxious and unreasonable in their behaviour. 11. That despite repeated requests for the respondents to leave quit and the one bedroom dwelling house found on Parcel No. S2302 they refuse to do so voluntarily.’

 

  1. In an affidavit in reply Francois Choisy, respondent no.1, puts the applicant to strict proof with regard to allegations of fact while contending that the applicant’s failure to attach any evidentiary documents in respect of proof of death, permission to build, plan of S2302 or proof of construction renders this action liable to fail for failing to prove ownership of the land and or house in question on a balance of probabilities.

 

  1. The first respondent further on states in her affidavit,

 

13. I aver that the applicant is not the owner of the said property and has no locus standi to bring this action in law. I further aver that on the 10th May 2002 one Catherine Mathiot claiming to be the owner of the said property together with the other co owners caused to be registered on affidavit on transmission by death and it is clear therefrom that the applicant is not the owner of the said property in law. 14. I further that on the 3rd June 2002 one Willis Magnan caused a further affidavit on transmission by death to the registered wherein he claimed to be the owner of the said property together with other owners. Again the name of the Applicant is not mentioned as a co-owner of the same. I further state that I am legally advised that the property is in co-ownership and therefore the applicant cannot bring this action in law without the appointment of a fiduciary to act for and on behalf of the co-ownership. I am also reliably advised that the house on the property was built by the District Administrator and the Government and not the Applicant.’

 

  1. What the respondent accuses the applicant of failing to do is what she fails to do too and that is attach documentary evidence to substantiate the claims of ownership by others other than the applicant. Nevertheless it is the duty of the applicant firstly to show that it is the owner of the property in issue and in this I am satisfied that the applicant has failed to do. Much as it is claimed that the applicant is one of the heirs of his father and mother, it is not established what type of ownership, if at all, that the father and mother enjoyed over either S2302 or the house constructed thereon. It is not clear if any executor was appointed to the estates of Auguste Octave and Charlotte Octave, and whether or not the estate has been distributed to the heirs.

 

  1. This application has failed to clear the basic threshold of ownership and is dismissed with costs.

 

Signed, dated and delivered at Victoria this day of September 2011

 

 

 

 

 

FMS Egonda-Ntende

Chief Justice