Julienne & Anor v Labrosse (CS 41 of 2022) [2024] SCSC 87 (4 June 2024)

SUPREME COURT OF SEYCHELLES Reportable [2024] CS41/2022 .. In the matter between: BERYL CLAUDETTE JULIENNE Plaintiff BORN LABROSSE (rep. by Bernard Georges) MARIE CLAUDE LABROSSE (rep. by Bernard Georges) and JEAN-JOSEPH LABROSSE (rep. by Karen Domingue) Plaintiff Defendant Neutral Citation: Before: Summary: Heard: Delivered: Labrosse and Anor v Labrosse (CS41122) [2024] June 2024). Pillay J Declaratory order that the Plaintiffs are the joint owners of the dwelling house previously owned by their father Jean-Claude Labrosse 5th October 2023 4th June 2024 (4th [1] The Plaint is dismissed [2] I make no order for costs. ORDER JUDGMENT PILLAY J: [1] The Plaintiffs originally filed a Plaint dated 17th March 2022 seeking the following orders: (i) (ii) for a declaratory order that dwelling house previously owned by their father, Jean-Claude Labrosse. the Plaintiffs are the joint-owners of the for an injunction preventing the Defendant from carrying out any orfurther renovations on the said house. [2] On 22l1d February 2023, having been granted leave to do so, the Plaintiffs filed an Amended Plaint seeking additionally; (iii) for a declaratory order that the Plaintiffs have inherited from the deceased, a droit de superjicie over the part of Parcel J958 as is occupied by the said dwelling house,' [3] The Plaintiffs claim that they hold a one-sixth undivided share previously belonging to their deceased father Jean-Claude Labrosse. They claim that the deceased owned a dwelling house on Parcel J958 in which he resided until his death. The said house now belongs to the Plaintiffs by reason of their having inherited it from their father. They have a droit de superficie over the part of Parcel J958 as is occupied by the said dwelling house. The Defendant has taken possession of the house and to date has denied the Plaintiffs access to the said dwelling house. The Defendant is renting the house to one Michel Pool. Despite several reminders to the Defendant to cease renovations to the said dwelling house, the Defendant has refused or neglected to do so. Despite several reminders by the Plaintiffs' attorney asking Michel Pool to vacate the house, he has refused to do so. [4] The following facts are not in dispute: is the Plaintiffs' uncle. The Plaintiffs are co-owners in Parcel J958 situated at Le Niole, Mahe, Seychelles. The Defendant Before his death, the deceased had allowed one Michel Pool to reside with him in the house in question rent-free as he was facing familial issues. The Defendant has carried out renovations on the house without Plaintiffs. Michel Pool is paying SCR 10001- for his utilities. the consent of the [5] The Defendant disputes all the rest of the claims of the Plaintiffs and counter-claims that the first Plaintiff should correct the affidavit on transmission that she swore dated 13th March 2020, to reflect all the owners of Parcel J958 together with their corresponding shares. [6] In answer to the counter-claim, the Plaintiffs have no objections to rectifying the register for Parcel J958, provided that she is given time to do so. [7] Marie-Claude Labrosse testified that she is the daughter of Jean-Claude Labrosse and Marie Valerie Labrosse nee Simeon. She has one sister, Beryl Labrosse. Her father passed away in 2019. At the time of his death he had a property at Le Niole. He had lived in the house since the witness' birth until his passing. Her father had siblings; the Defendant, Norbert Labrosse, Clenche Jacques Labrosse, Antoinette Joliecoeur and Clarisse Labrosse as well as one Rita who has passed away. Her father's house is being occupied by one Michel Pool. It was her testimony that before her father passed away they were not able to go to the house and even after his death the Defendant stopped them from going to the house. On the property there are two houses. One house the witness' grand-parents lived in and the other house was occupied by her father. [8] In cross-examination the witness insisted that she is the daughter of the Deceased Jean Claude Labrosse. Her parents separated when she was 11 or 12. Along with her mother and sister she went to live at her maternal grandfather's property until 2017. A few times her father came back and tried to fix things with her mother. Then he went to live at Ma Joie with his sister. When he moved back to Le Niole she always used to visit whenever she felt like it. It was her evidence that the Defendant sent word through other people to say that if the Plaintiffs accessed the property there would be problems. She accepted that the house was in a dilapidated state at time of the Deceased passing. She could not say though who had built the house. But she saw the Defendant doing things at the house often though she did not know who financed the renovations. She accepted that the renovations she saw him doing were prior to her father's death. She accepted that she has no papers as regards her father having permission to build on the property or papers to show how he financed the build. [9] Beryl Julienne testified that she is the daughter of Jean-Claude Labrosse and Marie Valerie Labrosse. She stated that when she went to Brian Julie to have the affidavit on transmission by death drawn up following her father's death, she informed him of all the heirs to be included. However incorrect information was inserted on the affidavit. She has now got the proper information and is willing to rectify the mistakes which she has done. She has submitted all the paper work and is awaiting an answer. She stated that she knows Michel Pool. He is a friend of her father's and has lived with him more than 5 to 6 years. Following her father's passing she asked Michel Pool to vacate the house. He refused and said he has to talk to the Defendant who owns the house. She requested Mr. Julie write to Michel Pool which he did on Illh August 2020 and 2151 August 2020. She gave the letters to Mr. Pool herself but received no response. [10] It was her evidence that before her father passed away she used to talk to him by the road. There was an incident whereby the Defendant blocked the road stopping her son from getting home. When she went to her grandmother to attempt to ask her to speak to him the Defendant hit her thereafter he was arrested and spent one night in jail. [11] In cross examination she stated that herself, her mother and sister moved out of the house their father was occupying when she was around 8 or 9 years old. From there they moved to her maternal grandmother's place. Her father then moved to Ma Joie to his sister's Rita before moving back to Le Niole. When he returned to Le Niole the corrugated iron sheets on the house was a bit rusty and the wood too. When he moved back to Le Niole they always used to visit him by the road side. She stated she did not know if her father had permission to build on the property nor did she have any documents to show the house was built and financed by her father. [12] Valerie Labrosse testified that she is the mother of Marie-Claude Labrosse and Beryl Julienne nee Labrosse. She is married to Jean-Claude Labrosse. At the time of their marriage he owned his own house on the family property at Le Niole. There were two houses on the family property, one for her husband's mother and one for her husband. Her husband constructed his house by himself with help of friends. It was her evidence that there was no permission but he was "given by mouth". He made his own bricks to build the house. She was unaware if anyone else helped her husband build the house. Norbert, her husband's brother assisted in the build. She did not know if any of the other brothers assisted financially with the construction. [13] In cross examination she stated that she moved into her husband's house on 6th August 1975. She did not know about any permission given to her husband. She did not know about the financing of the construction either. It was her testimony that she left her husband's house when her eldest daughter was 17 years old to live with her own father. Her husband came to live with her for a while trying to reconcile. During that time there was a tenant in the house. One Leonel Jean, who was paying SCR 800/- to her husband. She disagreed that the house was dilapidated or that it required renovations. [14] In re-examination she stated that there was no permission in writing but confirmed that her husband's mother and father gave permission for the house to be constructed. She clarified that Leonel Jean rented the house for two years while he was building his own. During that time the Deceased lived with her at her father's house but she could not recall where her husband went after Leonel Jean moved out of the house. [15] Antoine Labrosse testified on behalf of the Plaintiff. He stated that he is the second child in his family of a family of 8. The first child being Jean-Claude Labrosse. There is a 3 years age difference between himself and Jean-Claude. He agreed that the Defendant is the last born in the family. The house at issue was built around 1970 upwards. Before the Deceased got married. He stated that the property he has, he bought from his father. He denied that it was his mother who transferred the land to him, stating that on the paper there is his father's name. He acknowledged that there are two houses on his mother's property. He accepted hearing that his mother's property belongs to the heirs. Jean-Claude Labrosse asked his mother and father for a place to build his house and his father told him he could build his house. He started to make bricks and build the house. It was his testimony that at the time there was no requirement of getting a written plan but that he got permission from his father to build the house. His mother never worked so she could not give money to his brother to build the house. He believed that his brother built the house himself. None of the other brothers helped but for himself who every now and then would help the Deceased and his friend with the build. He agreed that when the deceased got married the house was already a two bedroomed house with a kitchen, sitting room and bathroom. [16] He recalled that the Deceased went to live at his father in law's with his wife and rented out the house to one of his friends, one Leonel Jean. He did not know who collected the rent. When the Deceased separated from his wife he went to live with his sister at Ma Joie. It was his testimony that when his brother came back to live at Le Niole he had already built an addition to the house. He could not remember if Leonel Jean was still living in the house at the time or whether the addition was done for the Deceased to live in. He accepted that the Defendant has not been on good terms with him for some years, since their mother passed away. The Defendant was the one taking over and running everything. He denied that the Defendant lived with their mother at Le Niole. It was his evidence that he came back when their mother died to fix up the house and live in it. The Defendant also blocked the access way he was using to his property beside his mother's house. [17] He denied that he would do anything for his brother not to get ahead in life but stated that he is in Court to help his niece to get what they deserve. It was his testimony that he had been told that he had no share in his mother's property as he had already got the land where his house is. He has been told that he could not access his property through his mother's property like he used to and even ifhe goes to the Police nothing is done as the Defendant's wife is friends with the Police. He accepted that when the addition to the house was built Leonel Jean was still living in the two-bedroom house. It was after Leonel Jean moved out 12 years later that the Deceased moved into the two-bedroom house. The Defendant advised the Deceased to take a loan to renovate the house. He denied that their brother Wins ley sent money to renovate the house. He denied that his mother gave permission for Michel Pool to live in the house. He stated that it was the Deceased who gave permission. [18] The Defendant testified on his own behalf. His evidence in chiefis that since his mother's passing in December 2015, the first Defendant has had the property J958 transmitted to some of the heirs omitting Antonia Labrosse, Rita Lorna Rose nee Labrosse and Marie Valerie Labrosse. It was his testimony that for as long as he has had consciousness he has always heard his mother say that the house his brother is in, she put him in that house. He stated that his brother informed him that he never received any document. [19] According to his testimony the Plaintiffs were around 10 years old and 5 years old when their parents moved to their maternal grandfather's house. His brother lived with his in law for about three years. Then he moved to his sister Rita's house. He stayed with Rita for about a year. During that time one Leonel Jean was living in the house. The Deceased gave him permission to live in the house. But the Defendant did not know ifhe was paying rent. Leonel Jean remained in the house for 12 years. When the Deceased came back he asked his mother for permission to add an extension to the house. The Defendant built the extension which was financed by Glenn Jacques Labrosse. It took 2 and half years for the extension to be built. It was done about 9 years ago. It was his evidence that the house belongs to the heirs of his mother as it was built with the help of all the family. [20] As regards Michel Pool he stated that the Deceased informed him that Michel Pool helped him break down the big boulder. The Deceased went to his mother and explained the situation and she gave permission for him to stay. At the time of his brother's death Michel Pool was still living in the house which was in a dilapidated state. He started repairing the windows and doors. He denied refusing the Plaintiffs access to the house. He denied ever collecting rent from Michel Pool. [21] In cross examination the Defendant stated that his mother always stated that his brother is innocent and she will help him. He agreed that when his mother said that she placed his brother in that house it could mean that he would not be living there if she hadn't given him permission. He agreed that his mother gave his brother permission to construct the house. He accepted that the extension was built in 2014 after his brother asked his mother for permission. He did not know if his mother had given permission for the construction of the house as he was too young. [22] In cross-examination he stated that he did not know if his mother gave permission for his brother to build the house. With regards to Mr. Leonel he knew that Mr. Leonel visited his mother but does not know what was discussed. [23] The Learned counsel for the Plaintiff submitted that the issues for the Court are as follows: (i) What is a droit de superficie and how is it created? (ii) Did the Deceased have a droit de superficie, and have the Plaintiffs inherited the droit de superficie from the Deceased? (iii) When does a droit de superficie come to an end? (iv) Can the superficiare renovate or reconstruct, and what type of building may be reconstructed? [24] I would agree that these are indeed the issues for the Court to consider in order to come to a decision. However, the second issue identified should come last. I propose to address the submissions of counsel as I address each issue. What is a droit de superficie and how is it created? [25] Learned counsel for the Plaintiff submits that a droit de superficie is defined in Enyclopedie Dalloz, Civ VII, verbo Superficie as follows: "3. Le droit de superficie est un droit reel detache de la propriete du sol... " [26] He further Tailapathy wherein she stated as follows: relies on the essay of Edith Wong entitled Droit de Superficie: Coelho v right is an immovable property law "The droit de superficie stemming from the ancient civil law of the Romans. At its core, it is jurisdictions - of a real right in property. the notion of a division - and not the dismemberment This leaves behind two persons owning a real right in the land: the 'bare owner', who owns the volume below the ground, and what is called the 'superficiare', who owns the surface and volume above the ground, with the latter being able to possess such right in perpetuity. " found in civil [27] He submits that a droit de superficie is created through either a sale by deed, lease or concession, on the basis of Dalloz above, paragraph 8: "8. Le tite constitutive du drou de superficie est Ie plus souvent unde convention qui, en dehors des cas tout it fait exceptionnels ou elle serait d'une autre nature (echange, partage) concession. " est soit un contrat de vente, soit un contrat de bail ou de [28] He further submits that, as in the matter at hand, a droit de superficie is also created by the landowner giving someone the right to build on his or her property. [29] Learned counsel is indeed correct. In the case of Ptd Limited v Zialor (SCA 32 of 2017) [2019} SCCA 47 (16 December 2019) Robinson JA stated thus as regards the droit de superficie: [90} It is undisputed that the concept of "droit de superficie" does not appear in the Civil Code of Seychelles. the "droit de superficie" has been established by jurisprudence. is also undisputed that It [96] As can be gatheredfrom ... doctrinal writings and jurisprudence, the "droit de superficie" is the right which a person (the "superficiare") has on immovable property found on or under land belonging to another person (the "trefoncier") who owns the land or under which the immovable property of the superficiare isfound. Therefore, a person who has a "droit de superficie" on a property is the owner thereof without being the owner of the land on or under which the immovable property is situated. [97] In other words, the rule according to which the ownership of the soil carries with it the ownership of what is above and what is below it, posed by Article the French Code Civil (Article 552 alinea J of the Civil 552 alinea J of Code of Seychelles and the Code Civil Mauricien) contains a "presomption simple" posed acquisition of "propriete" by the mechanism of accession. As stated in the persuasive authority of Mr. & Mrs Radha Jugoo supra, the Code Napoleon which sets the principle of "droit d 'accession" contains the following rider: "si le contraire n 'est preuve". jurisprudence», which "article 553 of allows the by [98] Moreover, the fact that a "droit de superflcie'' to the right created by Article 555 of the Civil Code of Seychelles is acknowledged by in her book - Legal Metissage in a Micro-Jurisdiction. The Twomey, CJ, Mixing of Common Law and Civil Law in Seychelles. At p. 83 of the said book, Twomey, CJ states - is different "[t}his is the backdrop to courts using equity to create the droit de supercifie, which is a real right and is distinguished from the limited right to compensation in art 555", [30] In the case of Leonel v Turner & Ors (MC 56 of 2013) {2022J SCSC 599 (7 July 2022) Andre J looked to jurisprudence to define a droit de superficie: [20} A droit de superflcie is defined asfollows> "", the right which a person (the "superficiare ") has on immovable property found on or under land belonging to another person (the "trefoncier'') who owns the land or under which the immovable property of the superficiare is found. Therefore, a person who has a "droit de superficie II on a property is the owner thereof without being the owner of the land on or under which the immovable property v Seychelles Licensing Authority & Another 44). (SCA 3712016) {2018J SCCA is situated." (per Robinson JA in Monthy Her Ladyship proceeded to state: the obvious, [that} the superficiare does not own the land on which his or her immovable property lies (see also De Silva v Bacarie (1982) SCAR 45) .. Her Ladyship further considered the explanations of Twomey JA in Khudabin v Porice & Anor (SCA 68/2018 (Appeal from CS 212017) {2018J SCSC 976) {2021J SCCA 34 (13 August 2021) who explained that: a droit de superficie is a creation of French jurisprudential law "which was extends to the inherited in our laws and further qualified. Such qualification consequence on part of [he Land owner as well as the Limitations on part of the constructor, Her Ladyship went on to consider: v SLR 124), (1992) Chang-Leng Juliette that the trefoncier cannot require the superficiare to remove an extension built or to vacate the property unless compensation of the construction is paid. This secures the real right on part of the superficiare, which carries with it the right to enjoy the use of the land as long as the construction covers the land. Moreover, Perera J (as v Pillay (2003) SLR 68 held that a droit de superficie is he then was) in Adrienne [which] confirmed an overriding interest where it is registered in terms of section 25 of the Land Registration Act. This position was confirmed by Twomey JA (with the concurrence of Robison JA and Fernando JA as he was then) in Cable and Wireless (Seychelles) Ltd v Innocente Gangadoo (Civil Appeal SCA 1412015) [20181 SCCA 29 (31 August 2018). [24J Our jurisprudence has also qualified the droit de superficie by taking into the intention of the parties as an important factor when determining the account duration of the said right (see Ministry of Land Use and Housing v Stravens (Civil Appeal SCA 2412014) [20171 SCCA 13 (21 April 2017)). In addition to this, the Court in Adonis v Celeste, (CS 124/2012, highlights that a purchaser or successor in title will take the land subject to the droit de superficie. This further cements the notion that it is an overriding interest. [25J In this instance, and following the jurisprudence laid out above, 1 am of the view that what the 3rd respondent holds is an overriding interest. 1 am also of the the property, Parcel V 5147 are bound by in title of view that the droit de superficie and therefore cannot ask the 3rd respondent to vacate unless they offer him compensation. the successors When does a droit de superficie come to an end? [31] Learned counsel makes reference to Dalloz, the case of ML UH v Paula Stravens SCA 24 of 2014 wherein both text and case-law state that a droit de superficie is perpetual. [32] He, however, then proceeds to submit that the ratio in MLUH v Stravens (that the droit de superficie comes to an end when the superficiare wants or is forced to reconstruct or rebuild) is no longer good law and should not be followed in this case. [33] What is the ratio of Stravens't The ratio of Stravens is to the effect that a droit de superficie can be perpetual or time limited depending on the circumstances of each case. [34] In the case of Padayachy v Jean & Anor (CS11212013) [2019} SCSC 1138 (23 January 2019) the Court found that "whether a droit de superficie has been created or what its duration is will certainly depend on the evidence in each case". The Court relied on the findings of Sauzier J in Albest v Stravens (1976) (No.2) SLR 254 as well as the case of Ministry of Land Use and Housing v Paula Stravens Civil Appeal SCA 24/2014) [2017J SCCA 13 (21 April 2017). [35] In Khudabin v Porice & Anor (SCA 68 of 2018) [2021J SCCA 34 (13 August 2021) the Court of Appeal recognised the findings in Ministry of Land Use and Housing v Stravens (Civil Appeal SCA 24/2014) {2017! SCCA 13 (21 April 2017), that: "[Ujnless expressly stated or inferred otherwise from the intention of the parties, a droit de superjicie may well be perpetual. " [36] Therefore, depending on the circumstances of each case a droit de superficie can be temporary, coming to an end when the superficiare needs to reconstruct, or can be perpetual. Can the superficiare reconstructed? renovate or reconstruct, and what type of building may be [37] In Tailapathy v Berlouis (1978-1982) SCAR 335 the Court of Appeal found that at the end of the lease Mrs. Tailapathy had acquired a droit de superficie over the land where the house was sited and that she could carry out the extensive repairs. The Court of Appeal, citing Aubry and Rau, Droit Civil Francais 4th Ed. Vol2 page 438-439 found that in certain circumstances a droit de superficie can be integral and confer the same rights to the superficiary owner as the landowner even in terms of constructing and rebuilding. [38] Stravens reiterated this view. However, the Court distinguished it from the droit de superficie in the case of Coelho v Collie (1975) SLR 78, where Sauzier J found that where there was no transfer evidenced by a notarial act but only a simple act granting a right to build on the land, the droit de superficie created would subsist temporarily at least until the building needed rebuilding. [39] What can be gleaned from the above is that whether the superficiare can renovate and the extent of those renovations with be wholly dependent on whether the droit de superficie is term limited or perpetual. [40] Further it stands to reason that the reconstruction would have to be to the extent of the original building, as well as the specificities of the permission to build in view ofthe nature ofthe droit de superficie itself that the superficiare only owns the surface and volume above ground. Did the Deceased have a droit de superficie, superficie from the Deceased? and have the Plaintiffs inherited the droit de [41] This, Learned counsel correctly submits, is a factual question. It is the submission of Learned counsel that the Deceased sought and obtained the permission of his mother who owned the land at the time to construct his dwelling house. It is his submission that witnesses confirm that he built the house with his own funds using gravel and other materials to make bricks used for the construction. Learned counsel submits that the Plaintiffs have established that the Deceased had a droit de superficie. [42] He further submits that the droit de superficie being a real right in land it binds the donor (the deceased's mother) and the donee (the deceased) and all their successors in title. It is his submission that as the Deceased had a droit de superficie, upon his death his daughters inherited the house and subsequently the droit de superficie. [43] It is the submission of Learned counsel that the Plaintiffs have complete freedom to rebuild the house as they wish provided they do so within the same "spatial area". [44] In the case of Padayachy v Jean & Anor (CS1l212013) [2019} SCSC 1138 (23 January 2019) Twomey CJ held as follows: The droit de superjicie however must be created by an agreement between [24J In the land and the third party claiming the right of retention. the owner of it is normally created by a registered agreement outlining the right to Seychelles, build on someone 's land. Such an agreement is exemplified by Exhibit P2 in which the jirst defendant's mother gave the jirst defendant a right to build on her land. infer that the third party building on the owner's land will have Such agreements the right to remain in the building once constructed. It is also possible to have an oral agreement to this effect. [45] Her Ladyship added that: There is also jurisprudence is not part of the right. However, to a droit de superficie has deteriorated, constante that a droit de superficie is personal [26} to the third party to which it was granted. It is a servitude personelle. and although children succeed to the right, it cannot be sold. Generally, once the building which it may not be repaired because is subject that such as those (J 978-1982) SCAR 335 the alluded to by Lalouette JA in Tailapathy v Berlouis droit de superficie can be integral and confer the same rights to the superficiary owner as the landowner even in terms of constructing and rebuilding. Sauzier J in Albest v Stravens SLR 254 observed that whether the right was perpetual or for a term would depend on the circumstances of the case and the in the case of evidence adduced. This view was followed by the Court of Appeal Ministry of Land Use and Housing v Paula Stravens Civil Appeal SCA 2412014) [20171 SCCA 13 (21 April 2017). in certain circumstances, (J 976) (No.2) depend on the evidence its duration is will [27} Whether a droit de superficie has been created or what I have stated there is in each case. As certainly evidence that such a right was created between the first defendant documentary and his mother but having considered the evidence in the present suit, I cannot find any evidence that the defendants or their predecessor in title ever granted such a right to the plaintiff I cannot therefore grant such a right to the plaintiff [46] In Khudabin v Porice & Anor (SCA 68 of 2018) [2021JSCCA 34 (13 August 2021) in Adonis Further, on Malbrook v Barra (1978) SLR 196 andYoupa that: v Celeste, CS 12412012, the Supreme relying v Marie (1992) SLR 249 found Court to a droit de superficie takes the land subject ''[A} lthough such a righf is personal subject Hence a droit de superficie persists with the transfer of pro perty from the owner of/he land to his successor in title. JJ to the grantee, a purchaser of land that is to the droit de superficie. [47] Of consequence then is the credibility of the witnesses for the Plaintiff. Only if the COUl1 finds that there is a droit de superficie can it then decide if the Plaintiffs have inherited the said right. [48] Initially in cross examination Antoine Labrosse, when asked if Leonel Jean was still living in the house when the Deceased returned from his sister's at Ma Joie, stated that he could not recall. He also could not recall if Leonel Jean lived in the house for 12 years and if an addition was done for his brother next to the house. However, when the same question was asked of him later on in cross examination he had this to say "Yes, because they have not recei ved their house yet?" He went from not recalling if Leonel Jean was stillli ving in the house when the Deceased came back from Ma Joie or how long Leonel Jean lived in the house to knowing, not only that Jean was still living in the house but that they were living there because they had not received their house yet. [49] The witness came across as having some serious issues with his brother, the Defendant, having taken over everything since their mother's passing. He was evasive, with selective memory. There seemed to be some undercurrent of bad blood between them which taints his evidence. [50] As for the Plaintiffs' mother she went back and forth as regard her husband having permission to build on the property. She, however, had no knowledge with regard to how the house was built or who financed the build. [51] In cross examination Marie-Claude Labrosse accepted that there were additions done to the house. It was her testimony that there were times she saw the Defendant doing works at the house though she did not know who financed those works. She accepted that these works were done prior to her father's death. [52] The standard of proof in all civil cases is on a balance of probabilities. Generally, that is understood to mean "is it more probable than not". In the case of CaroLus and Others v Scully and Others (SCA 3912019) [2022J SCCA 1 (28 January 2022) (Arising in CS 0912013) SCSC 422) [2022J SCCA 1 (28 January 2022) Dr. L. Tibatemwa-Ekirikubinza JA explained the civil standard of proof as follows: [51J The balance of probabilities is the requisite standard of proof by which a Saying trier of fact must determine something is proven on a balance of probabilities means that it is more likely than not to have occurred. that some event happens is more than 50%. the existence of contested facts. It means that the probability [52J What is the difference between succeeding on the balance of probabilities andfailing on the balance of probabilities? In one case MilLer vs. Minister of Pensions [1947J 2 All ER 372 Denning J said: "If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged, but if the probabilities are equal it is not. " [53] I accept the evidence of both sides that the deceased's mother gave permission for a house to be built to house the deceased. However, still in issue is how the house came to be built. On the evidence it cannot be said that it is more probable than not that it was the deceased who built the house. On the evidence it is just as probable that the deceased built the house out of his own funds as it is that the deceased along with his siblings and mother's financial assistance built the house for the deceased to live in. [54] In the circumstances the Plaintiffs having failed to prove their case to the required standard their case fails. The Plaint is dismissed. [55] In view of the matter being one involving family members I make no orders for costs. [56] As regards the counter claim it is noted that the Plaintiffs have already resolved the issue. 16