[1] Introduction
[2] This is a case for the division of the matrimonial property between Danielle Marilyn Etheve, Petitioner, and Desire Etheve, Respondent, pursuant to the Matrimonial Causes Act. The Matrimonial Causes Act is hereinafter referred to as "the Act". The property in dispute is the land comprised in title number PR2754 situated at Anse Kerlan, Praslin (hereinafter referred to as "Property PR2754") and the matrimonial home and two other houses standing thereon. In addition, the second property in dispute is the land comprised in title number PR2757 situated at Anse Kerlan, Praslin (hereinafter referred to as ″Property PR2757″).
[3] Background
[4] Petitioner and Respondent were married in Victoria, Mahé, on 17 April, 1993. There are two children born of their marriage. Petitioner and Respondent were married for 16 years before Petitioner filed for divorce in January, 2009. The divorce was made final on 25 July, 2011.
[5] Subsequently, Petitioner filed a petition supported by an affidavit for a division of the matrimonial property. Petitioner in her affidavit wants: ″50 % of the home and properties, namely land parcels PR2754 and PR2757″. The petition prays the court for the following ―
″a) … an order of full and lawful and beneficial ownership of land parcels PR2754 and PR2757 and the matrimonial home and houses appertained thereof for and in the entire interest of the Petitioner in accordance with rule 4 (i) (f).

b) … an order that the Petitioner be granted, forthwith, sole occupancy of land parcels PR2754 and PR2757 and the matrimonial home and the houses appertained thereon, forthwith, in accordance with rule 4 (i) (j).

AND

c) … an order restraining the Respondent from entering and remaining on land parcels PR2754 and PR2757 and the matrimonial home and the houses appertained thereon, forthwith, in accordance with rule 4 (i) (h).″.

[6] Respondent disputes the claims of Petitioner. Respondent prays this court to order that Petitioner should be awarded 5% of the total value of the property as valued by Stanley Valentin, quantity surveyor, or to dismiss the application.

[7] The evidence for Petitioner and Respondent

[8] For Petitioner the court heard evidence from Petitioner and Cecile Bastille, a quantity surveyor.
[9] The evidence of Petitioner. Petitioner testifies that when Petitioner and Respondent got married, Respondent already had a house (herein the ″first house″) and another one which was partially built with cement blocks and corrugated iron sheets on Property PR2754 (herein the ″second house″). Respondent had a small corrugated iron house on Property PR2757 (herein the ″fourth house″) and that it was there when she met Respondent. The fourth house is still there.
[10] Petitioner and Respondent stayed with the Respondent’s parents for one year after getting married while their matrimonial house (herein the ″third house″) was being built on Property PR2754. Respondent paid towards the cost of building the third house from money earned from fishing and renting out of the first house and fourth house. Petitioner’s contribution towards the third house was towards buying the fabric and sewing the cushions, putting up the curtains, buying little items for the place like for example plates. They moved into the third house when she was 7 months pregnant.
[11] Petitioner worked as a sales clerk at SACOS on Mahe and stopped upon getting married to Respondent and moving to Praslin. Petitioner started working with Respondent’s two sisters three months after getting married; Isabelle Gardet and Marilyn Etheve at Cocodemer boutique. She was paid Seychelles rupees 2500.00/- monthly and she worked there for a year before stopping when she was 5 months pregnant with her first child in November, 1994, Ginette Etheve born 19 November, 1994. Then she had her second child in April, 1996, Gustave Etheve. Respondent did not want her to go to work but to stay home and look after their two children.
[12] Respondent has a left artificial leg. Upon marriage Respondent was a fisherman; he also did carpentry and plumbing; he stopped playing music when they got married. While she took care of the children and the business Respondent was engaged in fishing for mackerel and he made good money; although she could not tell how much. Respondent went fishing on average twice a week. Respondent had a ″fiberglass boat″.
[13] Petitioner and Respondent turned the first house into a duplex house in order to extend the business three years after the marriage. It is to be noted that upon getting married to Respondent, Respondent was already renting out the first house. Petitioner states that they turned the first house into a duplex house from the money they were earning from the fishing business and Respondent also got help from his parents. She agrees that it was Respondent’s money. They completed the duplex house at the same time that the second house was completed. Respondent used his money to complete the second house. They rented out the duplex house and the second house at the same time when works carried out were completed. In 2007, Petitioner and Respondent carried out major renovation and extension works on the second house, so that they can turn it into their own home. To be noted that there is a lack of clarity as to whether Petitioner and Respondent made the second house their matrimonial house. Petitioner contributed Seychelles rupees 65,000.00/- towards renovation costs from a loan she acquired from Barclays Bank in November, 2006. Respondent co-signed the loan and Petitioner says that she paid off the loan (exhibit P4).
[14] Petitioner and Respondent were renting out three properties; the duplex house, the second house and the fourth house; they rented Seychelles rupees 3500.00/- to the government on a long term basis and Seychelles rupees 200.00/- per day to tourist. She looked after the business of renting out the three houses from 1996 until she separated from Respondent on 31 January, 2009. Petitioner wrote letters, did the bookings for tourists, did the maintenance, did the laundry, cleaning, and marketing, did the accounts, paid the bills and called the banks to check foreign currency. She reports that she had to run the business since Respondent was uneducated. She further adds that tourists sometimes came for two weeks, four months or a month. Respondent would sometimes welcome the tourists, did the maintenance, the painting and cleaning. Petitioner adds that it was Respondent who collected the money from the tourists. Petitioner and Respondent had no employees.
[15] Respondent was the breadwinner so he took care of the expenses; contributed towards the utility bills and food from the money that he earned. She also adds that Respondent would spend all collected money from the tourists on the houses’ expenses; all the money she explains was put together and went towards the houses’ expenses. Respondent bought her car to the sum of Seychelles rupees 67,000.00/- in 2002; Petitioner was still using the car until it got damaged in an accident in 2012.

[16] Petitioner also mentions that one rent money from the duplex house went into her bank account to the amount of Seychelles rupees 5500.00/-. That was her only income. Petitioner explains that she used the money to buy items for the houses such as new bed sheets or pillows and clothes and things for the two children. She also mentions that she contributed towards other expenses. The money still continued to go into her account even after her separation from Respondent in 2009 and she currently receives Seychelles rupees 5500.00/-. Petitioner states that the Seychelles rupees 5500.00/- is the money agreed for alimony upon her separation from Respondent and when Petitioner was granted custody of the two children. She states that she spends the money on the two children.

[17] Petitioner commissioned Cecil Bastille, quantity surveyor, to evaluate the properties. Cecile Bastille submitted an evaluation of the two parcels of land exhibit P5. Petitioner argues that she does not agree with Veronique Bonnelame’s estimation of the Property PR2754 at Seychelles rupees 5,000,000.00/- compared to Cecile Bastille at Seychelles rupees 11,000,000.00/-.
[18] It is to be noted that Respondent, through counsel, did not rely on the valuation of Veronique Bonnelame, but that of Stanley Valentin, a quantity surveyor.
[19] Petitioner makes the following points in cross examination. Petitioner confirms that Respondent is a fisherman, does carpentry, plumbing and denies that he stopped doing music when he got married to her. She agrees that having the artificial left leg did not stop Respondent from working and carrying a normal life. She also states that both children see their dad whenever they want to; and that other than the Seychelles rupees 5500.00/- that she gets from Respondent he also assists his children financially.

[20] Petitioner denies that she started working after her two children started Primary school and she argues that she started working for Respondent’s two sisters after three months of getting married to Respondent. She stopped after she got pregnant. She further agrees that Respondent was supporting her financially and he was the family’s breadwinner. He took care of the expenses; paid the utility bills and phone bills. She expresses that the expenses towards the third house should come from Respondent and not from her since he was the husband so he should provide. Petitioner agrees that her financial contributions were very minimal as compared to Respondent. She also agrees that Respondent bought her a car at Seychelles rupees 67,000.00/- in 2002 and she took the car when she left in 2009; and that the car is no longer in use due to an accident in 2012.

[21] Petitioner agrees that Property PR2757 does not belong to Respondent but to the heirs of Louis Hoareau; and that the only heir of Louis Hoareau is his daughter, Jeanine Hoareau, the cousin of Respondent. She adds, without more, that Respondent built the small house standing on Property PR 2757. She agrees that Respondent did not buy Property PR2754 but he inherited it from his mother; that when she met Respondent there was already a house on Property PR2757; and that she did not know when it was built but only that the Respondent was renting it out.

[22] Petitioner denies that the first house was turned into a duplex house before she met the Respondent. She claims that the house became a duplex house after their third year of marriage; and that both she and Respondent agreed to turn the house into a duplex house with the aim of extending their self-catering business. She adds that Respondent hired the architect and paid all the expenses towards the renovation while she used the rental income she was getting towards the expenses of the other two houses. It is to be noted that there is a lack of clarity about which rental income Petitioner was getting at the time in light of her evidence in chief that Respondent paid her a rental income from one of the duplex house. Petitioner, further, argues that while the second house was being renovated Respondent was renting out the first house and the fourth house.

[23] Petitioner insists that the second house was unfinished when she got married to Respondent. In the words of Petitioner ″ [i]t was only with cement blocks and already covered that is all. No window, no doors, not even -″ (Proceedings of 2 August, 2013, at 9 a.m.). The second house was only finished at the same time as their matrimonial home, the third house, was built. She, however, agrees that she did not contribute financially to the second house nor to the third house and that it was Respondent who contracted the masons, bought the materials, and paid for the transportation of materials. Petitioner states that she had no knowledge of the masons, the architects who worked on the second and third house. Petitioner adds that she took out a loan of Seychelles rupees 65, 000.00/- with Barclays Bank on 30 November, 2006, for the purpose of financing the renovation of the second home. To note Respondent’s signature as a borrower was also on the loan offer and Petitioner avers that she paid the loan in full by her and that all the money was spent on the renovation. Petitioner explains that the money was spent on buying tiles, materials on Mahe and she avers that the money did not go towards the purchase of a brand new car from abroad. She does agree that Respondent took out a loan on 17 June, 2007, and she argues that even if there was a gap of time between her loan and that of Respondent it does not mean that she did not spend the money on the house.

[24] Petitioner states that both she and Respondent did not have a licence during the time they were renting out the houses to tourists. Although at the beginning she was claiming that they were running a business of renting out the houses to tourists she then explains that those tourists were actually their friends who lived abroad and they would occasionally come to stay at the houses. Their friends will not pay a full rent but still some money came in. Sometimes they rented the houses on a long term basis. She also, further, agrees that when she met Respondent he was already renting out those houses; and that he did not start when he met her. She assisted Respondent with the business of renting out houses.

[25] The evidence of Cecile Bastille. An expert witness for the Petitioner, Cecile Bastille works as a quantity surveyor and she obtained her qualifications from Nottingham University in UK where she studied for four years. She has been in the profession since 1992, 21 years in total. Cecile Bastille has often appeared in court.

[26] Cecile Bastille confirms that she evaluated Property PR2754 and Property PR2757 (Report exhibit P5). She conducted an assessment of both properties in a day; her valuation totals to Seychelles rupees 11,111,500.00/-. She briefly explains that the sum represents the total of all the different parts; she had broken it down to give separate valuation.

[27] Cecile Bastille had valued Property PR2754 (approximately 1500 square meters) at Seychelles rupees 2,200,000.00/- million. She opines that she had based her valuation on factors such as the area of the land, proximity to the beach, flat land, and easy access. she had used the figure of Seychelles rupees 1500.00/- per square meter and according to her there are ″a lot of assessment calculations, comparison … it is not a matter of like if I put a figure where do I get the figure. There are a lot of aspects to it.″ (Proceedings of 2 August, 2013, at 9 a.m.).

[28] Cecile Bastille further explains that when valuing a property one has to consider whether that property could be easily turned into a commercial property so in the case of her evaluations she had considered the fact that the houses were being rented out. Cecile Bastille argues that it is difficult to do a comparative analysis of properties in Seychelles because ″the way the people do business, the way …. do business nothing is like authentic. Nothing is official, official. So, there is no such things as where did I get it″ (Proceedings of 2 August, 2013, at 9 a.m.). She further argues that she works from experience and also with how the market is ″moving″ and she explains that there is no specific figure she works with and it is mostly based on one’s research, accumulation of different things and different properties and she ″work[s] it backwards…do some average …and that’s how I get my figure… My figure did not come from one specific property sale″ (Proceedings of 2 August, 2013, at 9 a.m.). When cross examined to produce an explanation as to how the duplex house had been valued at Seychelles rupees 2.6 million, as to the value per square metre, Cecile Bastille argues that there is no such thing as per square metre. Cecile Bastille continues by opining that when she conducts her evaluation she goes on site and does all the measurements; she will start from the foundation, "the block work and what kinds of windows and doors are being used" (Proceedings of 2 August, 2013, at 9 a.m.). She further explains that based on experience she then prepares the index and as a quantity surveyor she knows how much it cost per square of block work, cubic metre of concrete and she does her calculations starting from ″the foundation, to block work, to roofing″ (Proceedings of 2 August, 2013, at 9 a.m.). She also adds that she also looks at the condition of the buildings, whether they are old or new and she uses her discretion to make those calculations. Cecile Bastille denies the suggestion of counsel that she has overvalued the properties on Property PR2754 and avers that the report she has written is correct.

[29] For Respondent the court heard evidence from Respondent, Maryline Etheve and Stanley Valentin, a quantity surveyor.

[30] The evidence of Respondent. Petitioner and Respondent got married on 17 April, 1993. Respondent and Petitioner resided at Respondent’s mother’s house after their marriage.

[31] Respondent confirms that he owns Property PR2754. At the passing away of his mother the land was not registered in his name since it had not been surveyed yet. The land was subsequently transferred in his name due to the fact that he had already built a house on it and it was also his mother’s wish for him to have the parcel of land. His siblings therefore transferred their inheritance rights to him and the land was transferred to him in 2007. Respondent consequently relinquished his inheritance right to parcel PR1503 to his siblings. He reported that Property PR2757 (exhibit R6) is owned by Louis Hoareau and the executrix is Jeanine Marguerite Hoareau, Respondent’s cousin.

[32] Prior to getting married to Petitioner he was a fisherman, a diver, a handicraft artisan, guitarist, and a singer; he sang in hotels.

[33] Respondent is also a carpenter and a plumber. Respondent is disabled, his left leg is shorter than his right; and he has had an artificial leg since 1990. The artificial leg does not stop him from working; he sells his fish on his bicycle.

[34] Property PR2754 has three houses; he explains that his mother Elodie Etheve nee Hoareau gave him permission to build the first duplex house (first house). The purpose was to rent out the duplex house. Mr Raza Victor, a mason by profession, was instructed to build the duplex house in 1985. He undertook the carpentry and plumbing work on the duplex house. The duplex house was constructed and completed in 1985 at the same time the new Praslin airport was being constructed; the house was financed by Respondent and his mother. When completed the duplex house was occupied by two Nigerian tenants by the name of George and Fabien, who were working at the airport, both had separate rooms. Respondent explains that he was living with his mother at that time. Application for electricity was made to Seychelles Electricity Corporation Limited on the 24 September, 1985, and it was approved 16 of December, 1985, exhibit R9.

[35] Respondent then states that the second house was built by Pierre Chrysostome. Pierre was the mason and Respondent undertook the carpentry and plumbing work. The second house was completed in 1992 before he had met Petitioner. Respondent financed the construction of the second house from the money he was earning from fishing, handy craft work, from singing in the hotel and also from the Seychelles rupees 7000.00/- rent he was earning from the duplex house. He paid towards the cost of transportation of materials to the site. Respondent lived with his mother at Anse Kerlan Praslin, while the second house was being built and upon completion he rented out the house to the Ministry of Health. The Respondent states that he rented out the second house before his marriage to Petitioner.

[36] Respondent rejects Petitioner’s claim that the borrowed Seychelles rupees 65,000.00/- from Barclays bank went towards the cost of the renovation of the second house on Property PR2754 in July, 2007. According to Respondent Petitioner took out the loan to buy a container to ship a car from abroad she had received as a gift from someone; although exhibit P4 notes house extension as the reason. Respondent co-signed for the Seychelles rupees 65000.00/- loan out of the goodness of his heart and for his two children; and that he stresses that he did not receive any part of the loan. Respondent, therefore, avers that Petitioner did not contribute financially towards the renovation of the second house, nor was she involved in the decision to renovate the house. According to Respondent Petitioner never visited the building site, which was an approximate distance of 100 metres away.

[37] Respondent explains that he decided to renovate the second house with the aim of making more money on the property. Respondent borrowed a loan of Seychelles rupees 200,000.00/- from Barclays Bank on 14 June, 2007, (exhibit R14), as well as he received financial support from his father, his sister Isabelle Gardette and his brother France Felice Etheve. Renovation works started after 12 July, 2007, and the mason who undertook the renovation was Mr. Kenneth Cadence.

[38] The third two bedroom house was built in 1994 by Regis Uranie; it was built after Respondent got married to Petitioner. It is conceded by Petitioner that she was not involved in any way in the construction of the third house.

[39] Respondent explains that it was his mother and father who provided for Petitioner while they were living with them until they moved into the third house in 1994. When they moved into the third house Respondent paid for the utility bills and food until his separation from the Petitioner in 2009. Respondent states that he cooked twice a day, prepared tea for the two children in the morning; he also states that he provided the two children with all their necessities; Respondent made breakfast and bathed the two children. When his children were sick both him and Petitioner took the children to the doctor.

[40] Petitioner did not work until their two children started Primary school, according to him either Primary 3 or 4. Petitioner worked for 8 hours from 9a.m. to 5p.m. and that when she would come home the two children were fed and bathed.

[41] Respondent emphasises that he did not conduct any tourist business other than invite three friends over when the houses were vacant and he states that he never had any licence to rent a self-catering business. Respondent has a licence for fisherman (exhibit R7) and a net fishing ("sener") licence (exhibit R8).

[42] Respondent states that his matrimonial relationship with Petitioner had not been good since 2003. To note that the divorce petition supports that fact that Petitioner had not cohabited with Respondent since 2003, it states that she was living under the same roof as Respondent since she did not have anywhere else to go.

[43] Respondent makes the following points in cross examination. Petitioner left her job after her employer SACOS had informed her that they will transfer her to Praslin but she had to stay on Mahe for another five months.

[44] Respondent cooked twice a day, prepared tea for the two children in the morning; he also states that he provided the two children with all their necessities; Respondent made breakfast and bathed the two children. Petitioner helped clean the house.

[45] On cross examination it was put to Respondent that when the two children started primary school the Petitioner worked for his two sisters, Isabelle Gardette but nee Etheve and Merlyn Etheve and that she was employed until 30 October, 2010, and earned a salary of Seychelles rupees 3500.00/- per month. Respondent says that he was only aware of the employment and not the salary so he does not know what Petitioner did with the money. Respondent insisted that Petitioner did not make any financial contributions towards the house expenses.

[46] Respondent agrees Petitioner was receiving Seychelles rupees 5500.00/-, paid directly into her account 6 to 7 years before their separation in 2009. He confirms that she is still receiving that allowance. He still gives his two children money when they come to Praslin and he tops up their mobiles every Friday. He adds though that he did not know what Petitioner did with the allowance and he then explains that he still gave her the Seychelles rupees 5500.00/- even if there had been a breakdown in their relationship since 2003. Respondent states that he purchased a second hand car Subaru J10 for Petitioner worth Seychelles rupees 67000.00/- in 2002 with the hope that their relationship will get better.

[47] From 1993 to July 2009 Petitioner did not contribute towards the three houses; the construction, maintenance and renovation. He also states that he had Seychelles rupees 100,000.00/- of his own savings that went towards financing the construction of the first house.

[48] Petitioner made him stopped playing music so they can spend the evenings together, he says that he stopped laying fishing traps because he was tired but he continued with the fish nets and the cocodemer business. Respondent denies that he was an alcoholic and was violent. He categorically denies that he stopped playing music, fishing, and stayed at home while Petitioner looked after the two children and the business. He further explains that his cocodemer business started after getting married to Petitioner and he started his handicraft work before he got married and he continued during his marriage. He also explains that it was when he stopped the fish trap business that he started the cocodemer business; he got 25 cocodemer per day from PDF and 40 per month from Curieuse and he sold the nuts for Seychelles rupees 100 per kilo. Each cocodemer weighed 5 kilos and he earned Seychelles rupees 500. Respondent started the business after his marriage to Petitioner and he adds that only the two children would help him while Petitioner would sit under the veranda cleaning her nails.

[49] Respondent was not married to Petitioner when the duplex house was built. The duplex house was the first house.

[50] Respondent states that since he rented out the houses on a long term basis with the Ministry of Education he does not see how Petitioner did all the greetings, clean the houses, run the business and look after the family. He claims that he only rented out the houses to his friends from overseas when the two houses were unoccupied.

[51] Respondent paid insurance to SACOS for the fourth house on Property PR2757 for a long time but he stopped paying because the house was not his. The Respondent denies that he was the owner and is still the owner of the house and that he had any interest in the house; he states that Jeanine Hoareau is renting out the house and Neville occupies the house. He denies that him and Petitioner repaired and renovated the house after the tsunami.

[52] Respondent adds that he co-signed the loan with the hope that Petitioner will get back with him.

[53] Respondent has got evidence that Petitioner sent money to Eric Morison and that it was only later that he discovered that she was in fact sending money from the Seychelles rupees 65,000.00/- loan that he co-signed with her.

[54] On re-examination he avers that the second house built by Mr. Chrysostomes Victor was completed in 1992 and the other rooms were added after 1992. There are now a total of four bedrooms. Respondent started renting out eight years before he married Petitioner and the duplex house was rented by two Nigerians gentlemen. Isabelle and Felice helped him pay off the loan of Seychelles rupees 200,000.00/-; Seychelles rupees 90, 000.00/- and Seychelles rupees 50, 000.00/- were transferred in his account (exhibit R15). Respondent avers that it was his two siblings who helped him and not Petitioner.

[55] Respondent reiterates that he gave the Petitioner the Seychelles rupees 5500.00/- with the hope that their relationship will improve. Respondent states that he was not aware that there was another man involved when he co-signed the loan in 2006.

[56] The evidence of Stanley Valentin. On examination, Stanley Valentin confirms that his confirmed profession is licensed quantity surveyor and building services engineer. He has been practising since 2006 and has been working privately for seven years. Stanley Valentin confirms that he had previously testified in court and has provided property evaluations for such cases.

[57] Stanley Valentin was instructed by Respondent to evaluate all properties on Property PR2754 of 1469 square metres at Anse Kerlan, Grand Anse Praslin. He was not instructed by Respondent to evaluate Property PR2757. He produces the Property evaluation report dated 12 August, 2013, as exhibit R16 and the breakdown of the evaluation referred to as the "quantitative analysis" or to what is technically known as an ″analytical analysis″ as exhibit R17. An "analytical analysis", as explains by Stanley Valentin, provides a closer estimate of the value of a property than if one were to use "square metre or unit base methods". The process of his evaluation involved taking all the measurements, the use of any data required including visual data and also using survey documents.

[58] Stanley Valentin used the identical estimate method on the properties on Property PR2754; which he explains means "break[ing] the house into substructure, superstructure meaning walls, roofing and ceiling" (Proceedings of Tuesday 16 December, 2014, at 9 a.m.). He explains on examination that in his evaluation "in the cases of sites, usually we take the walls; because where you got walls technically you should have a foundation. So, use a wall to get foundations, I have break it down from excavations…” (Proceedings of Tuesday 16 December, 2014, at 9 a.m.). He further his explanation by saying that he has “taken excavations, fumigations, concreting, super structure in terms of frame, frame meaning all beams, columns, lintols-…” (Proceedings of Tuesday 16 December, 2014, at 9 a.m.). Stanley Valentin continues explaining that he also used ─

"… openings, meaning doors, windows … finishes meaning screed, tiling if there is any. So, fittings, kitchen cabinets, services, disposal system- but then usually there are two approaches, you can approach the building as it is now. Let say the state is now, or I can take the building as new. When I push my evaluation I take it as new. That is much easier for me to work on and apportion to the quantities, I have placed the rates, which is market rates. Then I reach the cost, summarised it into the sum, total sum and then from thereon if there is any additional value of the building, okay ecstatic, lets say in cases where by we used TNJ varnish and so on or if there is any deficiency to that building, if the paintings gone off or any problems with the roofing, then I either add value or devalue it, depending on the circumstances on the site. So, then I reach the actual market value …". Proceedings of Tuesday 16 December, 2014, at 9 a.m.).

[59] Dwelling House number 1. Dwelling house number 1, measured at 222 square metres, is the bigger house of the three houses. It is valued at Seychelles rupees 2,351,735.77.00/- using a rate less than Seychelles rupees 13,000.00/- per square metres (ref to House number 2 in exhibit P5, Cecile Bastille’s report which is valued at Seychelles rupees 4,128,000.00/- using a rate of Seychelles rupees 18,736.00/- per square metres). To be noted Stanley Valentin states that the average construction cost per square metres on Praslin is in the region of Seychelles rupees 12,000.00/- to Seychelles rupees 13,000.00/- per square metres. Stanley Valentin opines that considering the rates, description and built of the house the value estimated by Cecile Bastille is too high. In his opinion the total value was also affected by the fact that the roof is leaking and tiling (exhibit R16, pg.5 for the photographs).

[60] The duplex house; House number 2. The duplex house, measured at 160 square metres, is valued at Seychelles rupees 1,722,661.48/- and it is to be noted that the same method used to value House number 1 was used with House number 2 (exhibit R16). In exhibit P5 it is referred to as the duplex house valued at Seychelles rupees 2,600,000.00/- and a rate of Seychelles rupees 15,950.00/- per square metre was used. Stanley Valentin explains the different deficiencies with the house which impacted on the value such as it is of age, wear and tear, bad ceiling, no proper kitchen cabinet, and uneven roofing (exhibit R15 and exhibit R16, pg.5 for the photographs).

[61] Dwelling House number 3 is. The house, measured at 93 square metres, is valued at Seychelles rupees 1,381,131.07/-; the same method used to value House number 1 and House number 2 was used. The deficiencies taken into consideration were uneven roofing, discolouration in the ceiling, old cabinet, and damaged tiles (exhibit R16, pg.6 for the photographs). The house which is House number 1 in P5 is valued at Seychelles rupees 1, 498,000.00/-.

[62] Property PR2754. Stanley Valentin confirms that he valued Property PR2754 without its three houses at Seychelles rupees 1, 901,746.00/-. To note that Cecile Bastille valued Property PR2754 at Seychelles rupees 2, 2,500,000.00/- (exhibit P5). He had factored in the "basic square meter in the area, which is well known at the market" (Proceedings of Tuesday 16 December, 2014, at 9 a.m.), the valuated and the "devaluable" elements. He explains that factors are added or deducted and based on experience and condition of the site “the apportion is given to valuated aspect or devaluable aspect” (Proceedings Tuesday 16 December, 2014, at 9 a.m.). Seven valuated aspects of the area were factored in such as location; in the case of Property PR2754 it is close to Lemuria hotel and the airport. Other factors considered were the view, shape/topography, peace, plants, and security. He then explains that the one "devaluable" aspect was the fact that there is no more space to build on Property PR2754.

[63] The total value of Property PR2754 and the building situated thereon is Seychelles rupees 7, 357,274.62/-; the total value of the three houses is Seychelles 5,455,528.1/- and the land is 1,901,746.

[64] On cross examination Stanley Valentin confirms that he grew up on Praslin and he did not know the Respondent.

[65] Stanley Valentin used ″quantitative analysis″/″analytical estimate″ as a method of valuing the houses. He opines that market value means looking at the real value of constructing that house at that point in time. In the present case his analysis is based on the real value of constructing the houses in August, 2013.

[66] When cross examined with regards to the current value of rupees against the dollar, Stanley Valentin says that if inflated to 14 per cent the total value of Property PR2754 and the houses standing thereon will amount to Seychelles rupees 8, 387,293.00/-. It is to be noted that there is a lack of clarity as to where learned counsel got the value of 14 per cent.

[67] With regards to comparatively valuing buildings and land Stanley Valentin states that he did not use such method in his evaluation. He opines that his method of evaluation of land does give a pricing of the land on the market.

[68] On re-examination Stanley Valentin states that he cannot confirm to the court if there was a devaluation of 14 per cent in Seychelles Rupees.

[69] Stanley Valentin confirms that the comparative method is only one method of evaluating properties and that as a quantity surveyor the ″quantitative analysis″ using ″analytical estimate″ is more accurate than comparing data.

[70] The evidence of Maryline Etheve. On examination Marilyn Etheve confirms that she resides at Pointe Kabri on Praslin, she is Respondent’s sister and was Petitioner’s sister in law. Marilyn Etheve states that Respondent has only one leg and his other leg is shorter than normal. Marilyn Etheve avers that Respondent’s handicap has never stopped him from working hard.

[71] Respondent does different jobs; he is a fisherman and he also did art and craft with their father, he can do carpentry, and he plays music. Respondent used to work at the PDF Praslin Development Fund.

[72] Petitioner did not work while married to Respondent and only started working temporarily when her two children started school. Petitioner worked for her from March 2009 and left in October 2010. Petitioner received a monthly salary of Seychelles rupees 3500.00/-. To note that Petitioner worked for Respondent and Marilyn Etheve’s sister prior to working for Marilyn Etheve. She does not know for how many years Petitioner had worked for their sister prior to working for her.
[73] Respondent owns Property PR2754 with its three houses; she explains that all three siblings agreed that Respondent will only have their mother’s share and that their father’s share will be subsequently divided among themselves.
[74] The duplex house was built first in 1985; at that time the land belonged to their mother. Respondent had help from their mother and father and he was authorised to build the house by their mother. She knew about the year the house was built because her own house was built in 1983 by Raza Victor, the same mason who built Respondent’s house. She confirms that Respondent undertook all the carpentry, plumbing and tiling works on his house. Upon completion of the duplex house in 1985 Respondent rented out the property to DCA, these are the people who used to work at the control tower at the new Praslin airport.

[75] The second house was built in 1992 by Pierre. Respondent did all the carpentry work. After its construction Respondent rented the house to a nurse called Marylise. Respondent was living with their father and mother during the construction of both houses.
[76] While the third house was under construction in 1994 Respondent and Petitioner resides at Respondent’s parents’ home. They moved in their new home after its completion in 1994.
[77] On cross examination Marilyn Etheve avers that the three houses were not rented out to tourists; she is only aware that Respondent kept the duplex house (the first house) for his overseas friends and they came on holiday in Seychelles every two or four years. She confirms that she knew of only two foreigners who stayed in the first house, Sandra and Chicco and other people stayed for a longer period of time. She was not aware of the Respondent collecting rent or conducting a business and as far as she was concerned she did not know anything about the Respondent’s finances and spending. She was only aware of the construction of the first two houses as she was at home with Respondent at that time.
[78] She was not aware of Respondent’s financial affairs with Petitioner nor was she aware of his earnings from his jobs as a fisherman, musician, carpentry, and cocodemer work. She only knew of a loan taken out by her brother and sister to help Respondent.
[79] The two children were well looked after by both Respondent and Petitioner, the former cooked and the latter looked after the house.
[80] Assessment of the respective contentions in light of section 20 (1) (g) of the Act, section 6 of the Courts Act, the pleadings, the evidence and submissions of counsel

[81] Petitioner currently resides at La Misere with the two children born of the marriage to Respondent. Petitioner states that she was granted custody of the two children and they both attend ″A Level″ School. They are supported on Seychelles rupees 5500.00/- in alimony from Respondent. It appears that Petitioner is not gainfully employed. Petitioner in her written submissions is requesting that a lump sum to the amount of Seychelles rupees 4,000,000.00/- would be sufficient to purchase a house on Mahe; she requires the lump sum rather than the monthly maintenance of Seychelles rupees 5500.00/-. To note that the court takes it that Petitioner has dropped her claim that she be granted ownership of the property.

[82] The court is guided by section 20 (1) (g) of the Act and its equitable powers under section 6 of the Courts Act. In Georges v Benoit [2016] SCA 6, the Seychelles Court of Appeal applied the following cases, which have considered the significance of section 20 (1) (g) of the Act ―

″[9]… in the case of Marie Andree Renaud v Gaetan Renaud 1998 SCAR 48 … this Court had occasion to pronounce itself on the import and sense of section 20(1)(g) thus:-

the powers of the Court pursuant to Section 20 (1) (g) of the Act must be read within the context of the totality of Section 20 of the Act which is designed for the grant of financial relief. Such relief may consist of a periodical payment (Section 20 (1) (d) or lump sum payment (Section 20 (1) (b) for the benefit of relevant child or property adjustment order (Section 20 (1) (e).
The purpose of the provisions of the subsections is to ensure that upon dissolution of the marriage, a party to a marriage is not put at an unfair disadvantage in relation to the other, by reason of the breakdown of the marriage and or as far as possible, to enable the party applying to maintain a fair and reasonable standard of living commensurate with or near the standard the parties have maintained before dissolution.″

and at paragraphs [26] and [27] of the judgment ―

″[26] In Renaud v Renaud SCA CA 48/1998 in respect of property disputes between the parties, following the divorce, the Court of Appeal held that ″the Supreme Court has jurisdiction pursuant to section 25(1)(c) of the Act, without prejudice to any other power of the court, on an application by a party to the marriage, to grant order as it thinks fit in relation to the property of a party to the marriage or the matrimonial home. In addition, the Court may even exercise its equitable powers to make any order in the interests of justice under section 6 of the Courts Act. Section 20 (1)(b) of the Matrimonial Causes Act, Cap 124, further gives the court power to consider lump sum payment to any one of the parties in divorce or separation proceedings.

[27] The description of matrimonial property is property owned by one or both parties who are married to one another, which upon the application of one of the spouses to a court, is subject to division between them. Both parties were working for most, if not the entire period of their marriage. All assets in issue were acquired during the course and subsistence of the marriage. The starting point must be that the assets are shared equally − See the case of M v M [2013] EWHC 2534 (Fam).″

[83] In Marie Charles v Jason Charles SCA 1/2003 the Seychelles Court of Appeal held that where the parties own a house jointly, they are presumed to have intended to own the house in equal shares.

[84] All the circumstances a court must take into account were discussed in Senville Esparon v Beryl Esparon SCA 12 of 1997. The Seychelles Court of Appeal decided that the following factors ought to be considered in dealing with applications of this kind.

″(a) Standard of living before the breakdown of the marriage.

(b) Age of the Parties;

(c) Duration of the Marriage;

(d) Physical and mental disability of either party;

(e) Contributions made by each party to the welfare of the family, including housework and care roles; and

(f) Any benefit which a party loses as a result of the divorce.″

″Ability and financial means would cover factors such as income, earning capacity, property, financial resources that each party has or is likely to have in the foreseeable future and the financial needs, and obligations each party has or is likely to have in the foreseeable future.″

[85] Further, in the case of Chetty (h) v Chetty (w) SCA11/2008, the Seychelles Court of Appeal opined that in deciding on the share that each party is entitled to, the court must not only look at the financial contributions of the parties but all the circumstances surrounding the acquisition, development and maintenance of the property as well as other indirect contributions which the family explicitly or impliedly intended during the subsistence of the marriage.

[86] In Hoareau (w) v Hoareau (h) SCA No. 37/2011, the Seychelles Court of Appeal opined that the words ″and having regards to all the circumstances of the case″ are important words ″because ultimately each case has to be decided on the basis of its own facts″.

[87] The above principles will direct the court’s approach to the resolution of the matter before it.

[88] It is common ground between Petitioner and Respondent that Respondent inherited Property PR2754 from his mother; that Property PR2754 is registered solely in the name of Respondent; that Property PR2754 was registered in the name of Respondent in or around July, 2007; that Property PR2757 is not registered in the name of Petitioner nor Respondent; and that the matrimonial home (third house) was built during the subsistence of the marriage between Petitioner and Respondent.

[89] Petitioner and Respondent contributed to looking after the children. Petitioner stopped working after the birth of her second child in April, 1996. She stayed home to look after the children. It appears that she started work after her two children started Primary school. The evidence is that Petitioner worked from 9a.m. to 5p.m.. When Petitioner would come home from work the children were fed and bathed.
[90] Petitioner and Respondent contributed to household requirements. Petitioner did all the housework of cleaning. Respondent did all the cooking. Petitioner paid Respondent an allowance of Seychelles rupees 5, 500.00/- monthly, being rent money from one of the duplex house. From that allowance she paid for her children’s clothes, and the court assumes that from her earnings she also added to the amount of the allowance made by Respondent, so as to buy certain extras, such as bed sheets, pillows, cloths for curtains. It is to be noted that although Respondent is physically challenged Petitioner conceded that he was the family’s breadwinner. He took care of the expenses; paid for the food, the utility bills and the phone bills. The position of Petitioner is that expenses towards the matrimonial house should come from Respondent and not from her since he was the husband so he should provide. Overall, Petitioner conceded that her contributions were very minimal as compared to Respondent.

[91] Respondent states that in 1985 the first house to be built on Property PR2794 was the duplex house. His mother gave him permission to build it. Petitioner states that Respondent converted the first house into a duplex house three years after the marriage. Petitioner agrees that she made no financial contributions whatsoever towards the construction works. Having given serious considerations to the contentions of Petitioner and Respondent, the court is satisfied that the first house was converted into a duplex house after the marriage of Petitioner and Respondent. It is to be noted that Respondent tendered application made, and an invoice witnessing application for ″new supply of electricity″ for a house at Anse Kerlan in 1985, but did not produce the approved Town and Country Planning Authority approved drawings for the duplex house. It is not clear to the court why the drawings were not produced. It is to be noted that with regards to the third house, Respondent tendered the Town and country Planning Authority approved drawings (exhibit R9) and the document witnessing application made for ″new supply of electricity″.

[92] Respondent states that the second house was built in 1992 before he met Petitioner. Petitioner claims that the second house was unfinished as there were no doors and windows. In light of the evidence of Petitioner it must be conceded that there was a second house on Property PR2754 prior to the marriage of Petitioner and Respondent. The court is satisfied that Petitioner was in no way involved in the construction of the second house financially or otherwise. The court is concerned with the major renovation and extension works that were carried out on the second house in 2007. Petitioner states that she contributed Seychelles rupees 65, 000.00/- towards renovation costs from a loan she acquired from Barclays Bank in November, 2006. She states in cross-examination that the money was spent on buying tiles and materials from Mahe. It is to be noted that there is no evidence to substantiate the allegation of Petitioner. Respondent disputes the contribution of and involvement of Petitioner in the renovation of the second house. The court has considered the evidence of Petitioner and Respondent and accepts the evidence of Respondent. The court is satisfied that Respondent on 14 June, 2007, borrowed a loan of Seychelles rupees 200, 000.00/- from Barclays Bank, as well as he received financial support from members of his family to renovate the second house. It is to be noted that the petition supports the fact that Petitioner had not cohabited with Respondent since 2003; and that she was living under the same roof as Respondent since she did not have anywhere else to go, therefore, the court can see no good reason why Petitioner will make a contribution to paying for the renovation to the sum of Seychelles rupees 65, 000.00/-. The renovation works started after July, 2007, and Petitioner filed for divorce in January, 2009.

[93] The matrimonial home (the third house), a two-bedroom house, was built in 1994 during the subsistence of the marriage between Petitioner and Respondent. Petitioner and Respondent agree that Petitioner was not involved in any way in the construction of the matrimonial home. Respondent financed the construction of the house himself. There is also evidence that Respondent undertook the carpentry and plumbing work.

[94] With regards to the fourth house on Property PR2757, it is to be noted that there is a lack of clarity about the ownership of the house. Petitioner states that Respondent built the fourth house, and, therefore, he owns it. Respondent seriously disputes that he owns the fourth house. He mentions during cross examination that he paid insurance for the fourth house for a long time but he stopped paying because the house is not his. It was not seriously disputed by Petitioner, through counsel, that Jeanine Hoareau owns the fourth house. It is to be noted that other than the allegation by Petitioner that Respondent built the fourth house, there is no other evidence to suggest that the fourth house belongs to Respondent. The court finds the evidence in support of the said allegation to be vague, scant and brief.

[95] It is conceded by Petitioner that Respondent did not conduct any tourist business other than invite three friends over when the houses were vacant. The court accepts Respondent’s evidence that he rented the duplex house and the second house mostly on a long term basis. Further, the court accepts the evidence of Petitioner that she must have assisted Respondent with the renting of the houses, however, it is to be noted that there is a lack of clarity about the extent of her contribution in view of the fact that she conceded that Respondent rented the duplex house and the first house mostly on a long term basis. It is to be noted that Petitioner is not asking for a share in the business. However, the decision is not restricted to any particular orders that Petitioner applied for. With regards to the business the court is satisfied that there is no evidence brought to the attention of the court to estimate the value of the business. In the absence of such evidence, it would be difficult to estimate what values if any, Respondent would be required to pay Petitioner from the business: see the Georges case, supra. It is noteworthy that one rent from the duplex house goes into the bank account of Petitioner on a monthly basis.

[96] With regards to the estimated market value of Property PR2754, the first house, the duplex house and the third house the court has considered the opinion of Cecile Bastille and Stanley Valentin. It is to be noted with regret that the opinion of Cecile Bastille contained in a two page report is of no assistance to the court. There is no evidence whatsoever to support the valuation of Cecile Bastille. With regards to the evidence of Stanley Valentin, Petitioner complains that the court should disregard it, in the main, on the ground that Stanley Valentin should have used the comparable method, which, according to Petitioner, is the best method. In the absence of evidence to substantiate this view, the court accepts the analysis of Stanley Valentin, which is supported by pictorial evidence. It is noteworthy that Petitioner did not seriously dispute the analysis of Stanley Valentin.

[97] Decision

[98] The Petitioner in her written submissions is requesting that a lump sum to the amount of Seychelles rupees 4, 000, 000.00/- would be sufficient for her to purchase a house on Mahé. The court is unable to make such an award.

[99] The court ―

Awards Petitioner 15 per cent of the sum of Seychelles rupees 7, 357, 274.62.00/- representing the total estimated market value of Property PR2754, the duplex house, the second house and the third house.

Orders Respondent to pay Petitioner the sum of Seychelles rupees 1, 103, 591.11/-.

[100] Respondent is given nine months from the date of the judgment within which to pay the sum of Seychelles rupees 1, 103, 591.11/- to Respondent. In the event that he fails to do so the properties, the subject of the award, shall be sold and the proceeds shared 15:85 between Petitioner and Respondent.

[101] Each party shall bear her or his costs of these proceedings.

Signed, dated and delivered at Ile du Port on 9 February 2017

F Robinson
Judge of the Supreme Court