Lunch Spot Co Ltd (Appellant) v Ramsaha & Co Ltd (Respondent)
SCR-2020 SCJ 166
It is an appeal from a decision of the Judge in Chambers granting the Respondent’s application for a Writ Habere Facias Possessionem against the appellant company and ordering it to vacate the commercial premises situated at No.10, La Chaussee Street, Port Louis by 31st January 2019.
In its application dated 4 June 2018 before the Judge in Chambers, the Respondent had averred that it is the owner of a commercial building which stands on a plot of land leased from the state. Pursuant to a written contract, the respondent had leased to the Appellant, part of the above premises of an extent of 1500 sq feet for a period of five years starting on 20 June 2015 and ending on 30 May 2020.
The basis of the application for the writ was that the Appellant was in breach of the lease agreement and at the time of the application, it was indebted to the Respondent in the sum Rs 360,000 representing 9 months’ rent due for the period September 2017 to May 2018 together with Attorney’s commission and VAT. It was further averred that the Appellant had in breach of the contract, carried out extensive structural alterations to the premises.
The Appellant inter alia contended that the Respondent no longer had any clear title since its lease agreement with the state, had expired on 30 June 2018. The Appellant did not deny withholding the rental payments but claimed that it had a “droit de retention” over the premises for having carried out extensive renovation works to the premises.
The Judge found that the Respondent had established ‘a clear and unambiguous title’ to the premises rented to the Appellant and that any dispute between the Respondent and the Ministry of Housing and Lands regarding the lease of the land on which stands the property, I of no concern to the Appellant.
In so far as the defence of a ‘droit de retention’ raised by the Appellant is concerned, the Judge found that the conditions required for this defence to succeed were not satisfied inasmuch as the tenant was not of good faith and had only come up with mere assertations without any documentary evidence to support is contentions.
The Appellant is now appealing against the judgment on four grounds.
Counsel for the Appellant reiterated the arguments before the trial Judge. The substantive point is that the Respondent had failed to establish a clear and unambiguous title. This in view of the fact that the lease agreement between the respondent and the state regarding the land on which stands the building, had expired on 30 June 2018 and there was no evidence that any new lease has been signed by the parties. Counsel also referred to the case which the Respondent had lodged against the Ministry of Housing and Lands before the Supreme Court in connection with its State lease.
Counsel for the Respondent has submitted that following the expiry of the initial lease, a new lease came into being by way of “tacite reconduction” pursuant to Article 1738 of The Civil Code, since the Ministry of Housing and Lands allowed the Respondent to remain in possession of the said plot of land. Further the state had made an irrevocable offer to the Respondent to enter into a new sixty-year lease and the latter had in turn opted to enter into the new lease. According to counsel, the Learned Judge was right to conclude that the Appellant did not have any locus to intervene into any dispute between the Respondent and the state.
Counsel further argued that a lessee of State Land has the right to evict an occupier and it was not necessary for the Respondent to put the State into cause as a party to the application for the writ habere facias possessionem inasmuch as the State would not have been any assistance in resolving the issues. Finally, counsel pointed out that the Respondent’s claims for outstanding rent was for the period September 2017 to May 2018 which period is well within the currency of its lease with the State.
It is clear that the first core issue in the appeal is whether the Judge was right in finding that the Respondent had a “clear and unambiguous title” to the property on which stands the commercial building leased to the appellant. It was indeed incumbent upon the Respondent (then applicant) to prove in the first place that it had a clear and unambiguous title to the subject property, before the Judge could further proceed to determine whether it was entitled to the writ.
According to the evidence, the Respondent had at the time of the hearing, not signed the new lease agreement because of a dispute regarding the rental amount.
A lessee has the necessary locus standi to apply for a writ habere facias possessionem provide he can establish his good title as a lessee.
Thus, in Rangloll V Nobin [1979 MR 94], the Judge in Chambers granted the application for a writ habere facias possessionem made by a lessee of State land against a trespasser who was in occupation of the land.
The judge referred to the following provisions of Article 1725 of The Code Civil which establishes the personal right of a lessee to sue any illegal occupier before a “Juge des referes”:
« Le bailleur n’est pas tenu de garantir le preneur du trouble que des tiers apportent par voies de fait a sa jouissance, sans pretendre d’ailleurs aucun droit sur la chose louee ; sauf au preneur a les poursuivre en son nom personnel »
He found support for his decision from the following extracts of Dalloz Repertoire Pratique, Vo Refere-
“Le louage d’immeubles donne lieu au refere a cause de l’urgence, dans des cas assez nombreux. Le preneur peut se pourvoir en refere…lorsque son bailleur retarde ou empeche indument son entree en possession.
Le juge des referes est competent pour ordonner les mesures urgentes qui ont pour but d’assurer la paisible jouissance du preneur ou de regler le mode de jouissance tel qu’il est prevu par le bail pourvu que les mesures ne fassent pas prejuidice au principal. »
As such in the present matter, it was incumbent upon the Respondent to establish in the first place that it had a clear and unambiguous right to the lease in its capacity as a lessee of the subject property which formed part of State land.
Since it fails to establish for the purpose of a writ habere facias possessionem, the required title to the subject property in view of the fact that the lease agreement with the state in respect of the land on which stands the building, had not yet been concluded at the time of the application.
The failure by the Respondent to come up with a “clear and unambiguous” title should normally be fatal to the application for a writ but there are compelling reasons which arise from the facts of the present case
Although the Learned Judge erred in holding that the Respondent had established a clear and unambiguous title entitling it to the writ habere facias possessionem, the best alternative and indeed proper course in the circumstances of the present case, would be to order a non-suit in lieu of the decision of the judge in Chambers granting the application so that in the eventuality of any fresh application for a writ by the Respondent such an application would be determined in presence of the Ministry. An outright dismissal of the appeal, in view of the nature of the evidence tending to establish the renewal of a valid lease agreement and the nature of the defence raised by the appellant, would result in an unjustified curtailing of the exercise of a lessor’s rights against what may be a potentially unlawful occupier.
Order instead that the application be non-suited
Although the Learned Judge erred in holding that the respondent had established a clear and unambiguous title entitling it to the writ habere facias possessionem, the best alternative and indeed proper course in the circumstances of the present case, would be to order a non-suit in lieu of the decision of the Judge in Chambers granting the application so that in the eventuality of any fresh application for a writ by the respondent such an application would be determined in presence of the Ministry. An outright dismissal of the appeal, in view of the nature of the evidence tending to establish the renewal of a valid lease agreement and the nature of the defence raised by the appellant, would result in an unjustified curtailing of the exercise of a lessor’s rights against what may be a potentially unlawful occupier. The Judges accordingly:
- Quash the decision of the Learned Judge granting the writ habere facias possessionem; and
- Order instead that the application be non-suited.
Barrister for Lunch Spot Co Ltd (Appellant): Mr Robin Appaya
Lunch Spot Co Ltd (Appellant) v Ramsaha & Co Ltd (Respondent)
2020 SCJ 194
This is an application, by way of motion, for an order granting a new trial in case SCR No. 115582 (5A/305/17) and directing a stay of execution of the judgment in that case.
According to the applicant’s affidavit in support of this application-
- He had, as an owner of race-horses and a member of the respondent, sought, “by letter dated 17 March 2017”, to participate “in the coming horse racing seasons/s”. His “participation was denied” by the respondent on 20 April 2017 and no reasons, nor any copy of the relevant minutes of proceedings, were ever given to him by the respondent;
- He applied for leave to apply for judicial review of the respondent’s decision and decision-making process (application bearing reference number SCR No. 115582 (5A/305/17); and
- He retained the services of Mrs Sookun-Teeluckdharry as Counsel for the said application. The latter arrived late at the hearing on 26 September 2018 and the application was set aside by the Supreme Court on the same day.
The applicant is now moving for an order granting a new trial, pursuant to rule 45(1)(a) and (c) of the Supreme Court Rules 2000, on the grounds inter alia of error by both the Registry of the Court and the Supreme Court as to the identity of his Counsel and “good arguability” of his application for judicial review which was based on illegality, breach of natural justice, unfairness, abuse of power, unreasonableness, breach of legitimate expectation and irrationality.
The application is being resisted by the respondent and co-respondents mainly on the ground that it does not fall within the ambit of rule 45(1) and that the respondent’s decision is not amenable to judicial review. Learned Counsel for the first co-respondent has in addition highlighted in his written submissions that there is no longer any live issue in the application for leave to apply for judicial review as ex facie the applicant’s own averments, the respondent’s decision was limited to the 2017 racing season.
It is well settled that this Court will only pronounce itself on “live issues” of practical value and is not concerned with “hypothetical, premature or academic questions” (see Planche v The PSC & Anor [1993 SCJ 128]. In Dahari (supra), the Supreme Court referred to the above principle as quoted in Planche but went on to highlight the distinction that is now drawn between hypothetical and academic questions (see De Smith’s Judicial Review (7th ed) at paragraph 18-042); a declaration may be given in judicial review proceedings where a hypothetical question requires to be answered for a real practical purpose “although there may not be an immediate situation on which the decision would have practical effect”, but the Court will not grant relief in the form of a declaration where the question is merely an academic one which “need not be answered for any visible practical purpose”. Reference was also made in Dahari, quoting from De Smith, para 18-054, to cases where an order would serve no practical purpose, for example, where a licence of which the validity is being challenged has expired, or the challenged activity has ceased, before the application is determined.
The issue now for our consideration is therefore whether the application in case SCR No. 115582 (5A/305/17) discloses a hypothetical question, in respect of which a declaration may be issued in the course of judicial review proceedings, or an academic one.
There is therefore no live issues, and it would serve no practical purpose for the court to entertain the application, in case SCR No. 115582 (5A/305/17) at this stage.
For the above reasons, we consider that granting the present application will not serve the ends of justice and we set it aside. With costs.
Attorney for the Mauritius Truf Club (Respondent) : Mrs Anju. K. Ghose
AH-KONG FOO KUNE P. (Applicant) V THE MAURITIUS TURF CLUB (Respondent), in the presence of The Registrar of Associations and The Gambling Regulatory Authority (Co-Respondents)
It is an application under article 439 of the Code Civil before the Honorable Judge In Chambers for an Order authorizing the Applicant to apply for the Division in Kind of four portions of land, with all that may depend therefrom or form part thereof, among the parties entitled thereto, and in case they cannot be divided, for an Order authorizing their sale by way of licitation.
The Applicant and Co-Respondent No.3 are respectively the appointed guardian and sub-guardian of the majeure en tutelle , Gisele Elie Liu Sing Chuen, who is one of their heirs entitled to apprehend the estate of late Paul Marcel Wong Mun Fong and late Sin Shee Ah You. The Respondent is the other heir entitled to the same estate. According to the Applicant, the majeure en tutelle is no longer willing to remain in a state of indivision and it is in her best interests to proceed with a division in kind. The Respondent who is the brother of the majeure en tutelle, is resisting the application on the ground that his sister cannot express her civic rights, and because the guardian had petitioned for the division in kind in bad faith and out of mischief. He avers that this court should take into account the conduct of the guardian and sub-guardian.
The respondent referred to an emphyteotique lease agreement entered into by the guardian on the 1st May 2007 and averred that the guardian and sub-guardian are not acting in the best interest of the majeure en tutelle so that they should be allowed to proceed with any division in kind. He maintained that an application will be made for the revocation of the guardian and sub-guardian although at that time of the hearing this was not done. The Applicant avers in turn that co-heirs should not remain in a state of indivision as they are each entitled to their share of the succession and that his mother therefore had the right to ask for the division in kind. As her guardian, he was also legally entitled to make the application on her behalf.
Article 397 of the Code Civil provides that the Judge in Chambers exercises ‘une surveillance generale sur les administrations legales et les tutelles. S’il l’estime necessaire, il fait appel au service du Ministere Public..’ Under article 413, ‘Le juge en Chambre peut, en considerant les aptitudes des interesses et la consistance du patrimoine a administrer, decider que la tutelle sera divisee entre un tuteur a la personne et un tuteur aux biens’ There is nothing in this application which indicates that the guardianship was so divided by the Judge in Chambers at the time of appointment, as Mr Bhanji Soni for the respondent seems to suggest.
Under article 418, the functions of the sub-guardian are to ‘surveiller la gestion tutelaire et a representer le mineur lorsque ses interest seront en opposition avec ceux du tuteur’
Under article 422, the judge in chambers can decide ‘de soumettre la gestion tutelaire au coontrole du curateur aux bien vacants’.
Article 425 provides that ‘ le tuteur prendra soin de la personne du mineur et la representera dans tous les actes civils,… il administrera ses biens en bon pere de famille et repondra des dommages et interest qui pourraient resulted d’une mauvaise gestion…’
Under article 429 ‘ le tuteur accomplit seul, comme representant du mineur, tous les actes d’aministration…..’, whereas under article 431, ‘le tuteur ne peut, sans y etre autorise par le Judge en Chambre, faire des actes de disposition au nom du mineur’.
Finally, article 439 of the Code provides that ‘ le tuteur ne peut, sans l’autorisation du Judge en Chambre, introduire une demande en partage dirigee contre le mineur, mais il pourra, sans cette autorisation, repondre a une demande en partage dirigee contre le mineur’. The parties do not dispute that these provisions apply to a majeure en tutelle under article 503 of the Code Civil.
In this case therefore, the Order appointing the guardian and sub-guardian has conferred on them the gestion tutelaire of the majeure en tutelle, which gestion tutelaire is further subject to the control of the curator of Vacant Estated, since there has been no revocation of the guardian’s or sub-guardian’s appointment.
It is also trite law under article 812 of the Code Civil that ‘nul ne peut etre constraint a demeurer dans l’indivision, et le partage peut etre toujour provoque….’
Moreover, the Curator of Vacant Estates and the Ministere Public (co- respondent nos 1 and 2) have both filed favorable conclusions.
Decision of the Court
The Court authorized the applicant to apply for the division in kind of the four potions of land in lite, with all that may depend therefrom or form part thereof, among the parties entitled thereto.
Attorney for David Christian Wong Mun Fong Liu Sing Chuen (Applicant): Mrs Anju.k.Ghose
David Christian Wong Mun Fong Liu Sing Chuen (Applicant) v Louis Francis Chotway Wong Min Fong (Respondent), in the presence of 1. The Curator of Vacant Estates, 2. The Ministere Public, 3. Ah Shin Liu Sing Chuen acting in the capacity of sub-guardian to the ‘majeure en tutelle’ Gisele Elie Liu Sing Chuen ( Co-Respondents)
2017 SCJ 421
This is an application praying that the respondents be found in contempt of an order in the nature of an interim injunction granted on the 26 of July 2013 by Lam Shang Leen J.
The respondents have raised a preliminary objection that the person, Ms. Shenaz Bibi Rughoonauth, who has solemnly affirmed the initial affidavit dated 26 August 2013, had at the material time, no authority to do so.
The respondents’ preliminary objection, has as grounds the following:
- The authorization to represent applicant no.2 was not deposited with a notary pursuant to section 3 of the deposit of powers of Attorney Act 1928.
- The authorization to represent applicant no.2 does not have retrospective effect.
The respondents contend that as a result, the application cannot be entertained as the applicants were not properly represented at the time the application was made.
Now, sections 2 and 3 of the Deposit of Powers of Attorney act 1928 (“the Act”) are relevant and are as follows:
2. Deposit of power of attorney
(1) Where any person who has left or leaves Mauritius has appointed or appoints an attorney or agent in Mauritius to represent him in any capacity in any proceedings before a court, by an authentic deed, or by a deed under private signatures, the notary who has drawn up such deed or who received or receives the deposit of such power of attorney, or the holder of any such power of attorney under private signatures, where it has not been deposited with a notary, shall within 15 days from the date of such power of attorney or of the date of the deposit thereof with the notary file in the Registry, where the same may be inspected on payment of the fee provided in the Legal Fees and Costs Rules 1990, an extract from such power of attorney relative to such powers of agency and to the names of such agents.
(2) no party to any proceedings before a court shall pretend ignorance of any such power of attorney so deposited in the Registry.
3. foreign deed of appointment
Where the power of attorney, whether authentic or under private signatures, appointing an attorney or agent has been or is drawn up outside Mauritius, the attorney or agent appointed shall deposit the same with a notary in Mauritius before any use is made of it and section 2 shall apply to it.
For representation in court proceedings, there should be written mandate and not a verbal one, especially when the person is away from Mauritius. Indeed section 3 of the act provides for a power of attorney (whether authentic or under private signatures) to be deposited with a notary in Mauritius “before any use is made of it”.
The case of Group Five International Ltd/STRABAG International GmbH Consortium v Independent Review Panel & Ors [2014 SCJ 1] can be referred to as it is pertinent to the facts and issues under consideration to answer the question: whether the affidavit of Mr Mahe of 07 October 2013 “cure” the omission and have a retrospective effect?
This question was considered in Group Five case by the appellate court and it concluded in the negative. The salient parts at page 7 of the judgment are reproduced:
The power of attorney is a contract which can only take effect as from the day it is given. It is only as from the time that the mandat is given that the designated mandataire has the authority to step in and represent the mandataire.
A power of attorney cannot have a retrospective effect. The “mandate” must already have been given to the “mandataire” prior to the latter taking any iniative on behalf of the “mandant”.
It cannot be given ex post facto by a mandataire to his purported representative after the latter has already undertaken certain steps allegedly on behalf of the mandant, in order to validate such acts.
There are several cases whereby it has been decided by our courts that failure to comply with the Act is fatal and that applications cannot be entertained if there is not the proper authority and which has not been duly deposited in compliance with the Act.
Attorney for Mayer A ( Respondents) : Mrs Anju.K.Ghose
MAHE P L J & ORS (Applicants) v MAYER A & ORS (Respondents)
2016 SCJ 283
It is not disputed that by an agreement dated 25 June 2004 Plaintiff joined the Defendant bank as “Supervisor, Retail Banking” for a determinate duration of 6 years, with effect from 2 August 2004 at a starting salary of Rs 20,000 monthly plus a monthly travelling allowance of Rs 3,000. She was transferred in December 2004 from Curepipe Branch where she was posted upon joining as “Assistant Branch Manager”, i.e as Supervisor assisting the Branch Manager, to Quatre Bornes as Branch Manager. In 2006 she was retransferred to the Curepipe Branch as Branch Manager.
The Plaintiff avers that while she has at all times performed her duties with the utmost diligence, skill and dedication, she was persistently singled out and targeted by the General Manager of the defendant bank, Mr Pavaday Thondrayen, who would treat her unfairly and/or abusively. She sets out her complaints as follows:
Plaintiff therefore prays for a judgment ordering the Defendant to pay the sum of Rs 1,662,957.50 as damages for the prejudice suffered by her. She explained in Court that her rights had not been respected by the bank as allegations were made against her and she was dismissed summarily without being given an opportunity to reply.
The Defendant bank had denied the Plaintiff’s allegations and averment that there has been a breach of contract on its part. It pleaded that during her tenure of office the Plaintiff has been issued with several memos/letters as referred to by the Plaintiff above. It is averred that the Plaintiff had created a situation, which left the defendant with no alternative than to terminate her contract of employment in accordance with the terms and conditions specified therein; Plaintiff was accordingly paid the sum of Rs 278,400 which was accepted by the Plaintiff albeit under protest, such that ex facie the pleadings no breach of contract is disclosed. The bank reiterates that the Plaintiff has no cause of action in as much as the Plaintiff’s contract of employment was for a duree determinee and was governed by the conditions specified in her contract of employment to which she was bound.
Mr Chetty SC then referred to the case of Perrine V Duke Haberdashers Co. Ltd [1986 MR 127] [1986 SCJ 206] to submit that the Plaintiff having accepted the said sum cannot be allowed to have another bite at the cherry and is not therefore entitled to also claim damages for breach of contract in the present case.
In reply, Mr Bhanji Soni appearing for the Plaintiff submitted that irrespective of the subsection of Clause 13 under which the bank chose to terminate the contract of employment of the Plaintiff, the Plaintiff was in law entitled to decide whether to bring an action before the Industrial Court or before the Civil Court.
The issue was whether the Plaintiff, having accepted “under protest” an amount equivalent to and representing the punitive rate of compensation for unjustified dismissal under the Labour Act, is entitled to her claim for damages before this forum on the same set of facts.
It is first relevant to know what is the legal significance of the words “under protest” without more in respect of the plaintiff’s acceptance, as the evidence has revealed.
In re Massey, [8 Beav 460],  where a testator died indebted to the petitioner, in the context of a petition for taxation, the Court in England stated
“It is said, that the money was received by the petitioner, and the receipt given “under protest”. These words are often used on these occasions, but they have no distinct technical meaning, unless accompanied with a statement of circumstances, shewing that they were used by way of notice or protest, reserving to the party, by reason of such circumstances, a right to a taxation notwithstanding such payment. The words have no distinct meaning by themselves, and amount to nothing, unless explained by the proceedings and circumstances. [Emphasis added].
“There is no magic to the term “under protest”. This was stated in Castano and Gabriel, 302 NYS 2d 943 (1969). In Waara V Kane 269 N.W.2d 395 (1978) before Supreme Court of South Dakota, I find the following of interest:
“The term “under protest” contains no inherent magic. It does not per se establish compulsion or force. It may simply imply that the act is done contrary to the desire of the party indicating his protest, and nothing more.”
Therefore, unless acceptance under protest is statutorily provided, accepting a payment “under protest” without more only qualifies the acceptance by showing that the person is reluctant to accept but has nevertheless accepted. Acceptance of a payment under protest by itself has no legal significance unless the protest is clearly defined to show the circumstances under which the payment is being accepted. This would then also give an opportunity to the person making the payment to decide whether to accept whatever reservation or condition is accompanying the acceptance or, where appropriate, whether to withdraw the payment.
In the present case the Plaintiff simply accepted “under protest” without more. She therefore must be taken to have accepted a claim, which she would have obtained before the Industrial Court as she admitted that the amount she received represented pay at six times the normal rate.
Having accepted the full compensation under the Labour Act the plaintiff cannot also claim redress under the Code Napoleon for breach of contract in respect of the same set of facts. I here refer to the pronouncement in the cases of Perrine v Duke Haberdashers Co. Ltd (supra) and Bisonauth Premchandra & Anor v The Sugar Insurance Fund Board [2013 SCJ 252].
Attorney for the Mauritius Post and Cooperative Bank Ltd (Respondent): Mrs Anju.K.Ghose
Mohinee Adnath (Plaintiff) v Mauritius Post and Cooperative Bank Ltd (Defendant)
2013 SCJ 433 SN 1416/2011
This is an application for a writ habere facias possessionem to issue against the respondent directing and ordering her to quit, leave and vacate the servants’ quarters found on a portion of land of 17.25 perches situated at Pointe aux Sables (“the property in lite”).
Ex facie the affidavits sworn by Applicant No.4 on behalf of all the Applicants, it is averred that they are the lessees of the property in lite on which stand servants’ quarters. In on or about the year 2003, the applicants granted to the respondent and her late husband a license and authority to occupy the servants’ quarters as they have nowhere else to go. The Applicants have since quite some time through applicant No.4 verbally revoked the license and authority granted to the respondent. By notice dated30 September 2010, the Respondent was formally notified of the revocation of the license and authority. However, the Respondent has failed to vacate the servants’ quarters.
The Respondent, for her part, avers that she has a good and bona fide defence to the present application inasmuch as she has a droit de retention et de superficie on the property in lite. She further avers that the applicants have been guilty of undue delay in lodging the present application.
In applications of the present type, it is first incumbent on the Applicants to establish a clear and unambiguous title to the property they are claiming.
It is well settled that a lessee of State land has the required locus to evict an occupier of the land settled that a lessee of State land has the required locus to evict an occupier of the land (Rangloll v Nobin [1979 MR 94). In these circumstances, I have no difficulty in finding that the Applicants have established a clear and unambiguous title to the property in lite.
The issue which must now be determined is whether the Respondent has adduced sufficient evidence to show that she has a serious and bona fide defence to put forward. In this respect, she has averred that she has a droit de retention et de superficie on the property in lite and that the applicants have been guilty of undue delay in lodging the present application.
With regard to the Respondent’s alleged droit de retention et de superficie on the property in lite, her case, as disclosed in her affidavits and annexed documents, in as follows:- the son of Applicant No.4, who was a friend of the Respondent’s late husband proposed to the Respondent and her late husband to occupy the property in lite as his family needed someone to take care of it. The property was in a neglected, dilapidated and uninhabitable state and was a refuge for drug addicts and alcoholics.
With the consent and au vu et au su of applicant No. 4, the Respondent and her late husband have cleared the property in lite with their own funds, constructed a toilet and bathroom, repaired the corrugated iron sheets and went to stay there in or about 2003.
All the works, constructions, renovations and extensions were done with the approval and au vu et au su of Applicant No.4 and were financed solely by the Respondent and her late husband.
At this juncture, it is useful and appropriate to refer to the case of Bonarien V Loloth [1998 MR 26] in which the Appellate Court composed of 3 Judges, reviewed the law and the authorities applicable to a “droit de retention” and a “droit de superficie”.
The Appellate Court found that, in the light of existing authorities, for a droit de retention to exist, 4 conditions must be met, namely:-
- The claimant must have the detention of the property;
- There must be a debt of which the claimant is entitled to demand payment;
- The claimant must be of good faith; and
- There must be a relationship between the debt and the property detained.
The court also held that it was settled law that a person who acquires a droit de retention is entitled “de demeurer en possession that que le propriétaire ne l’aura pas rembourse du montant des travaux, ou le lui aura pas regle la plus-value.’’
Moreover, the Appellate Court held that since the Appellant had built the house au et au su of the respondent and with his consent, the Appellant had acquired a droit de superficie temporaire over the land of the Respondent at most as long as the construction which she had built lasted. Such a droit de superficie had been acquired by titre, namely the verbal agreement entered into by the Appellant and the Respondent whereby the Appellant was allowed to build on the land of the Respondent.
The Respondent has adduced sufficient affidavit and documentary evidence to substantiate her claim that she has a droit de retention et de superficie in respect of the alleged constructions, renovations and extensions carried out by her and her late husband on the property in lite. I, therefore, hold that the Respondent has raised serious issues which cannot be resolved on conflicting affidavit evidence. Whether the Respondent does in fact have a droit de retention et de superficie, and if she has such a droit de retention, the amount of compensation payable, and whether she is of good faith are serious issues which have to be referred to, and determined by, the competent Court.
Turning to the additional ground of delay in lodging the present application, it was held in Pavadi V Choyta [2008 SCJ 243] that in an application for a writ habere facias possessionem, delay per se is not fatal to the issue of the writ but is one of the factors to be considered by the judge.
The respondent has raised a serious and bona fide defence to the present application. As was held in Pavadi v Choyta(above), where there are serious factual and legal issues to be determined ex facie the affidavit evidence, these can only be determined by the competent Court after a proper hearing on issues properly joined through a normal course of pleadings. I, accordingly, set aside the present application and I refer the parties to the competent Court.
Attorney for Angelique Mirella Ross (Respondent): Mrs Anju. K. Ghose
Barrister for Angelique Mirella Ross (Respondent): Mr. Robin Appaya