John Ramsay Douglas Cartwright & Ors (Applicant) v Angelique Mirella Ross (Respondent), in the presence of The Ministry of Housing and Lands ( Co- Respondent)
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