Lunch Spot Co Ltd (Appellant) v Ramsaha & Co Ltd (Respondent)

SCR-2020 SCJ 166

Facts

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 31^st January 2019.

Issues

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.

We accordingly-

Order instead that the application be non-suited

Decision

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