Loloth Louis Roger v Mrs C.

Bonarien & anor

1995 SCJ 408

CHAMBERS
IN THE SUPREME COURT OF MAURITIUS

In the matter of:-

Louis Roger Loloth

Applicant
v.

Mrs C. Bonarien & anor

Respondents

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JUDGMENT

The applicant who is the undisputed lessee of a plot of State Land at Grand

Bay is applying for the issue of a Writ Habere Facias Possessionem for the eviction

of the two respondents. He claims that in or about 1990 he had allowed respondent

no. 1 and her children to stay in his house on the plot of State Land. Since January

1995 respondent no. 1 had started quarrelling with him. The latter has now brought

relatives including respondent no. 2 to stay with her in the house without the

applicant’s consent.

The stand of respondent no. 2 is that although she had stayed on the land

between 1984 and 1988 she had subsequently left the premises and moved to Mare

d’Australia - she consequently prays that she be put out of cause.

The stand of respondent no. 1 as expressed in her affidavit is as follows:-

 (I) in 1988 after respondent no. 2, who is her sister, had vacated the

premises, she was approached by the applicant to live in the wooden

house free of rent. She admits that she was allowed to stay in that

house;

(ii) in 1992 with the applicant’s knowledge and consent, she caused the

wooden building to be pulled down as it was in a dilapidated state and

she started to construct a concrete building of four rooms with her own

money and that of her husband;

(iii) she had also caused a plan to be drawn up to be submitted to the

District Council in her own name;

(iv) the applicant had even signified his consent that she could build the

house on the said land;

(v) her husband had personally spent Rs 25,000 on materials to build the

house.

Respondent duly produced (a) copy of a plan apparently drawn in August

1992 which bears the following mention “Proposed Residential Building for Miss

Claudette Azor c/o Roger Louis Lolotte, at Beerahee Lane, Grand Baie”; (b) a receipt

purportedly witnessing the purchase of building materials and payment of

Rs 15,000.
 The applicant, on the other hand, whilst admitting that the husband of

respondent no. 1 had built the house by providing his personal labour averred that this

was done with materials supplied by him.

I am of the view that the preponderance of evidence lends colour to the

version of respondent no. 1.

The question which remains to be decided concerns the respective rights of the

parties on the assumption that the respondent no. 1 had, with the consent of the

applicant, built a house on a land of which the applicant is the lessee (the land being a

State Land).

It will be observed here that whilst claiming that she has a “droit de retention”

and a “droit de superficie” over the building, respondent no. 1 did not attempt to

ascribe any figure on the value of the building so that even if compensation was due it

was simply not formulated.

Article 555 of the Code Napoléon provides that:

“Lorsque les plantations, constructions et ouvrages ont été faits par un

tiers et avec des matériaux appartenant à ce dernier, le propriétaire

du fonds a le droit, sous réserve des dispositions de l’alinéa 4, soit

d’en conserver la propriété, soit d’obliger le tiers à les enlever.

 Si le propriétaire du fonds exige la suppression des constructions,

plantations et ouvrages, elle est exécutée aux frais du tiers, sans

aucune indemnité pour lui; le tiers peut, en outre, être condamné à des

dommages-intérêts pour le préjudice éventuellement subi par le

propriétaire du fonds.

Si le propriétaire du fonds préfère conserver la propriété des

constructions, plantations et ouvrages, il doit, à son choix rembourser

au tiers, soit une somme égale à celle dont le fonds a augmenté de

valeur, soit le coût des matériaux et le prix de la main-d’oeuvre

estimés à la date du remboursement, compte tenu de l’état dans lequel

se trouvent les dites constructions, plantations et ouvrages.

Si les plantations, constructions et ouvrages ont été faits par un tiers

évincé qui n’aurait pas été condamné, en raison de sa bonne foi, à la

restitution des fruits, le propriétaire ne pourra exiger la suppression

des dits ouvrages, constructions et plantations, mais il aura le choix de

rembourser au tiers l’une ou l’autre des sommes visées à l’alinéa

précédent.”

Although article 555 regulates the relation of a “propriétaire du fonds” with

that of a “tiers” who has built on land belonging to the former there is no juridical
hurdle that it should not be applicable to our present case where the applicant is not

the full legal owner of the land but is merely the lawful occupier in virtue of a lease.

By the operation of “alinéas” 3 and 4 the respondent no. 1, if successful,

could, at most, insist that the applicant reimburse her the increase in value of the real

property resulting from the erection of the building or the cost of the materials and

labour calculated at the time of the refund. This is something which the respondent

can claim after she has worked out the figures and should not be held out as a “sine

qua non” condition which must be complied with before she vacates the premises.

Also, the defence of “droit de superficie” though adumbrated was not seriously gone

into.

The writ will accordingly issue unless the respondent no. 1 vacates by the end

ofMarch 1996. Since respondent no. 2 has in her own admission already

left the house, the matter is set aside vis à vis her. Respondent no. 1 is to pay the

costs. I certify as to counsel.

Y.K.J. Yeung Sik Yuen

Senior Puisne Judge

4 December 1995
For Applicant:-

Mr Attorney M. Mardemootoo
Mr P.M. Sauzier, of Counsel

For Respondents:-

Mr Attorney S. Dawreeawoo
Mr R. Dawreeawoo, of Counsel