CHERRY BLOSSOM LTD v MATIKOLA N.

& ORS

2020 SCJ 2
Record No. 1360

IN THE SUPREME COURT OF MAURITIUS

(Court of Civil Appeal)

In the matter of:

Cherry Blossom Limited

Appellant

v/s

Nandkumar Matikola & Ors

Respondents

JUDGMENT

The present appeal concerns a plot of land of 4,770 square metres situated at Pailles
(“the land in lite”).

The appellant claimed to be the owner of the land in lite for having purchased same from
the succession of late Salehmohamed Ramtoola in 1989.

In 1996, the appellant lodged a Plaint with Summons against the respondents
complaining that the respondent had, without any right, title or capacity, entered upon the land
in lite on which they were erecting a concrete building. In 2012 the appellant further averred, in
an amended statement of claim, that despite pending proceedings the respondents have
continued with the construction of an additional floor. The appellant prayed the Court for a
judgment:

“(a) in the nature of a perpetual injunction restraining and prohibiting the

Defendants from entering on Plaintiff’s abovementioned land and from hindering
plaintiff in the peaceful enjoyment and occupation of the said land;
 2

(b) condemning and ordering all Defendants jointly and in solido to pay plaintiff
the sum of Rs 25,000,000 as damages; and

(c) ordering that all the constructions and structures standing on the said land
belong to Plaintiff without the need for plaintiff to compensate defendants for the
costs of same, or alternatively condemning and ordering Defendants jointly and
in solido to remove at their cost all constructions and structures existing on the
said land within a time to be fixed by the Court, and in case of default by the
Defendants to remove the said constructions within the said time-limit, allowing
Plaintiff at Plaintiff’s option to keep the buildings and structures without
compensation, or remove same and claim the cost of destruction and removal
from all Defendants jointly and in solido. WITH COSTS.”

In their plea, the respondents denied that the appellant was the owner of the land in lite.
They instead claimed to be the lawful owners thereof by virtue of a notarial deed of acquisition
duly registered and transcribed in Vol 1755 No. 90 in March 1987.

The respondents further averred that before the purchase of the land in lite by the
appellant, Mr Mohamed Yousouf Ramtoola and Mrs widow Salehmohamed Ramtoola (“The
Ramtoolas”) had entered an action asking them to vacate only a portion of about 20 perches of
land forming part of a larger plot of 3 Acres 54 perches which initially belonged to the
succession of late Salehmohamed Ramtoola. Whilst the case was still pending the Ramtoolas
sold their land, including the 20 perches which were purportedly being occupied by the
respondents, to the appellant company.

The respondents denied having erected any construction on land belonging to the
appellant company. They averred that they had constructed their building on the plot of land
which belongs to them and that they were entitled to continue their construction since the
appellant had attempted, but had failed, to obtain an interlocutory order from the Judge in
Chambers in order to prohibit them from continuing with their construction.

The learned trial judge carried out an elaborate historical analysis of various sales and
excisions of land as well as related surveys, before reaching to the following conclusion on the
issue of ownership in respect of the land in lite:

“In the light of the evidence adduced, I find on a balance of probabilities that the
land in lite has been traced since year 1872 through successive purchasers to
the plaintiff company’s title deed. Although there is nothing to suggest that the
defendants did not purchase in good faith a portion of land of 1A 13P which had
 3

been shown to them before they purchased it and which has been described in
their title deed as being the land in lite, yet on a balance of probabilities the
ownership of the land in lite, in terms of its location and identity traced from 1872,
has been established from the evidence adduced more in favour of the plaintiff
company than in favour of the defendants.”

The learned Judge accordingly found that the land in lite belonged to the appellant
company. The learned Judge, however, rejected the appellant’s contention that the
respondents were of bad faith when they occupied part of the land in lite and built on it. She
found that, in the light of the evidence and in view of all the surrounding circumstances, the
respondents had been of good faith throughout, ever since the start of their occupation of the
land in 1987.

The learned Judge after finding that the plaintiff company was the owner of the land in
lite and it was entitled to obtain the perpetual injunction against the respondents under prayer
(a), went on to hold that the respondents were of good faith when they occupied the land on the
basis of a duly registered deed and also when they proceeded with the construction on the land
in lite. The learned Judge accordingly declined to grant prayers (b) and (c) holding that the
appellant was not in the circumstances entitled to damages nor to an order compelling the
respondents to remove any of the constructions made by them on the land in lite since 1994.
She was further of the view that the respondents were entitled to be indemnified by the
appellant company in respect of the constructions erected by them pursuant to alinéas 3 and 4
of article 555 of the Civil Code.

She therefore granted prayer (a), i.e the perpetual injunction to prohibit the respondents
from interfering with the peaceful occupation of the land in lite, subject however to a payment of
an indemnity by the appellant to the respondents which was to be computed in conformity with
alinéa 3 of article 555 of the Civil Code.

The appellant is now appealing essentially against the order to indemnify and
compensate the respondents pursuant to article 555 of the Civil Code.

There were initially 8 grounds of appeal, but at the hearing, learned Counsel for the
appellant relied only on grounds 1,2,5,6 and 7 to contest the learned Judge’s finding that the
constructions were made in good faith by the respondents and as a result of which they were
entitled to be indemnified by the appellant. These grounds of appeal read as follows:-
 4

“1. The Learned Judge erred in finding that it had not been established whether
the constructions that the Respondents had made were on the 20 perches that
were subject-matter of the court proceedings instituted in 1988 by the previous
owners, the Ramtoolas, when there has been an admission by Respondent
No. 4, under cross-examination, that the building was found on the land that was
subject to proceedings before the Supreme Court since 1988.

2. The Learned Judge was accordingly wrong to have held that the construction
started by the Respondents as from March or April 1995 was made in good faith
pursuant to Article 550 of the Code Civil.

……

5. The Learned Judge was wrong not to have found that the Respondents were
of bad faith when they persisted in completing their construction started in 1995
after their claim to the land in lite was already the subject of no less than three
court proceedings.

6. The Learned Judge was also wrong not to have held that the Respondents
were of bad faith when, between 2008 and 2012, they deliberately applied for
another building and land use permit and erected an additional floor while yet
another proceeding for injunctive relief had been brought against them by the
Appellant, and while the present proceedings were pending before the Learned
Judge.

7. Having rightly found that the land in lite belonged to the Appellant and that
Articles 550 and 555 applied to the constructions put up by the Respondents, the
Learned Judge was wrong to have found that the latter had been of good faith
throughout, and that the Appellant should compensate them for the constructions
they have deliberately and conveniently kept on doing on the Appellant’s land
since 1995.”

Grounds 1,2,5,6 and 7 were argued together. They challenge the findings of fact and
law made by the learned Judge in deciding that the respondents had been acting in good faith
when they proceeded with their constructions on the land in lite.

The finding of the learned Judge that the land in lite belongs to the appellant is not in
dispute. It was submitted by learned Counsel for the appellant that, after having found that the
land in lite did belong to the appellant, the learned Judge was wrong to have found that the
respondents were of good faith and entitled to be compensated by the appellant for their
constructions on the land in lite. The learned Judge could not make such a finding since the
evidence on record clearly indicated that the respondents were, at all materials times, of utter
bad faith, when they erected the various constructions on the land in lite over the years.
 5

The law
It is common ground that Articles 550 and 555 of the Civil Code would be relevant for the
purpose of determining whether a “tiers” is entitled to be compensated in respect of
constructions erected “de bonne foi” on a land belonging to another person.
Article 550 provides that:

“550. Le possesseur est de bonne foi quand il possède comme propriétaire, en

vertu d’un titre translatif de propriété dont il ignore les vices.

Il cesse d’être de bonne foi du moment où ces vices lui sont connus.”

In order to be “de bonne foi” therefore, the “possesseur” must have a “titre translatif de
propriété” and must in addition, be unaware of “les vices de son titre” –

Article 555, which consists of 4 alinéas, reads as follows:

“555. 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’œuvre 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.”

What is meant by “bonne foi” for the purposes of Article 555 is explained in Note 13 from
Jurisclasseur, civil Code Vol 9 Art. 554 et 555 Vo Propriété: fasc: 95:

“La Cour de cassation considère ainsi que «le terme de bonne foi employé par
l’alinéa 4 de l’article 555 s’entend par référence à l’article 550 et ne vise que celui
 6

qui possède comme propriétaire en vertu d’un titre translatif de propriété dont il
ignore les vices”.

It follows from the provisions of Article 555 that:

1. The “propriétaire du sol” (“The owner”) has 2 options in respect of the constructions
erected by a “tiers” on the land belonging to the ‘propriétaire du sol’. The owner
may either decide to keep the building or compel the “tiers” to remove the building
from his land.
2. Where the “propriétaire du sol” decides to keep the building he would have to
compensate the “tiers” by paying him an amount computed in accordance with
alinéa 3 of article 555.
3. Where the “propriétaire du sol” opts for the demolition of the construction, as in the
present case, he is entitled to have the construction demolished at the expense of
the “tiers possesseur“ unless the “tiers possesseur” acted in good faith at the time
of his construction. If that is the case the “tiers” is entitled to be compensated by
the owner in accordance with alinéa 3 of Article 555.

It was incumbent on the learned Judge to decide whether the respondents were “de
bonne foi” at the time that they proceeded with the constructions on the land in lite: “L’existence
de la bonne foi ne doit donc pas être apprécié uniquement au moment où le possesseur obtient
un titre sur l’immeuble, mais au moment où il entreprend de construire (Cass. 3e civ., 3 juill.
1991, no. 89-18.517: Jurisdata no. 1991-002045)”. This was the crucial element which would
determine whether the respondents were entitled to any compensation where the appellant has
opted for the demolition of the building instead of keeping the building as its own.

What is important to retain however in that connection is that any person who, like the
respondents, builds on a land whilst there are pending judicial proceedings contesting the
ownership of the land in lite, would be considered to be of bad faith.

This is explained in the following excerpt from Jurisclasseur – Code Civil Vol. 9 (supra):

“15 – La jurisprudence se montre en pratique assez rigoureuse pour le

constructeur lorsque la validité de son titre est contestée en justice. … … le
simple fait qu’il entreprenne de bâtir alors qu’un procès est en cours quant à la
propriété du sol suffit à le rendre de mauvaise foi et à l’exposer à un risque de
 7

démolition (Cass. Req., 8 mars 1886 : DP 1887. 1, p. 298 ; S. 1887, I, p.373.)

(Emphasis added)

The learned Judge failed, for that purpose to take into account and to give due
consideration to the material evidence which indicated that the respondents embarked on each
occasion into the construction of the building whilst there were pending proceedings in Court to
determine the ownership of the land on which the respondents were carrying out their
construction.

Firstly, the evidence shows that the previous owners of the land, i.e the succession of
late Salehmohamed Ramtoola, had entered a case before the Supreme Court on 16 June 1988
praying for an order that the respondents should quit, leave and vacate 20 perches which
formed part of the land acquired by the respondents. The land was clearly identified since the
plaintiffs had, in their Statement of Claim, given a full description of the boundaries as well as
the registration number of the title deed. Following an application for a Rule Nisi against the
respondents, the respondents filed their statement of defence 5 February 1990, denying the
averments made by the plaintiffs as to their ownership of the land.

The respondents conceded in the course of the trial before the learned Judge that they
had constructed their building on the land which was the subject matter of judicial proceedings
initiated against them by the Ramtoolas in 1988. We shall reproduce verbatim what was
admitted in Court by the respondents’ representative in that respect:

“Q ça la terre ki missié Ramtoola ine poursuivre ou la.

A Oui.
Q C’est pas la terre lor lequel oune monte ou bâtiment.
A Non li même
Q C’est même la terre
A Li même.
Q C’est la terre ki oune monte ou bâtiment, c’est ène la terre 1 arpent 13 perches
` A Oui”

The above evidence indisputably established that the respondents were fully aware
since 1988 of the judicial action to challenge their title to the ownership of the property on which
they had erected the building. The initial claim in that case was in respect of 20 perches which
 8

formed part of that very plot of land on which the respondents started their construction in or
around March/April 1995.

The construction had not yet been terminated in September 1997. In the meantime, the
appellant after having purchased the property from the Ramtoolas, lodged its Plaint with
Summons in September 1996 claiming that respondents were in illegal occupation of the land in
lite of which the appellant was the lawful owner. The respondents however persisted with their
construction by adding another floor to the existing building in 2008. The appellant applied for
injunctive relief before the Judge in Chambers when the respondents applied for a building
permit. The respondents refused to give any undertaking before the Judge in Chambers and
completed their construction of the additional floor in 2008.

The learned Judge erred in reaching the conclusion that the respondents were of good
faith by failing to take into account the fact that the respondents were fully aware that there were
proceedings contesting their ownership of the land in lite pending in Court when they embarked
on each occasion upon the construction of their building on the said land.

The learned Judge instead adopted the wrong approach by taking into account irrelevant
considerations in concluding that the respondents acted in good faith. The following extracts
from the judgment indicate the wrong and irrelevant premises upon which she acted in reaching
such a conclusion:

“The fact that there was a case in Court does not help the plaintiff company
which ought to have itself been aware that there was a problem with the land it
was purchasing…”

“Furthermore the reasons given by the defendants (respondents) for having to

construct the additional floor to prevent water from damaging their work are
genuine and do not render them of bad faith in all the circumstances of the case”

The respondents could not be absolved of their bad faith on account of the fact that the
appellant should have refrained from purchasing the property in view of a problem concerning
its ownership nor was it open to the learned Judge to find that the respondents were not of bad
faith because they proceeded with the construction of the additional floor to solve a problem of
leakage to the existing roof. The bad faith of the respondents would be established once it was
shown that they proceeded with their construction “alors qu’un procès est en cours quant à la
 9

propriété du sol”. This was sufficient “à les rendre de mauvaise foi et les exposer à un risque de
démolition”. Jurisclasseur (supra)

The learned Judge, having found that the whole of the land in lite belonged to the
appellant needed to apply her mind only as to whether the respondents were “de bonne foi”
when they proceeded with their constructions on the said land. The learned Judge erred in
finding that the respondents were of good faith as she failed to take into account and to give due
consideration to the material evidence which showed that the respondents were at all material
times aware that the ownership of the land in lite was the subject of judicial proceedings. In
spite of pending court cases which had to determine the ownership of the land in lite, the
respondents chose to turn a blind eye and proceeded with the constructions.

For the given reasons, we consider that the learned Judge erred in finding that the
respondents were of good faith when they erected the constructions on the land in lite.

Learned Counsel for the appellant informed us at the hearing of the appeal that the
appellant was not pressing for any damages nor for the payment of any costs, indemnity or
compensation by the respondents and that in the light of the evidence, the appellant is only
asking that it be allowed to demolish the structures at its own costs but without having to pay to
the respondents any indemnity as ordered by the Judge.

Since the respondents had been acting “de mauvaise foi” at all material times, they are
not entitled to any indemnity pursuant to alinéas 3 and 4 of Article 555 of the Civil Code. It is
open to the appellant to proceed with the demolition of the buildings. This is made explicit in
Note 24 from Jurisclasseur – Code Civil Vol 9 (supra):

“24 – Liberté de l’option – si la mauvaise foi du constructeur est établie, le

propriétaire du fonds est libre de solliciter la démolition de la construction”.

In line with the provisions of Article 555 of the Civil Code, the need for the payment of
any indemnity by the appellant as ‘propriétaire du sol’ would not arise in the absence of good
faith on the part of the respondents.
 10

For all the above reasons, we quash the judgment of the learned Judge to the extent
that it subjected the granting of the perpetual injunction to the payment of an indemnity by the
appellant company to the respondents.

We instead:
(i) grant an order in the nature of a perpetual injunction restraining and prohibiting
the respondents from entering on appellant’s land (the land in lite) and from
hindering the appellant in the peaceful enjoyment and occupation of the said land;

(ii) order that all the constructions and structures standing on the said land may be
removed at the option of the appellant without the need for appellant to pay any
compensation or indemnity to the respondents.

With costs against the respondents.

A. Caunhye
Senior Puisne Judge

R. Teelock
Judge
8 January 2020

Judgment delivered by Hon. A. Caunhye, Senior Puisne Judge

For Appellant : Mr A. Robert, SA

Mr D. Basset, SC, together with,
Mr K. Namdarkhan, of Counsel

For Respondents : Mrs Attorney S. Toolsee-Jaunky

Mr G. Ithier, SC, together with
Mr D. Sibartie, of Counsel