Zaragoza v Madeleine

2001 SCJ 41
RECORD NO: 5C/79/00

IN THE SUPREME COURT OF MAURITIUS

In the matter of:-

M.A. Zaragoza
Appellant
v.s.

L.N. Madeleine
Respondent
----------

JUDGMENT

On 6 January 2000 the respondent had applied to the Judge in

Chambers for a writ Habere Facias Possessionem on the ground that the

lease he had granted to the appellant of furnished premises known as “Auberge

Aquarelle” had come to an end. The appellant had failed to vacate the premises

although advised by letters dated 20 August 1999 and 11 October 1999 that

the lease would not be renewed at its termination on 31 December 1999. In

June 2000 the Judge in Chambers ordered that a writ Habere Facias

Possessionem should issue unless the appellant would have vacated the

premises by end of July 2000.

There are seven grounds of appeal but basically two main issues are

evoked viz.

(1) that the appellant has a “droit de rétention et de

superficie” over certain fixtures which he claims to have

added and

(2) that he had a serious and bona fide defence.

 In an affidavit dated 31 January 2000 the appellant averred that the

leased premises were unfurnished and that she was a protected tenant. In a

further affidavit dated 6 March 2000 the appellant averred that she was the

beneficiary of a “droit de superficie” and/or a “droit de retention” of the

additions she had made to the building.

In yet another affidavit dated 14 April 2000 the appellant made a new

averment that she had carried out works on the rented premises viz. that she

had built three bungalows, one verandah, one room and had renovated the bar

and that it was agreed between the parties that as a counterpart of the plus

value of Rs 880,000 which she had brought to the premises the lease agreement

would be extended for 10 years free of charge.

The learned Judge in Chambers had no difficulty to reject the piece-meal

and step by step embellished versions of the affidavits submitted by the

appellant. Reference was made to the written lease agreement which clearly

mentions that the premises were furnished ones and that the furniture were

listed in an annexed inventory, a copy of which was duly produced by the

maker, one Mr Hector.

With regard to the defence of “droit de superficie” and/or “droit de

retention” which exists pursuant to article 555 of the Code Napoléon this has

clearly no application to our present case in the light of clause 10 of the

contract of lease which reads:

 “10. Le preneur ne pourra apporter aucun
changement aux lieux loués, sans l’autorisation
préalable expresse et écrite du bailleur. Tous
changements et améliorations exécutés par le preneur,
même avec l’autorisation du bailleur, resteront acquis
sans indemnité au bailleur, à moins que celui-ci ne
préfère, à l’expiration du bail, faire remettre les lieux
loués dans leur état primitif, aux frais du preneur.”

The relevant legal provision governing the relationship between the

parties is in fact art. 1134 of the Code Napoléon: les conventions légalement

formées tiennent lieu de loi à ceux qui les ont faites….”

Since the lease was obviously for furnished premises and in the light of

Clause 10 of the lease agreement, the appellant has simply no leg to stand on.

This appeal is frivolous and is dismissed. With costs. The appellant

shall vacate the premises by the end of this month.

Y.K.J. Yeung Sik Yuen

Senior Puisne Judge

R.N. Narayen
Judge
15 February, 2001
Judgment delivered by Hon. Y.K.J. Yeung Sik Yuen, Senior Puisne Judge

----------
For Appellant:
Mr D. Ng Sui Wa, of Counsel, instructed by Mr J.M. Leclézio, Attorney

For Respondent:
Mr G. Glover, of Counsel, instructed by Mr C. Moutia, Attorney