The Raphael Fishing Company Limited
(1) The State of
(2) Marie-Louis Robert Talbot
THE COURT OF APPEAL OF
- - - - - - - - - - - - - - - - -
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
- - - - - - - - - - - - - - - - -
Present at the hearing:-
- - - - - - - - - - - - - - - -
This appeal raises a short, but very interesting, point of law as to the meaning and effect to be attributed to a Deed dated
Before European colonisation of
The St Brandon Archipelago lies about
In 1820 the then Governor General of
The nature of land tenure in
(1) Regulations of
“22. With the view of abolishing the uncertain tenure of grants ‘en jouissance’, the Government will be prepared to substitute for such grants, grants in perpetuity, or leases for terms of years, according to the nature of the property, and the object and terms of the original grant.
23. In those cases in which the Government shall not deem fit to alienate its proprietary right, it will grant a lease of 7, 14 or 21 years, and in certain cases a lease for a longer period.
24. The conditions of the leases shall be such as to ensure the special object for which the ‘jouissance’ was originally conceded, and at the same time to give every encouragement to improvements, compatible with the purposes for which the title is reserved.”
And paragraph 30 invited “all persons holding grants en jouissance” to apply to the Government for the substitution, in place of their jouissances, “of grants in perpetuity or leases on the above terms”.
(2) In his above-mentioned Report dated
(3) In July 1864 new Regulations replaced the 1853 Regulations. Paragraph 2 of the new Regulations prohibited the disposal of Crown lands “by free grant” but made an exception “in the case of land required for religious, charitable, educational or other purposes of a public nature” and went on
“All such grants shall be conditional on the land being applied to the purposes for which the grants may have been made”.
The new Regulations contained, in paragraph 28, the following amended provision
“Persons holding existing Jouissances will be required to exchange them for grants in perpetuity, or in lease, as the Governor shall determine after report by the Surveyor General; due regard being had to the terms of their Title of Jouissance”
They then distinguished (for the first time) between limited and unlimited jouissances, providing in the case of the former for “Deeds of lease” for the unexpired portion of the Jouissance to be issued on terms and conditions in accordance, as far as possible, with those of the original Jouissance, but subject to the approval of the Governor (paragraph 29), and in the case of unlimited jouissances, for “Title Deeds” to be “issued for such periods, and upon such terms and conditions as the Governor may approve” (paragraph 30). In the light of paragraph 28, it is evident that the intention was that the “period” of the title deeds issued to replace an unlimited jouissance might be in perpetuity. Further, it was contemplated that such title deeds might be issued subject to terms or conditions which would continue to bind the holder.
(4) Regulations of 1865 relating to the Chagos Archipelago (then among the “Lesser Dependencies” of Mauritius) indicated the Government’s willingness to make grants in perpetuity in place of jouissances on terms that if the price of the coconut oil should rise the Government would be entitled to require payment by the grantees of such annual sum “as shall be considered just” (para. 5) and that the grants should not be in any way disposed of, either in perpetuity or for any terms of years to any person(s) not being either born or naturalised British subjects under penalty of immediate forfeiture of the grant (para. 6). A further term, para. 8 also provided that
“… in default of the performance by the grantee of any of the foregoing conditions, the grant to be made in terms of this notice shall be absolutely null and void, and ipso facto reunited to the Crown domain”
(5) By letter dated
“… the expediency of immediate measures being taken to remove this element of uncertainty and indefiniteness in the titles of land belonging to the Crown, either by the holders ceding their rights on receiving compensation, or acquiring an absolute grant on favourable terms, or, where neither of these courses is possible, by requiring them to accept, in lieu of their grants ‘en jouissance’, lease rights.”
The 1874 Ordinance, enacted on
(1) Section 1 says that “The Crown lands may be sold at the discretion of the Governor in Executive Council” but excepts from this power, inter alia, the “Pas Géométriques”. The “Pas Géométrique” is a strip of land of at least “Fifty Geometrical paces of Five French feet each” which is measured “from the line of the seashore reached by high water at Spring Tide”. There is a discrete question arising in this appeal as to whether the “permanent lease”, if otherwise a valid grant, included the “Pas Géométriques” of the islands and islets in question (without which little if anything would remain in the case of many). We will return to this point later.
(2) Section 11 of the 1874 Ordinance was in more restricted terms than paragraph 2 of the 1864 Regulations (see para. 37(3) above), being confined to land “required for Religious, Charitable or Educational purposes”, but, like that paragraph, said that the grants or leases for charitable purposes thereby authorised
“… shall be conditional on the land being or continuing to be applied to the purposes for which the grants or leases have been made.”
It is implicit in this provision that if the condition were to be broken the land would revert to the Crown domain (see para. 8 of the 1865 Regulations: para. 37(4) above).
(3) Sections 25, 26 and 27 of the Ordinance provide as follows :
“25. It shall henceforth not be lawful for the Governor to grant Jouissances, either limited or unlimited, of Crown Lands.
26. Persons holding existing Jouissances for an unlimited period of tenure, shall be required to exchange the same for permanent grants or leases as the Governor shall determine. Such grants or leases being as much as possible in accordance with the terms and conditions of the original Jouissances and compensation being given to the holder of such Jouissances whenever the original terms and conditions have to be modified to the prejudice of such holder.
27. When existing Jouissances now held for a limited period determine by efflux of time, such Jouissances shall not be renewed, but may be converted into a sale or a lease as the Governor shall deem fit.”
(4) Sections 25 to 27 thus develop and amend the clear distinction between, and between the treatment of, limited and unlimited jouissances. Unlimited jouissances were to be exchanged (by inference as soon as the Ordinance was in force) by permanent grants or leases being as much as possible in accordance with the terms and conditions of the original (section 26). Limited jouissances were to be allowed to determine by effluxion of time, and then be converted into a sale or a lease as the Governor should deem fit (section 27). The evident intention was that it should be possible to create on similar terms a secure permanent interest in lieu of a previous unlimited jouissance, and so, incidentally, to continue rather than preclude the approach taken in that respect in relation to the Chagos Archipelago in 1865.
(5) We also observe that section 11 of the 1874 Ordinance (and its predecessor 1864 Regulation II), did not make clear that a grant could be made on continuing conditions, but used the word “grant” to cover what were earlier in the same provisions referred to as “concessions” which had been made gratuitously or for a nominal price. Again, this reinforces the evident intention that a “grant” under the Ordinance was (apart from the added security it would give) to reflect as nearly as possible the previous concessionary jouissance which it replaced.
We note that a draft of the proposed Ordinance had a first reading in the Governor’s Council on
Condition 3 of the 1820 jouissances required, as we have indicated, the consent of the colonial government to any transfer. Under a deed of transfer dated
“… the jouissance currently held by the St Brandon Fish & Manure Company Ltd of the islands and islets referred to above be converted to a permanent lease in accordance with the above Ordinance, [with the company] claiming the rights of those to whom the Government of Mauritius granted it originally”
and that the lease was to commence as from
The Deed contained also the following relevant provisions –
(1) The company was to export to
(2) All products of the islands and islets (including, it is common ground, fish) were to be delivered to
(3) All the clauses and conditions contained in the grant of the jouissances were to be maintained and continue to bind the company.
(4) The lease was also at “un prix annuel” of one rupee, payable every 2nd October.
(5) Its terms were to be submitted for approval to the Procurator General and were not to have effect until after such approval.
It follows from point (3) that the provision in the jouissances for forfeiture and reverter to the Crown was incorporated by reference, along with the several positive and negative conditions, into the
The Deed was duly registered in
The business of the St Brandon Fish & Manure Co. Ltd. apparently failed to prosper, the company went into liquidation and its rights and interests under the 11 October Deed were sold by the liquidator to a
However, in June 1995,
The action was heard by
“… the law does not favour leases of a permanent duration and suggests that when a lease agreement is silent on the duration of the lease, it should be considered to be for a period which, in any case, cannot exceed 99 years.”
She so held in reliance on Article 1709 of the Civil Code.
The learned judge noted that the appellant had proved “its continuous and uninterrupted occupation of St
The Raphael Fishing Co. Ltd. and
A single judgment was delivered on
“… the permanent lease granted in 1901 by the Colonial Government was null and void.”
They refused the appellant company leave to appeal to the Privy Council but leave to do so was granted by the Privy Council on
The appeal came before the Board on 24 and
The first issue is one of construction of section 26 of the 1874 Ordinance. The Ordinance required the holders of jouissances that were of unlimited duration to exchange the jouissances for “permanent grants or leases”, as the Governor might in his discretion decide. The permanent grants or leases were to be “as much as possible in accordance with the terms and conditions of the original Jouissances” and compensation was to be paid if the original terms and conditions had to be modified to the prejudice of the jouissance holder. It is to be noted that no compensation was paid on the surrender of the 1820 jouissances, the duration of which was unlimited, in exchange for the “permanent lease”. Paragraph 27 of the draft Ordinance published in the Government Gazette of
“Lands which have been the subjects of concession, have in some instances been re-annexed to the Crown, in consequence of the grantees having failed to comply with the clauses and conditions of their Deeds of Concession. The forfeiture of such lands is established and the re-annexation declared by means of a judgment of the
In this connection,
The premise of Mr Cox’s submissions, both on the question whether the 1901 Deed can be given effect as a permanent lease and on the question whether the Deed can be treated as a permanent grant is that the Deed must be construed and given effect in a manner consistent with the Civil Code, the common law of Mauritius. This premise is, in our opinion, a mistaken one. The Deed was made pursuant to section 26 of the 1874 Ordinance and must be construed and given effect in accordance with that statutory provision. The Ordinance is not subject to the Civil Code. We accept that it should be construed against the background of the Civil Code but the legislature is not bound by the common law and can authorise the creation of systems or types of property ownership or property rights not previously known under the common law. This has become such a common feature of
The Ordinance intended that jouissances should be replaced by grants and leases. It intended that the grants and leases should be on the same terms as the jouissances they replaced. It is a reasonable inference, therefore, that a jouissance of indefinite duration would be replaced by a grant of indefinite duration. The proposition that a grant of indefinite duration cannot be accompanied by conditions to be observed by the grantee and by the possibility of defeasance and reverter to the Crown in the event of breach is contradicted not only by section 26 but also by section 11 of the Ordinance. These sections contemplate, in our opinion, that a conditional and defeasible grant may be made. Indeed, they contain language differentiating between “permanent grants or leases” (relevant under section 26 when converting unlimited jouissances) and “a sale or a lease” (relevant under section 27 after the expiry of a limited jouissance). The inference is that this was for the very reason that a statutory grant under section 26, being conditional and defeasible, differs from an absolute sale. Statute trumps the Civil Code. But section 26 reproduces as nearly as possible the position relating to the existing unlimited jouissances. We repeat that this is in our view wholly unsurprising. The statutory purpose was to confer certainty of tenure on terms mirroring those of the previous concessions in all respects save as regards revocability: the previous concessions were revocable on the ground of overriding public interest, irrespective of any breach of their conditions; the new rights were to involve security of tenure, provided such conditions were observed. There is nothing to suggest any statutory purpose to reduce the length of enjoyment of the rights in question – on the contrary.
We turn, therefore, to the 1901 Deed on the footing that it was open to the Governor to grant, pursuant to section 26 and in exchange for the surrender of jouissances, permanent property rights that were conditional and defeasible. That is what was done in the 1901 Deed. The intention of the grantor is unmistakeable. The grant is described as the grant of a “permanent lease”. The word that, in our opinion, is important is not “lease”, which is merely descriptive. We will assume, for the present, that, against the background of the Civil Code, the word “lease” is misdescriptive of the type of grant being made, but what matters is the word “permanent” and the fact that the 1901 Deed and its terms and conditions are capable of taking effect as a permanent grant. They are conditional and defeasible but the grant is, in our opinion, within the statutory power conferred by the section and, if it has an alien character when viewed through the spectacles of the Civil Code, that is beside the point. It is of course correct that, in the interpretation and understanding of any document, the description which the parties put on it is of relevance, but it is never conclusive.
We fully understand and accept the treatment by the French Cour de Cassation in
The 1874 Ordinance is a public statute regulating the relationship between the State and its citizens in relation to State property and capable of permitting and producing any result that seemed appropriate to the legislator. In the context of the Ordinance, the 1901 Deed is perfectly capable of operating according to its substance and (in all respects save mere name) its intent as a permanent grant. Mere misnomer cannot and should not be regarded as a ground of nullity, when the substance of a transaction is clear and the transaction is valid according to its substance. The Board was given no good reason or authority suggesting that Mauritian law is inflexible in this respect in a way in which the common law is certainly not. The common law will determine the nature of a transaction (e.g. whether it is a licence or a tenancy under the Landlord and Tenant legislation) according to its substance, not the description attached to it by the parties: see e.g. Addiscombe Garden Estate Ltd. v. Crabbe  1 QB 513; Shell-Mex and B.P. Ltd. v. Manchester Garages Ltd.  1 WLR 612, and other cases cited therein. There is no reason why the same should not, and every reason why it should, apply under the Ordinance.
Moreover, when one looks at the reasoning in
The suggestion was made that, because the appellants until the first hearing before the Board had presented their case on the sole basis that the description was correct, they should now be precluded by aveu judiciare or otherwise from amending their position to advance the alternative case, of permanent grant suggested by the Board, in circumstances where no conceivable prejudice (or none incapable of being covered by a simple costs order) can have arisen, would also represent a triumph of substance over form, which we have no hesitation in rejecting. If parties were precluded from raising pure points of law on appeal in this way, one might ask why respondents, particularly the State of Mauritius, should be entitled so radically to change their stance on appeal, in respects which we have already identified. In our view, therefore, if the 1901 Deed cannot take effect as a lease, because it is expressed to be permanent, the very fact of its intended permanence means that it was in substance a permanent grant, and should be given effect as such, on the conditions which it contains, as expressly permitted by section 26.
We return at this point to the question whether the 1901 Deed can in any event be given effect as a permanent lease according to its own description. As a matter of pure linguistics, the word “permanent” is at least as capable of qualifying the word “lease” as it clearly does the word “grant”. In contrast to the 1853 Regulations, the 1874 Ordinance did not specify any period. In contrast to the 1864 Regulations, it did not contrast grants “in perpetuity” and “in lease”, but, rather, adopted a scheme which clearly distinguished unlimited and limited jouissances and aimed at recreating the former as nearly as possible by grants or leases. It seems to us not without significance that the concept of a permanent lease appeared in the French text published in the Government Gazette after the first reading of the draft Ordinance before the Executive Council in August 1874. We are not persuaded that the effect of the Royal Ordinance in Council of 25 February 1841 is necessarily to preclude reference to the French text in a case of ambiguity, when that text appears to have been part of the travaux préparatoires leading up to the Ordinance, but, in any event, its use throws some light on legal thinking in the relevant era. And its use in the 1901 Deed and its recognition by the State in submissions to
We would add that if, contrary to our opinion,
Other objections to the validity of the rights claimed by the appellant have been raised in the course of this litigation but none, in our opinion, is of any substance. As to the Pas Géométriques, it is accepted that the jouissances surrendered in exchange for the 1901 Deed were exercisable over the foreshore of the islands. An arrête du
Having considered the course of this litigation and the issues raised in both courts below, we are satisfied that the above conclusions resolve all outstanding issues, and in particular that there is no issue remaining for resolution regarding the judge’s conclusion that any title that M. Talbot might otherwise have had must long since have been lost or extinguished. In our opinion, therefore, this appeal must be allowed. It also follows that the appellant is entitled to relief in the form of a declaration, order and perpetual injunction as set out in paragraph 71 below.
LORD RODGER OF EARLSFERRY AND
When the Board granted special leave to appeal in this case, the dispute between the parties appeared to be confined to a short, but important, issue of statutory construction, viz, whether the adjective “permanent” in section 26 of Ordinance No 18 of 1874 (“the 1874 Ordinance”) qualified both “grants” and “leases” or only “grants”:
“Persons holding existing Jouissances for an unlimited period of tenure, shall be required to exchange the same for permanent grants or leases as the Governor shall determine. Such grants or leases being as much as possible in accordance with the terms and conditions of the original Jouissances and compensation being given to the holder of such Jouissances whenever the original terms and conditions have to be modified to the prejudice of such holder.”
In the event, however, the appeal turned out also to raise various issues touching the very nature of rights of property in the law of
The dispute giving rise to the appeal concerns certain islands in the St Brandon Group. In 1820 the Colonial Government granted the “jouissance” of those islands to different people. In
“déclarent convertir en un bail permanent (permanent lease) conformément à l’Ordonnance précitée, la jouissance que possède actuellement la Société anonyme ‘St Brandon Fish & Manure Company Limited’ des îles & îlots ci-dessus décrits, comme se prétendent aux droits de ceux à qui l’avait concédée primitivement le Gouvernement de l’Ile Maurice.”
The lease was to run from
The “permanent lease” contained a number of conditions. In particular, the St Brandon Company was to export all the guano it found on the islands and to pay the Government a royalty of 5 rupees per ton. All the produce of the islands was to be sent to
So far as that last provision is concerned, there is nothing in the papers to show that the
In 1925 the liquidators of the St Brandon Company sold the right to the permanent lease to France Ulcoq who sold it in 1928 to the present appellants, the Raphael Fishing Co Ltd (“
It appears that in 1995 one
At first instance, in a judgment dated
For its part,
During the proceedings in the courts in
If the question of
“Le louage des choses est un contrat par lequel l’une des parties s’oblige à faire jouir l’autre d’une chose pendant un certain temps, et moyennant un certain prix que celle-ci s’oblige de lui payer” (emphasis added).
The terms of this article are identical to those of article 1709 of the French Code Civil.
The requirement that the lease of property should be for a limited period only is not a technicality. Rather, going back to Pothier, the bar on a lease being permanent is a bar d’ordre public of such fundamental importance that, subject to a qualification to which we shall return below, an agreement which violates it is absolutely void. This emerges unmistakably from the decision of the chambre civile of the cour de cassation in Lemerle c Suzineau
“Attendu … que l’interdiction faite ainsi au bailleur de concéder au preneur la jouissance perpétuelle de son immeuble est fondée sur des raisons qui tiennent, tant à l’organisation de la propriété, qu’à des interêts d’économie générale; que, par suite, les conventions particulières conclues au mépris de cette interdiction d’ordre public sont frappées d’une nullité absolue.”
See Ed Fuzier-Herman, Code civil annoté Vol 6 (1949), p 11, commentary on article 1709, para 41. The cour de cassation clearly had in mind the conceptual difficulty that a permanent lease would amount, in effect, to a sale of the land in return for periodic payments, which would be a rent by any other name. See, for instance, Ch Beudant, Cours de droit civil français: La Vente et le Louage (1908), para 484, cited by the Supreme Court.
The Civil Code was in force at the time when the 1874 Ordinance was enacted. We accordingly consider that section 26 must be interpreted against the background of the Code. In other words, when the section refers to a “lease”, content can only be given to that aspect of the provision by referring to the Civil Code to discover what is meant by a lease of land. The concept of a lease in the law of Mauritius is defined in article 1709, according to which it must be “pendant un certain temps”. It follows that, in agreement with the Supreme Court, we consider that, since a lease cannot, by definition, be permanent, in the phrase “permanent grant or lease”, the adjective “permanent” must be construed as qualifying only “grant”.
Any other construction of these words in section 26 would, in any event, run up against the objection that, if both the grant and the lease were to be permanent, it is unclear why the legislature would have made provision for both. The more natural construction is that the permanent grant was intended to be used where the Colonial Government considered that there was no reason not to give the holder of the jouissance of unlimited duration an equivalent right of unlimited duration. A lease was, presumably, to be used in cases where, perhaps because of possible future developments in the public interest on the land in question, the Government considered that a lease for a limited period was appropriate, with the holder of the jouissance receiving appropriate compensation for the prejudice he suffered by being given only this more limited right.
We have not overlooked the fact that, in the French translation published by the Colonial Government, the relevant part of section 26 refers to “des concessions perpétuelles ou des baux permanents”. But it is specifically provided by the Royal Order in Council of 25 February 1841 that such translations are to be reputed and taken to be translations only and that reference shall be had by all courts and judges “to the English version of such Ordinances …, and to such English versions only”. The translation must accordingly be disregarded in interpreting section 26.
According to its title, the purpose of the 1874 Ordinance was, inter alia, to make better provision for the disposal of Crown Lands. It envisages that, with certain specified exceptions, the Crown Lands may be “sold” at the discretion of the Governor in Executive Council: section 1. Section 3 provides that the “Pas Géométriques” may be “leased”. Section 11 provides
“No portion of any Crown Land shall be disposed of by free grant or at any other than its full value as hereinafter provided for, except in the case of Land required for Religious, Charitable or Educational purposes.
The Governor may, upon the advice of the Executive Council that the purposes for which the Land is required are bona fide Religious, Charitable or Educational, grant a concession or a lease of such Land on payment of a nominal price or rent.
All such grants or leases shall be conditional on the Land being or continuing to be applied to the purposes for which the grants or leases have been made.”
Section 12 goes on to provide that all sales of Crown Land shall be by public auction and section 13 makes provision for leases of Crown land. Section 31 abolishes fees received by public officers on account of “grants, sales or leases” of Crown lands.
We draw attention to three related points. Section 11 is the first place in the Ordinance where reference is made to a “grant” of Crown land. As the juxtaposition with sections 12 and 13 shows, the legislature distinguishes between grants and sales and between grants and leases. The same applies to section 31. Secondly, while section 11 does not say that the grant of Crown land for charitable purposes is to be “permanent”, there is nothing to suggest that it cannot be of indefinite duration, provided only that the land is applied for the charitable purpose for which the grant was made. Finally, whatever may be the appropriate classification of the right which it creates, the grant is subject to the condition that the land remains in charitable use.
Section 11 does, in fact, contain an indication of the juridical nature of the grants which it envisages. It begins with a general prohibition on any portion of any Crown land being disposed of by free grant. It goes on to provide that, if the land is required for bona fide religious, charitable or educational purposes, the Governor may grant a “concession”. It concludes by providing that all such “grants” are to be conditional on the land being, or continuing to be, applied to the intended purposes. When, therefore, the legislature refers to “grants” in section 11, those grants are in the nature of “concessions” subject to conditions.
We have no doubt that, when section 26 refers to “permanent grants”, the grants are similarly to be regarded as “permanent concessions”. Moreover, section 27 shows that those grants or concessions are to be contrasted with “sales”:
“When existing Jouissances now held for a limited period determine by efflux of time, such Jouissances shall not be renewed, but may be converted into a sale or a lease as the Governor shall deem fit.”
In the situation covered by section 27, the rights of the holder of the jouissance have come to an end. But the former holder is given a right to buy the land – in other words, to become the outright owner of the land in return for paying the appropriate price.
Section 26 is different. It covers the case where the jouissances are for an unlimited period. So, subject to the holder complying with the conditions of the jouissance, his rights were not going to terminate. In that situation, there could be no question of the holders having to purchase the lands. To require them to surrender their jouissances and pay a purchase price for the land would be tantamount to expropriating the jouissances. Instead, the legislature provides that the jouissances are to be exchanged for permanent grants or for leases, as the Governor shall determine, and the conditions of the grants or leases are to be as much as possible in accordance with the terms and conditions of the original jouissances. Where the terms have to be modified to the detriment of the holder of the jouissance, compensation is to be paid.
What, then, is the nature of these grants or concessions for which the holders of a jouissance are obliged to exchange that jouissance? Plainly, the intention is not that the beneficiary of the grant is to become owner of the lands in question. Had that been the intention, the legislature would have used the language of transfer of ownership. Moreover, what section 26 envisages is that the grants are to be conditional – reproducing, as closely as possible, the conditions of the existing jouissances. Mr Cox rightly emphasised that a right of property subject to a resolutive condition is inconsistent with the fundamental principles of the Civil Code of Mauritius and the French Code Civil. We accept, of course, that the essentially absolute nature of the right of property is declared by article 544 of the Civil Code, reproducing the celebrated article 544 of the French Code Civil:
“la propriété est le droit de jouir et disposer des choses de la manière la plus absolue, pourvu qu’on n’en fasse pas un usage prohibé par les lois ou par les règlements.”
But this simply confirms that, since the beneficiaries of a grant under section 26 of the 1874 Ordinance have a conditional right, they do not have a right of ownership. Technically, the ownership of the lands remains vested in the Crown, but the breadth of the grant or concession is such that, so long as the beneficiary of the grant complies with the conditions, he has full practical enjoyment of the lands in question.
Mr Cox objected that no intermediate right of this kind is known to the civil law of Mauritius as embodied in the Civil Code. That is correct, but such an intermediate right is nevertheless precisely the kind of right that is created by section 26 of the 1874 Ordinance. So it is part of the law of Mauritius. Moreover, while a right of this kind is unknown to the French Code Civil, grants and concessions have long been known in French law of the post-Napoleonic era in connexion with the inalienable “domaine public”.
While the railways were classified as part of the “domaine public”, the companies which actually ran the railways were given grants or concessions of the various lines. As is pointed out in M Planiol and G Ripert, Traité Pratique de Droit Civil Français vol III Les Biens (2nd edition, by M Picard, 1952), pp 154-155, while these companies did not thereby become the owner of the track, stations etc, nevertheless the Conseil d’Etat recognised that they had “un droit réel de caractère administratif”:
“En un mot, le concessionaire est titulaire d’un droit réel administratif opposable à tous, même à l’administration concédante.”
Earlier, at pp 55-56, referring to the class of droits réels administratifs, the same authors had observed:
“Ces droits diffèrent des droits réels que connaît le droit civil en ce qu’ils sont toujours temporaires et toujours révocables à des conditions déterminées.”
While the rights had to be revocable in order to protect the dedication of public property to public use, “à tous autres égards, ils ont le caractère de droits réels....”
Canals furnish another example. While the company which was granted the concession of a canal thereby obtained a simple “droit de jouissance”, which did not create a real right, none the less the Conseil d’Etat and the cour de cassation recognised that, where the concession was made in perpetuity, the canal became private property over which the concessionaire could establish all rights which were not incompatible with navigation: Planiol and Ripert, Traité Pratique vol III, p 155.
Such a system of grants or concessions obviously serves a useful function. Recognising this, the Conseil d’Etat and the cour de cassation ensured that they took effect in a way that secured the rights of the concessionaires - even at the cost of some blurring of the dividing line between personal and real rights. In France such concessions belong to the realm of droit administratif, a system of law which has not been adopted in Mauritius. But that is of no importance. There is no reason why the permanent grants or concessions envisaged by section 26 of the 1874 Ordinance should not form part of the general law of Mauritius, and similarly be given full effect, without the need to attribute them to a particular division of that law, whether public or private. If and when the courts of Mauritius have to decide questions as to the effect of such grants, they can be expected to address them in the same essentially practical way as they have been approached in France.
We can now return to the situation in this case. As already explained, it was the Colonial Government which insisted in 1900 that the jouissances should be converted into a permanent lease. The error of thinking that permanent leases were envisaged by section 26 of the 1874 Ordinance was the Government’s. That error may well have been prompted by the French translation of the Ordinance which had been issued under the Government’s aegis. Precisely because of that error, this is one of the rare cases where the contravention of the requirement that a lease should be “pendant un certain temps” is express, rather than to be inferred from other terms. See Ed Fuzier-Herman, Code civil annoté Vol 6, pp 11-12, commentary on article 1709, para 42.
The decision of the cour de cassation, that a lease for an indefinite period is void, is subject to a qualification, ch civ, 20 mars 1929, DP 1930 1.13, that the court could delete the offending provision and save the validity of the lease if that provision could be regarded as accessory or secondary:
“Attendu que, même si les juges du fond avaient le pouvoir de supprimer d’un contrat, maintenu en son surplus, une seule clause illicite, qui, à raison de son caractère accessoire, paraîtrait pouvoir disparaître sans que l’économie de la convention en fût atteinte, l’arrêt attaqué serait encore dépourvu de base légale, à défaut de toute appréciation y portée sur le caractère secondaire, ou, au contraire, essentiel, que la clause illicite pouvait avoir dans l’esprit des parties….”
See Ed Fuzier-Herman, Code civil annoté Vol 6, p 11, commentary on article 1709, para 41.
While the Colonial Government made a mistake by choosing a permanent lease, it cannot be doubted that the permanency of the lease was among its essential characteristics for both parties since it was intended to replace a jouissance of indefinite duration. Applying the approach of the cour de cassation based on considerations of ordre public, we are satisfied that the purported lease was, qua lease, an absolute nullity.
The next question is whether it is open to the Board in these circumstances to proceed on the basis that, despite being a nullity as a lease, the transaction entered into in 1901 can be treated as a permanent grant in terms of section 26 of the Ordinance and so to declare that Raphael Fishing has a permanent grant of the islands concerned. Against making such a declaration, it could be said that it would be wrong to attribute any legal effect to a transaction which, on grounds of ordre public, is to be regarded as a nullity. But for the background of the 1874 Ordinance, we should find that argument compelling. Section 26 of the Ordinance cannot be ignored, however. It shows that, so far from a transaction creating a permanent but conditional right over Crown - now State - land being contrary to public or legal policy, just such a transaction is envisaged by section 26. There is therefore no relevant objection in principle to treating the transaction as a permanent grant.
The particular circumstances favour that approach in this case. In 1901 the Colonial Government undoubtedly determined that it should give the St Brandon Company a permanent right over the islands in place of the jouissances of unlimited duration. The Government’s decision that this right should be embodied in the form of a permanent lease was a mistake for which, so far as can be seen, the St Brandon Company bore no responsibility. On behalf of the State, Mr Cox acknowledged that, if the 1901 lease were indeed void, then, subject to any claim by Mr Talbot, Raphael Fishing would fall to be regarded as the holder of the jouissances which the Colonial Government had purported to convert into permanent leases. He further acknowledged that Raphael Fishing would have a right, under section 26 of the 1874 Ordinance, to apply for a permanent grant over the islands. We are unable to see how the State could properly do other than accede to that application by making a permanent grant on terms and conditions which would be no less favourable to the grantee than the terms and conditions of the purported lease to the St Brandon Company. Since that is what justice would in any event require, we are satisfied that it would be proper simply to declare that Raphael Fishing is the holder of a permanent grant of the islands mentioned in the 1901 deed, subject to the conditions therein. In our view the appeal should accordingly be allowed and a declaration made in those terms. That is also the view of the other members of the Board.
Mr Talbot did not appeal against Balgobin J’s rejection of his claim based on prescription. The Supreme Court allowed his appeal against the grant of an injunction simply on the ground that Raphael Fishing had no right to possession of the islands. That point cannot survive the Board’s decision that Raphael Fishing is the holder of a permanent grant.
For these reasons we agree that the appeal should be allowed and that the relief proposed by Lord Scott and Lord Mance should be granted.
LORD NEUBERGER OF ABBOTSBURY
I have had the benefit of reading in draft the judgment prepared by Lord Scott of Foscote and Lord Mance. I have also had the benefit of reading in draft the judgment prepared by Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe. I agree that this appeal should be allowed for the reasons given in both judgments.
In my view, the word “permanent” in section 26 of the 1874 Ordinance governs the word “grants” and not the word “leases”. The concept of a permanent lease is almost a contradiction in terms. While such an interest could, I suppose, be created or sanctioned by legislation, it would require very clear words, such as are not found in the 1874 Ordinance. Further, it is hard to see why the 1874 Ordinance should permit both a permanent grant or a permanent lease. I do not consider that the French version of the draft Ordinance is admissible as an aid to construction. Nor would I have changed my mind if it had been admissible: it could easily have been, and probably was, based on a mistaken interpretation of the official version.
Accordingly, if one were forced to treat the 1901 Deed as a lease, it must be a nullity, as the Court of Appeal concluded: see Lemerle C. Suizineau Cass. 20.03.1929 DP.1930.1.13. In the context of the code civile, at any rate, there would, in my view, normally be considerable difficulties in the way of the grantee of a permanent lease establishing that it should be treated as a permanent grant or an outright sale. However, given that the 1901 Deed was executed pursuant to the 1874 Ordinance, and in particular purportedly under the provisions of section 26 thereof, it appears to me that the 1901 Deed can and should be treated as a permanent grant.
Accordingly, I, too, would make the declaration and injunctions proposed in the two preceding judgments.
LORD SCOTT OF FOSCOTE
For the reasons given in the above judgment the Board will allow this appeal, set aside the orders made in the courts below and
(1) declare that the appellant is the holder of a permanent grant of the islands mentioned in the 1901 Deed (transcribed in Vol TB25 No 342) subject to the conditions therein referred to;
(2) order the removal from the Register maintained by the Conservator of Mortgages in Mauritius of all relevant entries concerning the Deed of Sale transcribed in Vol 3131 No 52; and
(3) grant a perpetual injunction restraining M. Talbot, his agents, servants or employees from interfering with the appellant’s possession of the islands mentioned in the 1901 Deed.
The parties may within 28 days make submissions in writing as to costs of the appeal to the Board and of the proceedings in the courts below.