LAM VO HEE R v SIN FLORE M

2016 SCJ 527

In Chambers
SN 1910/2015

IN THE SUPREME COURT OF MAURITIUS

In the matter of:Richarno Lam Vo Hee
Applicant
v.
Marie Sin Flore
Respondent
In the presence of:The Rodrigues Regional Assembly
Co-Respondent
JUDGMENT
This is an application for a writ habere facias possessionem to issue against the
respondent to compel her to vacate an immovable property situate at Baie Malgache,
Rodrigues. The respondent is resisting the application.
The immovable property is in fact State land which has been leased to the
applicant by the co-respondent by virtue of a written agreement (Document A annexed to
the applicants affidavit dated 1 December 2015). The lease is solely for agricultural
purposes and is valid for a period from 28 July 2010 up to 30 June 2020. It cannot be
disputed that a lessee of State land has the required locus to evict an illegal occupier of
that land (Rangloll v Nobin [1979 MR 94]).

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It is to be noted that the co-respondent, which is the authority responsible for State
lands in Rodrigues, has confirmed having leased the State land in lite to the applicant as
per the terms and conditions of Document A. The co-respondent has also averred as
follows: the respondent held agricultural permits in respect of the State land in lite and of
another plot of land some 50 metres away. Both agricultural permits have already expired
and the respondent never applied for their renewal.
In these circumstances, I have no difficulty in finding that the applicant has
established a clear and unambiguous title to the State Land in lite.
The issue which remains to be determined is whether the respondent has raised a
serious and bona fide defence to the present application.
In this respect, the respondent has averred that she is not in fact occupying the
State land in lite. She has instead been occupying since 2009, by virtue of an agricultural
permit which has been tacitly renewed, a plot of land which is found 50 metres away from
the State land in lite.
The respondents averments have in effect been denied by the co-respondent
which is the authority responsible for State lands in Rodrigues. As already stated above,
according to the co-respondent, the respondents agricultural permits have already
expired and she has not applied for their renewal.
In any case, on the respondents own version, it is hard to see what would be the
harm or prejudice caused to her if the present application were to be granted and she
were to be ordered to vacate the State land in lite. According to her affidavit under oath,
she is not occupying the State land in lite but another land found 50 metres away. This in
effect amounts to no defence or no serious defence to the prayer for her eviction only from
the State land in lite.
In fact, learned Counsel for the respondent is relying essentially on the alleged
inordinate delay of the applicant in lodging the present application. In support of his
submissions, learned Counsel referred to the case of Ramjahn v Bodhe [2009 SCJ 110],
in which the Supreme Court held as follows:-

. a close study of our case law leaves us in no doubt that the

requirement of urgency has been firmly established mostly for historical
reasons as a jurisdictional requirement in any application for a writ
habere facias possessionem.
Learned Counsel for the applicant has, however, referred to the subsequent case
of Elaheebocus v Elaheebocus [2011 SCJ 181], which was an application for a writ
habere facias possessionem.

The learned Judge, who was one of the Judges in

Ramjahn (supra), considered the requirement of urgency anew in a different light and
pointed out that constitutional implications having regard to the right to property had not
been considered in Ramjhan (supra). The respondent had rested his defence solely on
the absence of urgency. The learned Judge granted the writ holding as follows:. the eviction of an occupier who, having raised no defence at all or no
serious defence, must be presumed to be an illegal occupier, requires
immediate action or attention to give the required protection to the right to
property enshrined in the Constitution. And delay in vindicating that right
should not detract from the necessity for immediate action to give effect to
that right.
It is to be noted that in Pavadi v Choyta [2008 SCJ 243], quoted with approval in
Cartwright v Ross [2013 SCJ 433], it was held that, in an application for a writ habere
facias possessionem, delay per se is not fatal to the issue of a writ but is one of the
factors to be considered by the Judge.
In the present case, the evidence on record shows that the applicant did in fact
vindicate his rights at an early stage. It is not disputed that he sought the eviction of the
respondent from the State land in lite by way of a case before the Court of Rodrigues
lodged in February 2011, i.e., a few months after he signed the lease in September 2010
(vide Document A). The court case was set aside in January 2014. The applicant then
lodged the present application, admittedly with some delay, in December 2015.

I,

however, do not believe that this delay per se should be fatal to the issue of the writ, the
more so that the respondent has failed to raise any serious defence. The applicant should
not be deprived of his right to occupy the State land in lite by virtue of the lease granted to
him by the co-respondent but he has so far been unable to exercise this right due to its
illegal occupation by the respondent.

For the reasons given above, I find that the applicant has established a clear and
unambiguous title to the State Land in lite and that the respondent has failed to raise a
serious and bona fide defence to the present application. I, therefore, grant the present
application.
I, accordingly, order that a writ habere facias possessionem be issued against the
respondent compelling her to quit, leave and vacate the State Land in lite situate at Baie
Malgache, Rodrigues, morefully described in Document A, at latest by the end of
January 2017. With costs against the respondent. I certify as to Counsel.

D. Chan Kan Cheong

Judge
28 December 2016

------------For Applicant

Mr J.C. Ohsan-Bellepeau, Attorney-at-Law

Mr S. Tirvassen, of Counsel

For Respondent

Mr R. Rajroop, Attorney-at-Law
Mr Z. Rajani, of Counsel

For Co-Respondent :

Mr A. Abbasakoor, Attorney-at-Law
Mr I. Cooshna, of Counsel