Li Chen Ling Kaw v Societe Piang Sang Pere et Fils and another (Mauritius)

To bring a tierce opposition to a judgment affecting premises, a person must show an interest founded on a right of tenancy. It is unnecessary to prove that an existing tenant transferred the tenancy. A tenancy may be established from accepted oral evidence or inferences drawn from the parties’ conduct. The absence of a written lease, rent book or receipts is not conclusive. A trade licence held by one spouse is relevant but does not determine whether the other spouse acquired a tenancy where the landlord accepted her conduct of the business. In the context of spouses jointly conducting a business, one spouse’s surrender of the business behind the other’s back may constitute fraude under article 1421 of the Civil Code, including abuse of rights. These issues required a factual inquiry.

The appellant, who was married to the second respondent under the legal regime of community of goods and property, claimed that she and her husband had jointly conducted a business from premises owned by the first respondent. After the husband became ill and the parties separated, he agreed with the landlord that he would vacate the premises in return for abandonment of a rent claim. The appellant was not a party to that agreement or the resulting judgment.

She sought permission to bring a tierce opposition, a declaration that the judgment was unenforceable against her, and an injunction. The District Court dismissed her action on a plea in limine on 12 February 2008. The Supreme Court sitting as the Court of Civil Appeal dismissed her appeal on 27 May 2010. The central issue before the Board was whether her alleged tenancy interest and the effect of the spouses’ conduct could be determined without hearing evidence.

Lord Hope delivered the judgment of the Board. The appeal was allowed. The magistrate’s order dismissing the action on a plea in limine was set aside, and the case was remitted to the District Court for a hearing at which the parties could lead evidence. The first respondent was ordered to pay the costs before the Board and in the Supreme Court.

1. To qualify to bring a tierce opposition, the appellant had to show a right to occupy the premises which was, in some way, a right of tenancy. Mere prejudice to her business, or suspicion that the landlord wished to recover possession free from statutory constraints, was insufficient.
2. The magistrate had been mistaken to treat the application of the Landlord and Tenant Act 1999 as clearly excluded by section 3. The statutory protection continued to apply to premises of this description until 31 December 2017 under section 3(2)(ab), as amended. Suspicion about the landlord’s motive nevertheless did not itself create standing.
3. A tenancy requires certainty as to the parties and essential terms, but those matters may be established by accepted oral evidence or inferred from proved conduct. Article 1714 of the Civil Code confirmed that a tenancy could be oral. The absence of a written lease, rent book or receipts was not, by itself, fatal. Appadoo v Chung Wan Cheung [1962] MR 280 illustrated that evidence such as a rent receipt could establish a lease.
4. The fact that the trade licences were held only in the husband’s name was a factor, but was not determinative where the landlord knew that the appellant alone was running the business and was not troubled by the absence of a licence in her name.
5. Under article 1421 of the Civil Code, the meaning of fraude could extend beyond a common-law contrivance to deceive to conduct amounting to an abuse of rights. Where spouses jointly conduct a business, surrendering it behind the other spouse’s back could constitute such fraude. The strict pleading principle discussed in Maxo Products v Swan Insurance Co Ltd [1996] SCJ 41 therefore did not govern the appellant’s complaint as characterised.
6. The appellant did not need to prove that the husband’s tenancy had been transferred to her. It was sufficient to establish, by inference from the parties’ conduct, that she had acquired an interest as tenant before the impugned agreement. If she failed, the unpaid rent remained due and she would have to indemnify the landlord for her use and occupation. As a condition of proceeding to trial, she was required to pay Rs 60,000 into the Supreme Court of Mauritius.

• Privy Council: In [2012] UKPC 19, the appeal was allowed, the magistrate’s order was set aside, and the case was remitted to the District Court for a factual hearing.
• Supreme Court of Mauritius, Court of Civil Appeal: On 27 May 2010, the appellant’s appeal from the magistrate’s decision was dismissed.
• District Court of Port Louis: On 12 February 2008, the magistrate upheld the plea in limine and dismissed the appellant’s action.
• Judicial Committee: Special leave to appeal was granted on 24 March 2011 after conditional leave had been refused by the Supreme Court.