Suppo v Jhundoo

A contre lettre is a secret transaction, not merely a document. It requires a simultaneous meeting of minds, although the documents recording the transactions may be separated by years. A later document may nevertheless constitute commencement de preuve par écrit and support proof of an earlier trust. A citizen’s purchase of land on trust for a non-citizen is illegal where the purchase and trust were simultaneous in planning or execution. The illegality does not depend on contradicting the registered purchase deed or proving a formally written declaration of trust. It is enough to prove the trust by admissible evidence. Statutory sale and distribution of proceeds do not enforce the tainted trust.

Ms Suppo claimed beneficial ownership of land purchased by Mr Jhundoo in 1987, on which two bungalows were later built. She relied on a notarised 2001 deed in which Mr Jhundoo stated that the land and buildings belonged in truth to her and undertook to transfer them.

The trial judge admitted the deed, accepted Ms Suppo’s evidence, found that the property had been held on a common-intention trust for her from the outset, and held that the purchase was illegal under the Non-Citizens (Property Restriction) Act 1975. He ordered a statutory sale. The Court of Appeal held that the 2001 deed was not a valid contre lettre and dismissed the claim. The central issue before the Board was whether the deed could nevertheless be used as written evidence of the earlier trust and of the resulting illegality.

Appeal allowed. The Board restored the trial judge’s order for sale.

1. Contre lettre. The concept concerns a secret transaction rather than simply a document. The secret and open transactions must be within a simultaneous meeting of minds, although they need not be made or recorded at the same time. The Board accepted that the 2001 Deed, considered alone, was not a valid contre lettre.
2. Written evidence. A commencement de preuve par écrit is writing from the person alleged to be liable which makes the fact alleged likely. It can displace the usual prohibition on purely oral proof. The 2001 Deed was plainly sufficient for that purpose and could support the trial judge’s finding of a trust from 1987.
3. Procedural fairness. Ms Suppo’s pleadings, replies to particulars and reliance on the deed made clear that it was being used as written evidence of her beneficial ownership and financial contribution. Mr Jhundoo had adequate notice and a fair opportunity to meet that case. The absence of express references to the doctrinal labels commencement de preuve par écrit and pacte secret did not prevent the Board from considering the substance of the case.
4. Illegality. Applying the principle established in Imhof v Boolakee [2006] SCJ 232, any purchase of land by a citizen on trust for a non-citizen is illegal. The trust may be proved by admissible evidence; the written admission need not itself be a valid contre lettre. A purchase deed recording acquisition of the legal estate and a trust concerning the beneficial interest do not contradict one another. Where the purchase and trust are simultaneous in planning or execution, both are tainted. Payment of statutory sale proceeds to the person entitled under section 5(4) of the Non-Citizens (Property Restriction) Act 1975 is not enforcement of the tainted trust.
5. The Court of Appeal therefore erred by treating the invalidity of the 2001 Deed as a contre lettre as decisive. The judge’s factual findings and order for sale were restored.

1. Privy Council: Appeal allowed and the trial judge’s order for sale restored.
2. Court of Appeal of Mauritius: Appeal allowed, the 2001 Deed was held not to be a valid contre lettre, and Ms Suppo’s claim was dismissed with costs.
3. Supreme Court of Mauritius: The trial judge admitted the 2001 Deed, found a common-intention trust from 1987, held the purchase illegal, and ordered sale by the Curator of Vacant Estate.