The Raphael Fishing Company Ltd v. The State of Mauritius & Anor (Mauritius) [2008] UKPC 43 (30 July 2008)

Privy Council Appeal No 54 of 2006		

The Raphael Fishing Company Limited 				Appellant

v.

(1) The State of Mauritius
(2) Marie Louis Robert Talbot	Respondents

FROM

THE COURT OF APPEAL OF 
MAURITIUS

- - - - - - - - - - - - - - - - - 

JUDGMENT OF THE LORDS OF THE JUDICIAL 
COMMITTEE OF THE PRIVY COUNCIL

Delivered the 30th July 2008

- - - - - - - - - - - - - - - - - 

Present at the hearing:-

	Lord Scott of Foscote
	Lord Rodger of Earlsferry
	Lord Walker of Gestingthorpe
	Lord Mance
	Lord Neuberger of Abbotsbury
	
- - - - - - - - - - - - - - - -

LORD SCOTT OF FOSCOTE AND LORD MANCE

1.	This appeal raises a short, but very interesting, point of law as to the meaning and effect to be attributed to a Deed dated 11 October 1901 which purported to grant to the St Brandon Fish and Manure Co. Ltd. with effect from 2 October 1901 a “permanent lease” of the five groups of islands and islets constituting the Cargados Carajos otherwise known as the St Brandon Archipelago.  The grantor was the Colonial Government of Mauritius acting, or purporting to act, in pursuance of a statutory power conferred by section 26 of Ordinance No 18 of 1874.  The problem about the 11 October 1901 Deed is that the concept of a “permanent lease” was not then and is not now known to the Civil Code (essentially the Code Napoleon with a few alterations) that constitutes the common law of Mauritius.  The issue is one of construction, first, of section 26 of the 1874 Ordinance – what was the breadth of the dispositive power that the section conferred on the Governor? – and, second, of the Deed itself – were the interests purported to have been granted by the Deed within the breadth of that dispositive power?  Before addressing these questions it is necessary to provide a good deal of background, historical and constitutional as well as factual. 

The Background
2.	Mauritius and its associated islands, which include the islands to which the “permanent lease” relates, were colonised by the French in about 1715, granted by the King of France to the Compagnie des Judes in 1726 but retroceded to the French Crown in 1765.  In 1806 Napoleon ordered the proclamation of the Civil Code as the Law of Mauritius and its islands.  When, in 1810, Mauritius was taken by force of arms by Britain, the articles of capitulation confirmed to the inhabitants, in accordance with British constitutional practice, the continuance of their own laws, i.e. the Code Napoleon as it then stood.  Mauritius, having been a Crown Colony since 1810, became an independent state within the Commonwealth in 1968 and a republic in 1992.  The Code Napoleon has remained its common law subject, of course, to statutory changes from time to time.  So far as land tenure is concerned, the feudal system had been abolished in France in 1789 and under the Code Napoleon land was treated as purely allodial, capable of being disposed of as freely as any other property.  Forfeitures of land to the feudal lord were abolished with the abolition of the feudal system.

3.	Before European colonisation of Mauritius the larger islands were covered by dense woodlands.  A colonial imperative was to clear woodland in order to enable agricultural activity to take place at least sufficient to feed the colonists, their servants and those in military and commercial establishments on Mauritius.  The practice by means of which the French authorities encouraged the development of agriculture consisted of the grant of concessions of land to individuals willing to clear the land and produce food from it.  The typical grants were made on conditions that required the performance of these clearance and agricultural activities and contained reverter provisions enabling the forfeiture of the grants and the re-possession of the land by the Crown in the event of breach.  The practice of encouraging land development by means of the grant of concessions was continued by the British after 1810.  One of the types of concession that was granted, first by the French and then by the British, was the “jouissance”, a term defined in the Council of Europe French-English Legal Dictionary as meaning the “right to receive the produce of property either in kind or indirectly …; right to enjoy”.  A jouissance could be granted either for a limited or an unlimited period.

4.	The St Brandon Archipelago lies about 250 miles north of the main island of Mauritius. It consists of five groups of in total 22 islands or islets, with an aggregate land area no greater than about half a square mile and prone to substantial submersion in severe weather. Their practical utility lies in the fishing around them on the very extensive shallow bank covering some 900 square miles around them: see the Surveyor General’s Report to the Colonial Secretary dated 1st June 1863, para. 4. Most of the islands were in use as fishing stations by the early 19th century, though these stations suffered disastrous inundations in 1812 and again 1818: see the Limuria Book Part 2 Chap. VII, p.188.

5.	In 1820 the then Governor General of Mauritius granted jouissances in respect of the five groups as follows. He granted to Ozile Majestre alone a joussance exclusive over one group, the Iles Boisées, and to two individuals, Ozile Majestre and Dominique Bétuel, jouissances en partage over another group of six islands (Petits Foux, Lavocaire and four others).  He granted three further jouissances exclusives to respectively M. Burceret (La Baleine and l’île aux Cocos), Mme. Veuve Raphaël (l’île Raphaël) and Mr William Stone (Ile Veronge and Ile aux Bois). All these jouissances were unlimited in time. The jouissance that had been granted to M. Majestre alone is in evidence and it is agreed that it may be taken as typical of the jouissances that related to the other groups.  The jouissance recited, as background to its grant, that M. Majestre had in 1806 purchased a fishery establishment formed some years previously on the St Brandon islands. The jouissance is subject to a number of conditions.  By condition 1 the fishing over the whole bank was to be common to all those to whom places of establishment were at that time granted (i.e. all the jouissance holders), on the basis that they would not harm, but would on the contrary help and come to the assistance of, each other on pain of forfeiture of all rights of establishment and fishing by anyone disturbing the peace. Condition 2 recited that, as the only islands which appeared to offer less briny water were Veronge and Lavocaire, use of their wells was reserved for all the establishments on the bank, but that this was not, under any pretext, to be a cause of obstruction to the jouissances granted over those islands. Condition 3 required government approval for any transfer of the jouissance. Condition 4 required a declaration in the first months of each year to the Commissioner of Police, giving details of personnel, boats and equipment employed in the jouissance-holder’s establishment. Condition 5 required a payment per capita of slaves and others in such establishment, while condition 6 required strict adherence to the Abolition of the Slave Trade Act 1807 (described as a Bill of the English Parliament), on pain of forfeiture of the jouissance as well as of confiscation of the objects used in the establishment. Condition 7 required the produce of the establishment to be imported exclusively to Mauritius, on pain of confiscation of the value of articles taken elsewhere and of forfeiture of the jouissance.
 
6.	The nature of land tenure in Mauritius and its dependencies became a matter of concern to the colonial authorities, and a number of reports and regulations (approved by the Governor in Executive Council), leading up to the 1874 Ordinance to which reference has already been made, illustrate the mischief at which the 1874 Ordinance was directed: 

(1)  Regulations of 26 January 1853 directed, inter alia, that Crown lands “… shall be sold in perpetuity, or leased at the discretion of the Governor, but may not be alienated from the Crown by free grants” and in paragraphs 22, 23 and 24, under the heading “Existing Jouissances”, said that

“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 1 June 1863 the Surveyor General of Mauritius reported to the Colonial Secretary on the “unsatisfactory nature of the tenure of existing concessions” in the dependencies of Mauritius and the “great loss of revenue to the Colony consequent upon such tenure and the absolute necessity for reformation”. While he mentioned the St Brandon Islands, their value for fishery and the presence of fishing establishments on them, he does not appear to have been aware of the 1820 jouissances relating to them (or he would presumably have mentioned them specifically, as he did in the case of other islands). 
(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 12 July 1872 five Commissioners were appointed to make an enquiry into the extent, tenure and management of Crown Lands in the colony, and their eventual Report constitutes Appendix No. 1 to Minutes No. 3 of 1874 of the Governor’s Executive Council. Chapter II of the Report dealt with the then existing forms of tenure of Crown land and paragraph 3 of the Chapter with Jouissances.  After referring to the requirement in the 1864 Regulations for jouissances to be exchanged for grants in perpetuity or leases, the Commissioners commented that “… there are still in existence, a large number of grants of this class” and that “it would appear that the intention of the authorities in making this provision has not been fully understood”.  They urged upon the Governor

“… 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.”

7.	The 1874 Ordinance, enacted on 20 November 1874 “… to make better provisions for the protection and disposal of Crown lands …” (see the recital to the enactment) was, we would infer, a response to the Commissioners’ Report and the concerns expressed in that Report. Clause 44 and Schedule A of the Ordinance expressly repealed “all parts of Colonial Laws, …. , Proclamations, Notices and Ordinances which may be contrary to or inconsistent with” its provisions, and so replaced the previous Regulations.  It is necessary to refer to a number of the Ordinance’s paragraphs.  It is convenient to do so in the order in which they appear in the Ordinance.
(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.   

8.	We note that a draft of the proposed Ordinance had a first reading in the Governor’s Council on 4 August 1874 and was then published in French – it may well be because it had been seen and considered by the Council in that language - in the Government Gazette of 15 August 1874.  Paragraph 27 of this draft, which became section 26 of the Ordinance, refers to “des concessions perpétuelles ou des baux permanents” whereas section 26 refers to “permanent grants or leases”.  We will return later to consider what, if any, significance should be attached to this linguistic difference.

9.	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 4 September 1900, M. Louis Souchon, apparently the then owner of the jouissances relating to Iles Boisées and the six islands, sold the jouissances to the St Brandon Fish & Manure Co. Ltd. Under a second deed dated 20 September 1900 The Mauritius Cooperative Engrais Chimiques Co. Ltd., acting as owner of the remaining three jouissances, sold these to the St Brandon Fish & Manure Co. Ltd., which thus acquired all five groups of the St Brandon Archipelago. The Colonial Government was asked to give its consent to such sales, and on 19 October 1900 notified the purchaser company that it had no objection to the transfers provided that (in translation) “the jouissance which the said company possesses of the above islands and islets be converted in accordance with section 26 [of the 1874 Ordinance] into a permanent lease”.  The Government’s requirement was accepted by the purchaser company and led to the Deed of 11 October 1901.  The Deed, described as a “permanent lease by the Colonial Government to the St Brandon Fish & Manure Company Limited” was executed on behalf of the government by the Surveyor-General, M.de Coriolis, who on the government’s behalf ratified the two September 1900 sales to the purchaser company.  The Deed formally declared that

“… 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 2 October 1901. 

10.	The Deed contained also the following relevant provisions –
1)	The company was to export to Mauritius all guano found in the islands and islets and pay a royalty of 5 rupees for each tonne delivered.
2)	All products of the islands and islets (including, it is common ground, fish) were to be delivered to Mauritius.
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 11 October 1901 deed.
The Deed was duly registered in Mauritius on 15 October 1901. 

11.	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 M. Ulcoq.  In 1928 the appellant, The Raphael Fishing Co. Ltd., purchased those rights and interests from M. Ulcoq.  The sale to M. Ulcoq and the sale to the appellant were duly approved on behalf of the Colonial Government and, from at least 1929 until the advent of the respondent M. Talbot in 1995, The Raphael Fishing Co. Ltd., in right of their title under the 1901 deed, enjoyed what was described as the “exclusive, apparent, peaceful occupation” of the six islands and the Iles Boisées.

12.	However, in June 1995, Mme Marie Anne Bétuel purported to sell to M. Talbot shares in the jouissances relating to the six islands (35 out of 1536) and to the Iles Boisées, (35 out of 756), to which shares she claimed to be entitled.  The deed of sale was transcribed at Vol.3131 Number 52 at the Registry of the Conservator of Mortgages in Mauritius.  In August 1995, acting in reliance on his purchase from Mme. Bétuel, M. Talbot landed on one of these islands, Lavocaire, and put in place signposts reading “Terrain Privé Accès Interdit R.Talbot”.  He informed an employee of the appellant that he had become the owner of Lavocaire island and of five other islands as well.  These events led to the institution by the appellant company (on 11 August 1995) of proceedings against M. Talbot with the State of Mauritius as a co-defendant.  The relief claimed was a declaration upholding the rights purported to have been granted by the 1901 Deed and a permanent injunction prohibiting M. Talbot from interfering with the appellant’s possession of the islands listed in the 1901 Deed.

The litigation
13.	The action was heard by Balgobin J who gave judgment on 24 June 2003.  The nature of the parties’ cases before her (reflected in written submissions put in after all the evidence) is worth note. M. Talbot, as first defendant, argued that there was no proof or record of approval of the 1901 Deed by the Procurator General in accordance with point (5) mentioned in paragraph 41 above and, in any event, that the concept of a permanent lease was inconsistent with the Civil Code, and that the 1901 Deed must be treated as creating a lease for 99 years (expiring in 2000). The State, as co-defendant, took a position in stark opposition to that which it now contends flows inexorably from the Code Civil. It accepted that a permanent lease “was a perfectly legal concept that had been enacted in our law at a certain time and as such had all the legal implications attached to it in the context of the provisions of Ordinance No. 18 of 1874”; and it went on to mount an argument (not now pursued) to the effect that section 26 of the 1874 Ordinance had been “impliedly repealed” at some time between 1927 and 1981, so that the possibility of a “permanent lease” had ceased to exist, and for that reason the 1901 Deed had now to be treated as creating a lease for no more than 99 years. The background to this argument was that the 1874 Ordinance (as amended in presently irrelevant respects) became the Crown Lands Ordinance, Cap. 224 of the consolidated laws of Mauritius. At the date of an amendment effected in 1927, sections 25 to 27 appeared renumbered as sections 18 to 20. They continued so to appear in a consolidated version of such laws (prepared for convenience, and not having any particular legal effect) in 1971. However, the Revised Laws of Mauritius of 31 December 1981 simply omitted section 19 (formerly 26), replacing it with a dash. Hence the suggested implied repeal.

14.	 Balgobin J considered that the Procurator General’s approval could safely be inferred from the involvement of other representatives of the Colonial Government both in 1901 and again in 1928 when the appellant, The Raphael Fishing Co. Ltd., acquired its title. But, when the case came on appeal, the Court of Appeal did not accept this, saying that “the appellant could not produce any evidence of such approval having been obtained”. After over a century without the point ever having been taken by the Government or anyone, that inability does not seem to us surprising. There is good sense and justice in the presumption of legality, often encapsulated in the maxim omnia rita acta esse praesumuntur and well known to the law of Mauritius, and that presumption is in our view clearly applicable here. Mr Cox QC for the State, rightly, did not seek before the Board to make anything of the point, and we consider that Balgobin J reached the right conclusion upon it. 

15.	Balgobin J also accepted that the two September 1900 sales to the St Brandon Fish and Manure Co. Ltd., the conversion in October 1901 of the jouissance into a “permanent lease” and the sale in 1928 of the “permanent lease” to the appellant had all been approved by the Colonial Government.  She mentioned, but, rightly in the our view, does not appear to have been impressed by the suggestion of implied repeal of section 26 (later 19) of the 1874 Ordinance. She said, however, that 

“… 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.

16.	The learned judge noted that the appellant had proved “its continuous and uninterrupted occupation of St Brandon since 1929 by oral and documentary evidence” and that M. Talbot’s evidence was “far from showing his vendor’s or the predecessors of his vendor’s continuous or even periodical occupation of the islands mentioned in his title deed since 1929.”  But in view of her conclusion that the most that the appellant company could claim from the grant in 1901 of a “permanent lease” was a term of 99 years, a term that would have expired in 2000, she declined to grant the declaratory relief sought by the appellant but, somewhat inconsistently if we may respectfully say so, granted a perpetual injunction prohibiting M. Talbot from interfering with the appellant’s possession of the islands mentioned in the 1901 Deed.

17.	The Raphael Fishing Co. Ltd. and M. Talbot (in respect of the grant against him of the permanent injunction) appealed.  Both M. Talbot and the State of Mauritius also gave notice of intention to resist The Raphael Fishing Company’s appeal.  The appeals were heard together in November 2004 before the Hon. K.P. Matadeem and the Hon. P. Lam Shang Leen JJA. In written submissions of 27-28 October 2004, the parties’ stances were reversed: M. Talbot now submitting that “s.19 of the Lands Ordinance 1874 which allowed permanent leases is no more in force” and the State arguing that the concept of a permanent lease was alien to the law. But in oral submissions on 1 November 2004 both M. Talbot and the State argued for the latter proposition and submitted that the 1901 Deed therefore granted no more than a 99 year lease. It was the appellant company who through counsel in written and oral submissions argued that, if the 1901 Deed could not confer a permanent right as stated, the consequence would be its complete nullity, rather than a restriction of its term to 99 years. 

18.	A single judgment was delivered on 30 May 2005.  The appellant company’s appeal was dismissed, M. Talbot’s appeal was allowed and the injunction that had been granted by Balgobin J was discharged.  During the oral submissions, the Court of Appeal, rightly, indicated that there was nothing in the proposition that section 26 had been impliedly repealed, explaining it as containing transitional provisions that had served their purpose and become caduc (hence the dash in place of section 26 in 1981). Neither respondent has suggested the contrary before the Board. But the learned judges of appeal took the view that the adjective “permanent” in the words “permanent grants or leases” in section 26 of the 1874 Ordinance applied only to “grants” and did not apply to “leases”.  Any other interpretation, they said, would be inconsistent with the general principles of the law of Mauritius regarding leases.  They disagreed, however, with Balgobin J’s opinion that the “permanent lease” that the 1901 Deed had purported to grant could be treated as a grant for a term of 99 years.  They took the view that

“… 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 27 July 2006.

19.	The appeal came before the Board on 24 and 25 October 2007.  Two issues were addressed by counsel, first, whether section 26 of the 1874 Ordinance authorised the grant of a permanent lease and, second, whether the purported grant of a permanent lease pursuant to section 26 could be given effect as a lease for a term of 99 years or a lease of some other period (see para. 6 of the First Respondent’s Case).  In the course of argument, however, it was suggested by the Board that a further issue arose, namely, whether the 1901 Deed should be given effect as constituting a permanent grant subject, of course, to the several conditions therein referred to, including reverter to the Crown in the event of any breach.  Mr Geoffrey Cox QC, counsel for the State of Mauritius, submitted, with justification, that the implications of that issue needed to be given careful consideration and could not be properly explored without time to do so.  The Board therefore adjourned the appeal to enable full consideration to be given to the new issue and the hearing resumed on Thursday 15th May 2008.  In the meantime the parties prepared additional written cases dealing with the new issue.  The contents of these have been of very great assistance to us.

The issues
20.	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 15 August 1874 (see para. 8 above) suggests that the adjective “permanent” was intended to apply to “leases” as well as to “grants”.

21.	Mr Cox sought before the Board to gain assistance from the consideration that a jouissance, although for an indefinite period, did not itself confer security of tenure. It was, he submitted, no more than a simple right of enjoyment of public land, which, although it might as against third parties be transferable and capable of being mortgaged, could always be revoked by the state on account of some public interest greater than that which had led to its grant: see Pandectes Françaises, Nouveau Répertoire de Doctrine, de Législation et de Jurisprudence (1895) Weiss & Frennelet, Tome 19, Concession Administrative, paras. 47-48 and 115-117.  But, making that assumption, the most obvious purpose of section 26 of the 1874 Ordinance was, as we have already indicated, to confer greater clarity and security of tenure. In this connection, it is also relevant to be bear in mind that a jouissance could not be arbitrarily revoked, and in ordinary practice, it seems likely that the Crown would only recover possession of property the subject of a jouissance, if it could establish some breach of condition. The Commissioners’ Report of 1874 supports this, saying at page 8 that

“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 Land Court, which, setting aside as it does, the deed divesting the Crown, forms its title to such lands.” 

22.	In this connection, Mr Sauzier for M. Talbot also produced before the Board the case of Colonial Secretary v. The Curator of Vacant-Estates and The Heirs Coutanceau [1882] MR 90. The case concerned court proceedings by the Colonial Government to establish breach of the conditions, and so forfeiture, of a gratuitous concession made to M. Coutenceau in 1767: the conditions had obliged him “de mettre le terrain en valeur aux terms des réglements” (meaning, as the court held, that he make a bona fide and substantial settlement on it, clearing and putting under cultivation a considerable part and erecting buildings and placing labourers on it).  That such proceedings were necessary at all illustrates the long-term value of jouissances, unless some ground of forfeiture for breach of conditions or some overriding public interest emerged. The Regulations issued in 1853 and 1864, the Commissioners’ report of 1874, the ensuing Ordinance of 1874 and the very duration of the jouissances granted in 1820 all confirm the long-term value of jouissances to those holding them. This is relevant to bear in mind when considering the intention and effect of the 1874 Ordinance with regard to the conversion of indefinite jouissances into permanent grants or leases.

23.	But Mr Cox has forcefully submitted that the Ordinance must be construed in the context of Mauritian law, that is to say the Civil Code, and that the concept of a permanent lease was simply unknown to the Civil Code.  He relies particularly on Article 1709 of the Code.  As to “permanent grants”, Mr Cox of course accepts that section 26 did empower the Governor to make permanent grants in exchange for jouissances but does not accept that permanent grants could, consistently with the Civil Code, be made subject to conditions of defeasance and reverter to the Crown.  Such conditions could, he submits, form no part of the law of France after the abolition of feudal tenure and would be incompatible with land ownership under the Civil Code.  The 1901 Deed expressly provided for the continuance in force of the several conditions to which the jouissances had been subject and, therefore, must be treated as incorporating the reverter provision that the jouissances had contained.  The concept of a permanent grant subject to those conditions and to the possibility of defeasance and reverter in the event of breach is, he submits, as alien to the Civil Code as is the concept of a permanent lease.  So, submits Mr Cox, the 1901 Deed cannot be treated as constituting a permanent grant any more than it can be treated as creating a permanent lease.

24.	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 United Kingdom legislation relating, for example, to tenancies as to be no longer remarkable.  Mauritius is no different.  The construction of the 1874 Ordinance depends upon the statutory language used and upon the evident intentions of the legislator.  The common law, the Civil Code, is no more than a relevant background and cannot cut down the scope of the statutory powers conferred by the Ordinance.  In our respectful opinion, the judges in the courts below have fallen into error in looking for conformity with the Civil Code rather than for the intentions of the legislator as disclosed by the Ordinance.

25.	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.

26.	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. 

27.	We fully understand and accept the treatment by the French Cour de Cassation in Lemerle C. Suzineau Cass. 20.03.1029 D.1930.1.13 of a purported “permanent” lease as a nullity, rather than as a lease for 99 years. But that was a decision in a private law context where the only framework within which the document could operate was the Civil Code which offered no alternative analysis into which the document could fit. (English law has a similar rule, whereby a lease for an indefinite period is an impossibility, and entry into possession  and periodic payment of rent under a document purporting to create such a lease merely creates a tenancy from period to period of the rent paid: Prudential Assurance Co. Ltd. v. London Residuary Body [1992] 2 AC 386). The approach in a private law context of the civil and common law has in our view no bearing on the present case. Here the relevant document was executed within the framework of the 1874 Ordinance, which requires jouissances to be exchanged for either a (permanent) grant or (on the present hypothesis as to its meaning) a limited term lease, the essential difference between the alternatives consisting only in the difference between an indefinite and a limited term. 

28.	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 [1958] 1 QB 513; Shell-Mex and B.P. Ltd. v. Manchester Garages Ltd.  [1971] 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. 

29.	Moreover, when one looks at the reasoning in Lemerle C. Suzineau one can see that, even in a purely private law context, the civil law is not without flexibility.  The Cour de Cassation emphasised that there was a distinction between “une seule clause illicite qui, à raison de son caractère accessoire, paraître pouvoir disparaître sans que l’économie de la convention en fût atteinte” (a single impermissible clause which, by reason of its secondary character, could be disregarded without affecting the harmony of the whole agreement) and a clause the character of which was essential to the parties’ mutual intention. In the present case, the description of the 1901 Deed as a permanent lease rather than a permanent grant cannot be regarded as essential to the parties’ mutual intention, nor would the harmony of the Deed be disturbed, if the Deed were recognised as giving rise to what was in substance intended by the parties and expressly permitted by the Ordinance, that is a permanent grant.

30.	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. 

31.	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 Balgobin J in this case also suggest that the background of the Civil Code may not be as strong a factor as lawyerly submissions might suggest. The argument that the Executive Council cannot have had a permanent lease in mind because it would be contrary to the ordinary Civil Code diminishes in force when the Council was already doing that by permitting permanent grants subject to continuing conditions. Perhaps the strongest objection to treating a permanent lease as a permissible possibility is that the concepts of permanent grant and permanent lease in section 26 would become effectively indistinguishable. However, if it is right that leases could never be permanent, section 26 clearly provided that grants could be. Since both could be conditional, the distinction between grants and leases would then lie in the single consideration that grants were to be permanent while leases had to be limited in period. This would simply reinforce the conclusion that, because the 1901 Deed was intended to operate permanently, it was in substance and must be in law a grant rather than a lease. 

32.	We would add that if, contrary to our opinion, Mr Cox’s submissions were otherwise correct, the conclusion that the grant purported to have been effected by the 1901 Deed was null and void would, as the appellate judges thought, be inescapable.  If that were so, it seems to us that the jouissances would at the very least have remained valid, would have passed to the appellant company and would have justified both declaratory relief to that effect and a perpetual injunction against M. Talbot. However, on this hypothesis, we would also conclude, in common with the other members of the Board, that it would not be properly open to the State to do anything other than recognise The St Raphael Fishing Co. Ltd’s right to a permanent grant, and that a declaration should on that basis be made declaring The St Raphael Fishing Co. Ltd. to be the holder of a permanent grant of the islands mentioned in the 1901 Deed, subject to the conditions therein. 

33.	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 5 Mai 1807 (Code Decaen No. 141) recognises that certain individuals had by that date acquired jouissances over lands constituting part of the Pas Géométriques of Mauritius, and by that date such jouissances evidently already existed in the St Brandon Archipelago (see paragraph 3 above). As we have also pointed out, the interests conferred by the original jouissances and by the 1901 Deed would have had little or no content, especially when their value lay in fishery, had the Pas Géométriques not been included. Section 1 of the 1874 Ordinance bars a sale of any part of the foreshore, while section 3 provided that Pas Géométriques “may be leased”, on condition that the tenant plant the portion leased with trees within five years (a condition which would again have been no doubt quite inapt in the case of the St Brandon Archipelago). The 1901 Deed did not either effect a sale or take effect under section 3. It effected an exchange of jouissances for the rights which it comprised as authorised by section 26.

34.	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 LORD WALKER OF GESTINGTHORPE

35.	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 Mauritius.

36.	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 1900 the then holders of those jouissances sold their rights to the Société Anonyme St Brandon Fish and Manure Co Ltd (“the St Brandon Company”).  The Colonial Government indicated that it had no objection, “à la condition (entre autres) que la jouissance que possède lad: Société … soit convertie conformément à l’Article 26 de l’Ordonnance No 18 de 1874, en un bail permanent….”  Matters proceeded and on 11 October 1901 representatives of the Government and the St Brandon Company appeared before a notary public.  The deed records that those present

“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 2 October 1901.

37.	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 Mauritius.  Furthermore “les clauses & conditions contenues aux actes de concession de la suds: jouissance sont maintenues dans leur intégralité & lieront la Société … envers le Gouvernement Colonial….”  The company was also to pay the Government an annual sum of one rupee, which was due on 2 October each year.  The deed was to be submitted for the approval of the Procureur Général and was not to have any effect until that approval had been given.

38.	So far as that last provision is concerned, there is nothing in the papers to show that the Procureur Général ever actually gave his approval.  Nevertheless, since the St Brandon Company operated under the deed for many years, in accordance with the usual presumption of regularity, we must proceed on the basis that the necessary approval was indeed given.

39.	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 (“Raphael Fishing”).

40.	It appears that in 1995 one Marie Anna Bétuel sold or purported to sell to the second respondent, Mr Talbot, the “jouissance exclusive” of various islands, including those which are the subject of the permanent lease granted to the St Brandon Company.  When Mr Talbot tried to assert his claim in terms of the jouissance which he had purchased, by a praecipe dated 20 July 1995 Raphael Fishing applied for a judgment inter alia “declaring that the plaintiff is the holder of a permanent lease upon the islands” in question and for a perpetual order in the nature of an injunction against Mr Talbot interfering with its possession of the islands.

41.	At first instance, in a judgment dated 24 June 2003, Balgobin J rejected Mr Talbot’s claim founded on prescription and, on that basis, granted Raphael Fishing an injunction against him interfering with its possession of the islands.  Before doing so, however, the judge had held that the permanent lease granted in 1901 was, in fact, to be construed as a lease for 99 years.  The lease had accordingly terminated on 1 October 2000 and so, on her approach, by the time of her judgment, Raphael Fishing no longer had any rights in relation to the islands.

42.	Mr Talbot accordingly appealed on the ground that the judge had been right to hold that Raphael Fishing had no lease of the islands.  The Company could not acquire any rights over State land by prescription.  It followed that the Company had no right to possession of the islands and, accordingly, had no title to obtain an injunction against him.

43.	For its part, Raphael Fishing appealed against the judge’s decision that its lease had expired in 2000.  The Supreme Court held, however, that a contract purporting to create a permanent lease was void and therefore, for that (different) reason, the plaintiff had no right to possession of the islands.  The Supreme Court accordingly dismissed Raphael Fishing’s appeal and allowed Mr Talbot’s appeal against the grant of an injunction.  The Board granted Raphael Fishing special leave to appeal.

44.	During the proceedings in the courts in Mauritius the State played only a relatively minor part.  Before the Board, however, Mr Cox QC, counsel for the State, took the lead in resisting Raphael Fishing’s claim to a declaration that it was the holder of a permanent lease over the islands.  He explained the State’s position:  either the purported permanent lease granted in 1901 was limited to 99 years and so had expired in 2000 or else it had been a nullity and the jouissances which the St Brandon Company had purchased had never been extinguished.  In the latter event, Raphael Fishing, as the successor to the St Brandon Company, would now have a right to have the jouissances converted into a permanent grant or into a lease in terms of section 26 of the 1874 Ordinance which has never been repealed.

45.	If the question of Mr Talbot’s claim is put on one side, it might be thought that Raphael Fishing’s claim to hold a lease of the islands was straightforward, being based on a deed whose authenticity is not challenged.  A problem arises, however, because the deed of 1901 purports to grant a “bail permanent (permanent lease)” and, in terms of article 1709 of the Civil Code, a lease cannot be permanent, but must be for a certain time:

“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.

46.	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 20 mars 1929, DP 1930 1.13:

“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.

47.	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”.

48.	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.

49.	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.

50.	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.

51.	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.

52.	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.

53.	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.

54.	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.

55.	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.

56.	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”.

57.	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....”

58.	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.

59.	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.

60.	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.

61.	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.

62.	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.

63.	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.

64.	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.

65.	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.

66.	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

67.	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.

68.	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.

69.	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. 

70.	Accordingly, I, too, would make the declaration and injunctions proposed in the two preceding judgments.

LORD SCOTT OF FOSCOTE

71.	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.