Supreme Court of Mauritius, 19 mars 2020, 2020 INT 56 – L. D. Gow & Anor v The Syndic of Residence Les Flamants A. Choychoo

1 L. D. Gow & Anor v The Syndic of Residence Les Flamants A. Choychoo

2020 INT 56

CN306/2018 THE INTERMEDIATE COURT OF MAURITIUS

(CIVIL) In the matter of: –

1. Leonard Duncan Gow 2. Marie Jacqueline Gow Plaintiffs v/s

The Syndic of Residence Les Flamants, Akram Choychoo Defendant JUDGMENT

1) The plaintiffs aver that they are the co-owners of an apartment of 129.92 square metres (“m2”) in Residence Les Flamants with a quote-part of 87/1000eme (TV4164 No.2) and the defendant is the Syndic of Residence Les Flamants. They have the exclusive enjoyment of the free space at the entrance of the garage and at the rear of the building of an extent of 34m2. They gain access to their apartment and garage only through a tarred entrance between their property and a wall. On 14 January 2013 back from the United Kingdom they noticed substantial and unauthorised changes as per Mr S. Roopun’s rapport de constat (flower box and uplifted step narrowing their entrance, 11 water meters encased in cement and nine electric pumps at the basement of apartments adjoining theirs being an eyesore, tarring works to place water pipes leading to the meters causing flooding during heavy rainfall). The defendant has failed and neglected to take any remedial action in spite of their letter dated 13 March 2013. The defendant’s unlawful acts and doings amount to faute which has and is still causing them prejudice which they estimate at Rs300,000. They therefore pray for a judgment condemning and ordering the defendant to remove the flower box, additional step, 11 water meters encased in cement and nine electric pumps, to reinstate their entrance to their garage and the steps by the side of their apartment to their original state, to reinstate the tarred road conveniently to

2 avoid their terrace being flooded during heavy rainfall and to pay them Rs300,000 as damages, with interest and costs.

2) The defendant admits the plaintiffs’ ownership of the property and denies the other material averments in the plaint. The defendant avers that the plaintiffs have never been prevented from the exclusive enjoyment of their share in the parties privatives of their property, their title deed does not refer to any entrance to the garage and as they do not own any motor vehicle in Mauritius, the issue of parking in the entrance does not arise. The defendant therefore moves that the plaint be set aside, with costs.

3) On the day of trial, 27 February 2020, the court refused to grant the motion for postponement of Mr A. Ramdhian, counsel for the defendant, because of the absence Mr A. Choychoo as the trial had already been postponed twice, once on 9 October 2019 because counsel was laid up and once on 3 December 2019 because Mr Choychoo was unwell and had gone to the hospital. Mr Choychoo failed to file a Medical Certificate in spite of an undertaking to do so. On 3 December 2019 the court granted a last postponement and put on record the caveat that if on the next occasion counsel for the defendant or the representative of the defendant could not be present, they should be replaced failing which the court would allow the plaintiffs to proceed with their case. It is to be noted that Mr Ramdhian informed the court that Mr Choychoo thought the trial was fixed to 28 February 2020 and that he (Mr Ramdhian) had informed Mr Choychoo of the correct date of trial, that is, 27 February 2020. Mr Choychoo was still absent on 27 February 2020 without any valid reason to justify such absence.

4) Plaintiff no.2 deposed also on behalf of plaintiff no.1 to the effect that they own lot 333 of Les Flamants at Pereybere and have jouissance exclusive of 34m2 (Documents A and B) but this is not the case today because the entrance to their garage has been narrowed by flower boxes, added step and water meters encased in cement opposite their veranda, (Documents C, C1 to C5). The flower boxes are on the right where all the steps have been added in front of the terrace. The pumps which have been placed outside the front room are always flooding, causing the appearance of pests, and they run continuously at night. The water meters and pumps are for apartments 129 and 104 and she does not know if they benefit the whole lot: they are unsightly at the side of her property. They bought the property with a garage and an entrance thereto and they do hire a car. They did not give the syndic permission for the additions and the syndic did not ask for permission or inform them of the changes, which they noticed on 3 January 2013 when they arrived. They wrote a letter dated 13 March 2013 to the syndic to

3 remove all the impediments (Document D), but the syndic has never remedied the situation. In 2017 they retained Mr Roopun, sworn land surveyor, to measure the property: he did so and gave them a report. She concluded from the report that there was a discrepancy in the measurement inasmuch as it was reduced to 30m2. The defendant has acted illegally and has caused them prejudice. They are still suffering from the illegality and are asking the court to order that all impediments be removed and for damages of Rs300,000 plus costs.

5) Mr S. Roopun, sworn land surveyor, said that the plaintiffs retained his services prior to 22 May 2013 because they were having problems with their driveway. He surveyed the property in the presence of Mr Choychoo, the representative of the syndic, whom he had summoned (Document E). According to his survey the rear part and the entrance to the garage was only 30m2 instead of 34m2 because of structures added afterwards and the width of the access to the garage was reduced from 3.70m to 2.10m – points X, Y and Z in his plan. The area has been reduced by additions placed after acquisition as per the plaintiff’s declaration, namely the flower boxes and water meters (shaded in red in his plan), the terrace (shaded in blue) added to the initial terrace (shaded in yellow) and the tarred works (shaded in green). He could not differentiate the alterations when he made the constat: it is his clients who told him about the changes.

6) There is no dispute that the plaintiffs are the owners of an apartment of an area of 129.92m2 situated in Residence Les Flamants and contrary to Mr Ramdhian’s submissions that there is no evidence that the parties privatives were of the extent of 34m2 at the time of acquisition, there is a specific mention in the Expedition – Cession de Parts Sociales par la Compagnie Pereyberevil Ltd to the plaintiffs and the Transcription Partage Partiel de la Societe Civile Immobiliere D’Attribution Pereyberevil that the plaintiffs’ property entitles them to the exclusive enjoyment of the free space at the entrance of the garage and at the rear of the building of a total extent of 34m2.

7) There is also no dispute that the defendant is the syndic of Residence Les Flamants.

8) On the rights of the plaintiffs on the 34m2 as provided in their title deed, Article 644-2, al. 2 of the Code civil (prior to the amendment brought about by The Code Civil Mauricien (Amendment) Act 2018, which came into effect on 15 April 2019, Proclamation No.13 of 2018) provides as follows:

4 Sont privatives les parties des bâtiments et des terrains réservées à l’usage exclusif d’un copropriétaire déterminé.

Les parties privatives sont la propriété exclusive de chaque propriétaire.

9) The defendant has not adduced any evidence to challenge the evidence of the plaintiffs that the 34m2 are parties privatives and that they have exclusive enjoyment thereof. Therefore, I find that the plaintiffs have exclusive enjoyment on the 34m2 and the issues are whether the defendant has illegally and unlawfully made alterations to the 34m2 and has interfered with the plaintiffs’ enjoyment thereof.

10) I find that Mr Roopun has not restricted his observations to the width of the driveway being slightly narrowed, but has observed that the existing entrance has become too narrow and inadequate for vehicles and he has also adduced evidence to the effect that the espace libre à l’entrée du garage et à l’arrière du bâtiment destined to the plaintiffs’ exclusive enjoyment and which was initially of 34m2 has been reduced to 30m2. The defendant has not adduced any expert evidence to challenge Mr Roopun’s findings, so that the evidence of the sworn land surveyor has remained unrebutted.

11) I am alive to the fact that Mr Roopun was not aware of the set-up at the entrance to the garage and the rear of the building prior to his surveying the property and that he could not give evidence of any difference, but he has noted the presence of a flower box, a step, 11 water meters and recent tarring works.

12) The case for the plaintiffs that the defendant has illegally placed a flower box and a step with the result that their entrance to their garage has been narrowed, illegally placed 11 water meters and nine water pumps opposite their apartment and illegally caused tarring works with the result that their terrace is flooded during heavy rainfall rests on the evidence of plaintiff no.2. I find that plaintiff no.2 has deposed in a consistent and convincing manner and has substantiated the averments in the plaint that the alterations to their parties privatives have been done without their authorisation and in their absence and without informing them of same. I accept her evidence that the flower box and step have caused their entrance to their garage to be narrowed, that the water meters and pumps opposite their terrace are unsightly and that the tarring works cause their terrace to be flooded during heavy rainfall.

5 13) I find that the fact that they do not own a car completely irrelevant inasmuch as they purchased the apartment together with the garage and therefore are entitled to the exclusive enjoyment of the garage and have to be able to easily access same. The defendant has not adduced any evidence to the effect that the absence of a vehicle would preclude the plaintiffs from using their garage or the entrance thereto. It is to be noted that the plaintiffs have pointed out in the Answer to Particulars that they are provided with a car and that plaintiff no.2 has said that they hire a car whenever in Mauritius. The defendant has not adduced any evidence to challenge the plaintiffs’ version in relation to the use of their garage and the entrance thereto.

14) I further find that Mr Ramdhian’s submissions that the water meters and pumps service other apartments and are for the benefit of the other co-owners are not based on any evidence since there is no admission from plaintiff no.2 to that effect and the defendant was not present or represented in court to give evidence. Besides, even if there had been evidence to that effect, this would not justify their being placed opposite the plaintiffs’ apartment during their absence and without their knowledge.

15) It is to be noted that the defendant has not averred or adduced any evidence of the holding of an assemblée générale where alterations to parties privatives attached to the plaintiffs’ property were voted or that the plaintiffs were informed of any such assemblée générale, were present and did not object to the said alterations.

16) In the light of all the above I find that the defendant has illegally and unlawfully caused or allowed the alterations to the 34m2 which are for the exclusive enjoyment of the plaintiffs as per their title deed and has therefore interfered with their exclusive enjoyment thereof, which amounts to faute.

17) I find that the plaintiffs have established that they have suffered prejudice by the alterations since those were made or allowed without their authorisation and in their absence and that such alterations interfere with the enjoyment of their whole property.

18) In the circumstances, the plaintiffs are entitled to the prayers at paragraph 12(a) and (b) of the plaint and to damages.

19) The plaintiffs are claiming Rs300,000 as damages for the prejudice suffered. At Answer 8 of the Answer to Particulars they said that the sum was a “reasonable estimate” (sic) for the

6 prejudice they suffered. The two words convey the fact that the plaintiffs did an approximate calculation of the prejudice they suffered. As I said earlier they have suffered prejudice by the acts and doings of the defendant, namely additions and alterations made to their property in their absence and without their authorisation, but I find that they have not substantiated the sum claimed. I find that a sum of Rs50,000 would adequately compensate the plaintiffs for the prejudice suffered.

20) The plaintiffs have claimed interest in their plaint. However, I note that plaintiff no.2 has not asked for interest when deposing in court. In the circumstances, I do not allow any interest. In any event, I find that the claim for interest is not substantiated.

21) For all the reasons given above I find that the plaintiffs have proved their case against the defendant on a balance of probabilities and I accordingly order the defendant (a) to remove (i) the flower box opposite the plaintiffs’ apartment in the entrance to their garage, (ii) the additional step added to the existing steps, (iii) the 11 water meters and blocks of cement encasing them, (iv) the 9 electric pumps installed at the basement of apartments numbers 129 and 140; and (b) to reinstate (i) the plaintiffs’ entrance to their garage to its original state, (ii) the steps by the side of the plaintiffs’ apartment to their original state, (iii) reinstate the tarred road conveniently to avoid the plaintiffs’ terrace being flooded during heavy rainfall and to pay the plaintiffs Rs50,000 as damages, with costs.

W. V. Rangan Vice-President Intermediate Court

This 19 th of March 2020