Supreme Court of Mauritius, 10 mars 2020, 2020 INT 70 – ABDOOLAH EMAMBOCUS V WW FIROZA JANOO AND ANOR

1 ABDOOLAH EMAMBOCUS V WW FIROZA JANOO AND ANOR

2020 INT 70

CN:- 972/17 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Abdoolah Emambocus Plaintiff v/s 1. Ww Firoza Janoo 2. Safeek Janoo Defendants JUDGEMENT In the proecipe dated 08 April 2019, the plaintiff is averring that he is the owner of a portion of land, situate at Royal Road, Plaines des Papayes as more fully described in the proecipe and that the defendants, who are the co-owners in usufruct and bare ownership of a plot of land adjoining the land belonging to the plaintiff, have encroached on his land and have caused other structure to be built on the boundary line without observing the distance prescribed by law, as more fully described in the plaint. It has further been averred that initially it was Wahed Janoo, the legal husband of defendant no 1 and the father of defendant no. 2 who had, during his lifetime, illegally and without any right and title, encroached on plaintiff’s land and had caused the structures to be built without observing the statutory distance. The said Wahed Janoo then sold the said property to defendant No. 2 whilst reserving the right of usufruct to defendant no. 1. After the death of the death of the said Wahed Janoo, the defendants have continued and are still occupying the said portion of land and have failed and neglected to comply with a notice mise en demeure which had been served on Wahed Janoo regarding the above. The plaintiff is therefore praying for an order from this court condemning and ordering the Defendants: (a) To pull down or cause to be pulled (i) the said concrete wall and (ii) the concrete toilet/found on the area of 5.00 m²; (b) To pull down or caused to be pulled down the garage; (c) To reinstate the Plaintiff's land to its original state;

2 (d) To remove and caused to be removed the absorption pit and its discharge structures; (e) To observe the distance prescribed by law; (f) Not to interfere in anyway whatsoever in respect of Plaintiff's right and peaceful use and enjoyment of Plaintiff's land; (g) To pay to Plaintiff the sum of Rs. 300,000 as damages for prejudice suffered.

The defendants have denied the averments in the plaint and have averred that the constructions date to more than 30 years back and thus the present action is time barred. They have further averred that the constructions were made with the plaintiff’s consent. As far as the absorption pit is concerned, they have averred that same does not exist. They have further taken note that a notice mise en demeure was served on the said Wahed Janoo but have averred that they were under no obligation to comply with the said notice. The defendants therefore move that the plaint be set aside with costs.

I have duly considered all the evidence adduced by both parties as well as the submissions of counsels. I do not propose to reproduce the evidence on record as it consists of numerous pages.

Analysis The plaintiff is relying heavily on the report of SLS Nuckchady to establish the extent of encroachment by the defendants. Such report is however being challenged by counsel for defendants who submitted that the report cannot be relied upon as Mr. Nuckchady failed to summon the adjoining owners for the survey of the land in lite, in breach of section 9(1)(a) of the Cadastral Survey Act (hereinafter referred to as the “CSA”), the relevant part of which, reads as follows:

“9.Summons or notice to adjoining owners (1)(a) Subject to subsection (2) and section 11 1 , no land surveyor shall for any purpose survey a plot of land which adjoins the plot of land of another person, unless the owner of the adjoining plot of land is present at the survey or has consented in writing to the survey being made in his

1 11.Survey to determine extent of plot of land (1)Subject to subsection (2), sections 9 and 10 shall not apply to a survey of a plot of land made at the request of its owner for the sole purpose of determining its extent. (2)No memorandum of survey shall be drawn up in connection with a survey made under subsection (1). (3)A survey report of the determination of the extent of a plot of land under subsection (1) shall –

3 absence, or has been summoned to attend the survey but has failed to do so. […]” Mr. Nuckchady admitted in court that he did not summon all adjoining parties for the survey and the reason for which he did not do so has not been provided to the court. It is however clear from the record is that by failing to summon all the adjoining owners, Mr. Nuckchady not only acted in breach of the provisions of section 9 of the CSA but he also acted in breach of section 10 of the CSA in the given circumstances.

Section 10 of the CSA provides as follows:

“10.Owners to produce title deeds (1)Every land surveyor shall, before making a survey under section 9, call upon every owner of an adjoining plot of land who is present to produce his title deed. (2)Where the owner of an adjoining plot of land who is present at a survey refuses or is unable to produce his title deed, the land surveyor shall record his refusal or inability, as the case may be, in the memorandum of survey. (3)A memorandum of survey shall be drawn up in one original and be signed by the land surveyor who shall affix his seal or stamp to the memorandum.

By failing to comply with the above provisions of the law this court finds that Mr Nuckchady did not carry out a proper ground work before effecting his survey. The purpose of having the adjoining owners to produce their respective title deeds is indeed to ascertain the boundaries of the property being surveyed before effecting the survey. In the present case this has not been done.

In addition to the above, I note that, as per the report of SLS Nuckchady, Messrs Waheed Janoo and Alim Janoo, who were duly summoned but absent for the survey, were served with a summons to attend survey only on the 06.01.14 by an usher of the Supreme Court when the survey was carried out on the 08.01.14. Section 9(1)(b) 2 of the CSA however provides that such summons ought to have been served on the adjoining owners “not less than 14 days before the

(a)be drawn up in one original and be signed by the land surveyor who shall affix his seal or stamp to the report; and (b)not be binding on the owners of the adjoining plots of land.” 2 Section 9(1)(b) reads as follows: A summons under paragraph (a) shall, subject to paragraph (c), be served personally by an usher upon the owner of the adjoining plot of land not less than 14 days before the survey is to be carried out.

4 survey is to be carried out”. This court therefore finds that Mr. Nuckchady did not comply with the requirements of the law yet again.

Considering the above breaches of the law, this court is doubtful whether full weight should be attached to the survey report of Mr. Nuckchady or whether same should be disregarded. It worth noting that under the Land Surveyors Act 1976 (some provisions of which have been repealed and replaced by new provisions in the CSA, notably sections 9, 10 and 11 of the CSA), section 11(6) stipulated that “Where a land surveyor has contravened section 9 or 10 or any provision of this section, the memorandum of survey shall be null and void.” The provisions of sections 9 and 10 of the Land Surveyors Act were similar in essence to the provisions of section 9 and 10 of the CSA and previously non-compliance with such provisions of the law was fatal.

In the case of Roopnarain G A v Roopah P K [2011 SCJ 210], the Learned Judge explained that “The rationale behind section 11(6) of the Act rendering the survey void on account of the non-compliance of section 9 is in conformity with the provision of our Constitution regarding the protection of the fundamental rights of the individual from the deprivation of property. It must not be overlooked that the purpose of having one’s land surveyed is precisely to know the exact extent of one’s property, no more and no less. To be able to know that, the fixing of the boundaries is necessary to demarcate one’s property from those of the contiguous owners. It is in that spirit that the law makes it incumbent on a land surveyor to make sure that the adjoining neighbours, if any, are present at the survey, irrespective of whether there is a dispute between any one of them regarding his boundary and the owner of the land which is being surveyed.”

It is to be noted that section 11(6) of the Land Surveyors Act has been repealed by the CSA and has not been replaced. Thus it is now left to the discretion of the court to decide on the weight to be attached to a survey where same has been carried out in nonconformity of the law. I wish to highlight at this juncture that I am of the view that the rationale behind sections 9 and 10 of the CSA remains “the protection of the fundamental rights of the individual from the deprivation of property” as enshrined in our Constitution and that “It is in that spirit that the law makes it incumbent on a land surveyor to make sure that the adjoining neighbours, if any, are present at the survey, irrespective of whether there is a dispute between any one of them regarding his boundary and the owner of the land which is being surveyed.”

Bearing in mind the above therefore and the cumulative effect of the various breaches of the law, I find that it would not be safe for this court to rely on the survey report of SLS Nuckchady.

Counsel for the defendant has further argued that the present action is time barred in as much as the impugned constructions were made more than 30 years back with the consent of the plaintiff.

However, after assessing the whole of the evidence on record, I find that it could not be ascertained from the parties at what point in time the constructions were made by the defendants and whether same had been effected more than 30 years back. Furthermore, although the plaintiff admitted in cross examination that he did not disturb the said Wahed Janoo when the latter caused the said constructions to be effected, he also stated that he did not do so at that point in time as he thought that late Wahed Janoo was constructing on his own land and that it was only when his land was surveyed that he became aware of the encroachment.

Taking into account the tenor of the evidence on record and the fact that, ex facie the pleadings, the plaintiff appears to have an arguable case, the more so when defendant no. 1 has admitted in court that there may have been an encroachment on the land of the plaintiff, I find that the best course to take in the given circumstances is to non-suit the plaintiff so that he is given the opportunity to come anew with the present case with a valid SLS report if he so wishes. I therefore invite the plaintiff to choose for a non-suit or for a dismissal of the plaint in line with section 95 3 of the District, Industrial and Intermediate Courts Rules 1992.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 10 March 2020

3 Section 95: No appeal can be had of nonsuit; but when the Magistrate can nonsuit the plaintiff or give judgment for the defendant, the plaintiff shall have a right to elect to have judgment finally given against him, so that he may appeal.