The Writ Habere Facias Possessionem (WHFP) is a powerful legal mechanism rooted in Mauritian law, designed to grant immediate possession of property to a party with a clear legal entitlement.
While it draws from English law, it shares similarities with the French référé, offering a streamlined process for reclaiming property, typically through ownership established by title deeds or court judgments (Partnership Mungur Frères v Mungur [1963 MR 100]).
Procedure
A WHFP application is an inter partes procedure initiated by way of a proecipe and affidavit before the Land Division, heard by a Judge in Chambers, before the Supreme Court of Mauritius. Exceptionally, For a proecipe of a WHFP, there is no requirement to provide a specific section of the law as per the Supreme Court (Judge in Chambers) Rules 2002. From section 3 of the Landlord and Tenant Act 1999 as amended, the scope of application of a WHFP can be inferred to be only for furnished residential and business premises.
Respondent’s case: Serious and Bona Fide defence
Once the applicant establishes ownership, the respondent must present a serious and bona fide defence, that is either a droit de rétention or droit de superficie. (Vide C. Bonarien v L.R. Loloth [1998 MR 26]): In Gujadhur v Reunion Ltd [1960 MR 208], the Court held that a party with a clear title should be granted the writ unless the respondent provides substantial evidence to support a legitimate defence.
Droit de Rétention
The droit de rétention is a real right, enforceable against all, including third parties (Vide Saulick S. v Seeburn S. & Anor [2023 SCJ 351]). For this defence to succeed, the following conditions must be met (Bonarien (supra)):
* The claimant must detain the property.
* There must be an existing debt for which the claimant is owed payment.
* The claimant must act in good faith.
* The debt must relate to the property in question.
However, improvements made for the tenant’s convenience do not justify a droit de rétention (Coolen S. v Meunier A. [2022 SCJ 385]). Where lease agreements specify the fate of improvements, the defense is invalid under Article 1134 of the Mauritian Civil Code (Zaragoza v Madeleine [2001 SCJ 41])
Droit de Superficie
The droit de superficie allows the superficiaire to claim rights over constructions made on land owned by another party (the tréfoncier). A claim arises if the construction was carried out with the knowledge and without protest from the landowner (Mamode Cassim Amanuth (Poudre d’Or Mosque) Waqf v. S. R. G. Koreeawa [2024 SCJ 170]).
Delay
Delay for a WHFP is not per se fatal to the application. In Pavadi v Choyta [2008 SCJ 243], the Court held that delay alone does not bar the issuance of a writ, though it remains a consideration and factor for the Court to assess.
Novel issues
A lease agreement can be verbal or written. If a written lease agreement is one of indeterminate duration, a notice of termination is perfectly valid if it complies with Article 1736 of the Civil Code Mauricien. There is therefore no need to give an extension/ congé. If the lease agreement is silent on the duration, then the Applicant shall give a congé via a notice of termination. (Vide Japa Motors Ltd v Fazil Hosenbocus & Another [2024 SCJ 108]). In Jetha Victoria & Co Ltd v Ebenisterie Alladee & Co Ltd [2024 SCJ 22], the Court referred to Fabrique de St. Jean v P. Calcutteea [1999 SCJ 275] where it was held that a verbal lease agreement for an undetermined duration would come to an end after the lessor has given notice to quit to the lessee in accordance with “les délais fixés par l’usage des lieux”. The Court concluded that article 1736 is applicable and that the 3 months’ notice given was adequate.
Conclusion
The WHFP is a legal remedy designed to protect rightful owners from protracted and costly litigation, especially when facing a respondent with no serious defense beyond mere occupation. By understanding the procedural requirements, the burdens of proof, and potential defenses, parties can navigate the complexities of reclaiming property more effectively.
For informative and educative use only. Not Legal Advice
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