UKPC 19
Privy Council Appeal No 0109 of 2010
Li Chen Ling Kaw (Appellant) v Societe Piang Sang Pere et Fils and Chong Fee Ng Wong (Respondents)
From the Supreme Court of Mauritius
JUDGMENT DELIVERED BY
23 May 2012
Heard on 27/28 March 2012
(Instructed by M A Law (Solicitors) LLP)
Mr Nandklshore Ramburn
Miss Kamlesh Domah
(Instructed by Simons Muirhead and Burton)
The origin of the dispute
"That I am now living separately with my wife. That she has taken over my whole business because of my ill-health."
"2. The defendant is occupying the commercial premises forming part of the said building as tenant thereof for and in consideration of a monthly rent of Rs 550.
3. The defendant is indebted to the plaintiff in the sum of Rs 17,050.00cs representing rent due for the months of September 2001 to March 2004 inclusively.
4. Should the defendant deny the said lease and same cannot be proved, then plaintiff claims the said sum of Rs 17,050.00cs as indemnity for use and occupation of the said premises for the above mentioned period.
5. Although often times requested to pay the sum of Rs 17,050.00cs and to vacate the said premises for non-payment of rent, the defendant has so far failed and neglected so to do."
The present proceedings
"Chaque époux peut librement exercer une profession, percevoir ses gains et salaires et en disposer après s'être acquitté des charges du mariage."
It was also submitted that the second respondent's affidavit in the bankruptcy proceedings clearly showed that he had not been the tenant of the premises since 15 July 2004 and neither he nor the appellant were indebted to the first respondent in any sum whatsoever. For the respondents it was submitted that, as there was no mention of any written agreement between the parties, the case was concerned with a statutory tenancy under the Landlord and Tenant Act 1999 in respect of commercial or trade premises. It was clear that the second respondent was the person who held the trade licences, that he was the person occupying the premises for the purposes of his trade and consequently that he was the tenant of the premises. In the situation where a spouse helps his or her spouse tenant in the running of a business, the irresistible inference was that there was only one spouse tenant. The appellant could not be a trader as she had never held a trade licence in her name, and the first respondent could not let premises for business or commercial use to a person who did not hold a trade licence.
"Whilst it appears on record that respondent no 2, in an oral plea, accepted having reached an agreement in fraud of the rights of the appellant, the general tenor of the plea is that the business had gone under, and the rent not paid since many years. Although we tend to agree that the learned magistrate could have been more explicit in his conclusions, we are unable to say that ex facie the plaint the tenancy had been transferred solely to the appellant."
Leave to appeal to the Judicial Committee
"Lorsque le tiers ne démontre pas l'existence d'un préjudice, la tierce opposition formée doit être déclarée irrecevable pour défaut d'intérêt….De même, lorsqu'un local d'habitation est occupé par deux époux et que le propriétiare a fair jouer la clause résolutoire du bail à l'égard du mari seul pour défaut d'occupation, la femme n'est pas recevable à former tierce opposition à l'ordonnance de référé qui a ordonné l'expulsion de son mari et de tous occupants de son chef."
The Supreme Court did not express any opinion on this issue, perhaps because it thought that it was unnecessary to do so as it was of the view that the appellant's case that she had an interest that would support her claim for a "tierce" opposition did not appear ex facie of the plaint.
"Chacun des époux a le pouvoir d'administrer seul les biens communs et d'en disposer, sauf à répondre des fautes qui'il aurait commises dans sa gestion. Les actes accomplis sans fraude par un conjoint sont opposables à l'autre.
L'époux qui exerce une profession séparée a seul le pouvoir d'accomplir les actes d'administration et de dispositions nécessaires à celle-ci.
Le tout sous réserve des articles 1422 à 1425."
She submitted that the position since 1999 has been that, where both spouses are acting jointly in the conduct of their business, one spouse cannot surrender it behind the back of the other. The Board accepts that conduct of that kind is sufficient to show that there was "fraude" within the meaning of the article. The word "fraud" is normally understood, in the context of the common law, to mean a contrivance to deceive. That is why, when the word is used in the sense of something that is done with that intention, the fraudulent act must be distinctly charged and its details specified. But in the context of article 1421 its meaning can extend also to conduct amounting to an abuse of rights. This is what the appellant is alleging here. So it cannot be said, at least at this stage, that she has no right to object to the agreement that the second respondent entered into because he validly represented her interests too when he undertook to vacate the premises.