Lebon and another v Aqua Salt Company Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann |
| Judgment Date | 04 February 2009 |
| Neutral Citation | [2009] UKPC 2 |
| Docket Number | Appeal No 26 of 2007 |
| Court | Privy Council |
| Date | 04 February 2009 |
[2009] UKPC 2
Privy Council
Present at the hearing:-
Lord Hoffmann
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Mance
Sir Jonathan Parker
[Delivered by Lord Hoffmann]
This appeal arises out of an action for possession of a dwelling house and garage standing on 15 perches of land at Les Salines, Roches Noires ("the house"). The transactions which gave rise to the dispute took place between 1980 and 1983 and the dispute itself goes back to 1984. The trial took place over a number of days between July 2000 and March 2002 and judgment was delivered on 6 June 2002, ordering the defendants to deliver up possession. An appeal to the Supreme Court was dismissed on 27 April 2006. The defendant appeals to the Privy Council.
Some of the facts are obscure, partly because of the deaths of two important participants in the relevant transactions and the fading of the memories of others and partly because some questions were not explored at the trial. What seems clear enough is that in November 1981 Mr Gujadhur Jingree agreed to sell the house to the first Defendant Mr Guy Lebon, who purchased as agent for his step-brother, the second defendant Mr Claude Bonnenfant. Mr Jingree's testimony on the point was unavailable because he died some years before the trial, but Mr Lebon gave unchallenged evidence about the agreement and produced a document dated 28 November 1981, signed by Mr Jingree, acknowledging the receipt from "Guy Lebon de la part de Mr Claude Bonnefant" of Rs 55,000, "représentant la vente d'un terrain de 15 perches avec un maison en ciment…la Saline à Roches Noires. Le contrat sera fait a la fin de decembre 1983."
Equally clear is that Mr Jingree did not have title to the land. However, the land on which the house stood was part of an old salt works covering 9 arpents and 35 perches ("the salt works"), owned at the time by a company called Black Rocks Ltd. Mr Lebon said at the trial that Mr Jingree had shown him a bordereau which he said evidenced an agreement by which he had agreed to buy the salt works. A document was produced purporting to be a sale or agreement for sale dated 27 November 1980 by which Black Rocks agreed to sell the salt works to Mr Jingree and his wife for Rs 250,000, of which Rs 50,000 had been paid. There was much dispute over the authenticity of this document (as to which the judge in the end made no finding) but there seems to be no doubt on two points; first, that, as the judge found, it did not pass title to Mr Jingree and secondly, that there must have been some contractual arrangement between Black Rocks and Mr Jingree, which has been variously characterised as an option to purchase or an uncompleted agreement. The existence of such an arrangement is supported by Mr Lebon's unchallenged evidence that he lent Mr Jingree the Rs 50,000 to pay the first instalment of the price, raising the money by a loan from his bank guaranteed by Mr Jingree. The evidence is not altogether clear but it seems that Mr Jingree must have repaid the loan out of the proceeds of sale of the house.
Presumably the lengthy period which Mr Jingree's agreement with Black Rocks allowed for completion was to enable Mr Jingree to raise the rest of the money to buy the salt works. He did so by finding three other investors: Mr Lim, Mr Toon and Mr Hart de Keating, who agreed to participate with him in the formation of a company to acquire the land. It was called Aqua Salt Co. Ltd ("Aqua") and was incorporated on 15 December 1983 with a memorandum of association declaring that its main object was to produce salt. The share capital of Rs 500,000 was divided into 5,000 shares of Rs 100 each: one Promoter's Share A (allotted to Mr Lim), three Promoters' Shares B (allotted to Mr Toon, Mr Jingree and Mr Hart de Keating) and 4996 Ordinary Shares, allotted as to 1599 each to Mr Toon and Mr Hart de Keating and as to 899 each to Mr Lim and Mr Jingree. The Promoter's Share A gave Mr Lim the right to be managing director and the Promoters' Shares B gave each of the other three the right to a seat on the Board.
On 16 December 1983 Mr and Mrs Jingree executed a document by which they formally renounced their interest in the salt works, declaring that they would have no claim against Black Rocks or against Aqua, which was "due to purchase [the property] very shortly." That suggests the previous existence of a contract of purchase or at any rate a right to buy of which the Jingrees were the beneficiaries. Completion of the sale by Black Rock to Aqua for Rs 250,000 in fact took place on 10 February 1984 by the execution of a notarised deed, which was subsequently registered.
It is not altogether clear what the other shareholders knew of Mr Jingree's dealings with Mr Lebon or even the fact that he and his family were in occupation of the house. It appears from the pleadings in a case brought in the Mapou Magistrates' Court against Mr Lim, the managing director of Aqua, that he was quick off the mark in taking possession of the land comprised in the sale of the salt works. Mr Lebon alleged that on 15 December 1983, two days after the formation of Aqua, Mr Lim put building materials on the right of way by which the occupants of the house obtained access to the main road. On 4 February 1984 he entered upon the land and threatened to demolish the garage which Mr Lebon was building. On 6 February 1984 Mr Lebon commenced his proceedings against Mr Lim personally, asking for an injunction to require him to remove the obstruction from the right of way and to restrain him from interfering with Mr Lebon's quiet possession.
Mr Lim also died before the commencement of the trial, so his account of these events is lacking. It is suggested that Mr Lim must have learned of the sale by Mr Jingree to Mr Lebon from the process served upon him a few days before the execution of the deed of sale in favour of Aqua. But the plaint says nothing about such a sale. It appears to have been carefully drafted to assert no more than a possessory title.
It appears that Aqua retaliated by applying in the Supreme Court for a writ of habere facias possessionem in respect of the house, relying upon the title which it had acquired from Black Rocks. The affidavits sworn in these proceedings were produced at the trial but do not appear to have been made part of the record. Their Lordships are therefore obliged to piece together their contents as best they can from fragments which were read in court and went onto the transcript. Mr Lim swore the founding affidavit dated 20 March 1984; there was an affidavit in answer from Mr Lebon dated 23 May 1984 and a reply from Mr Lim dated 7 June 1984. Mr Lebon's evidence appears to have been that Mr Jingree had purchased the salt works from Black Rocks, including the 15 perches on which the house was built, and then agreed to sell the 15 perches to Mr Bonnenfant on 28 November 1981. Mr Lim's reply was to accept that Mr Jingree had agreed to buy the salt works but to aver that "the sale…was made under certain conditions viz (a) the sale was made under conditions suspensive (b) the authentic deed of purchase to be drawn up on payment."
Rather oddly, Mr Lim's affidavit in reply appears to have denied that the house had formed part of the salt works. It appears up to that point to have been assumed by everyone that it did; Mr Lebon had so asserted in his affidavit, attempting to establish a chain of title from Black Rocks through Mr Jingree. Quite why Mr Lim should have suggested that Mr Jingree had sold Mr Lebon some other piece of land with a concrete building must remain a mystery. Perhaps it reflects a garbled explanation he was given by Mr Jingree, who may have had some difficulty in explaining to the other investors for the first time that he had sold off the house. But there appears to their Lordships to be no doubt that the house and its 15 perches formed part of the salt works owned by Black Rock and sold to Aqua.
The judgment of Espitalier-Noel J in the habere facias possessionem proceedings, delivered on the 2 November 1984, is instructive because it is based on affidavits sworn at a time when the relevant events were fairly recent and all the participants were alive. He said:
"The evidence as it stands sufficiently reveals the following: In 1981, Gujadhur Jingree agreed to sell the fifteen perches together with the concrete building thereon existing to Claude Bonnenfant who paid the agreed purchase price of Rs 55,000 and occupied the property, either by himself or through the respondent, his proxy.
Gujadhur Jingree had himself...
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