The Raphael Fishing Company Ltd v The State of Mauritius and Another (Mauritius)
| Jurisdiction | UK Non-devolved |
| Judge | LORD SCOTT OF FOSCOTE,LORD MANCE,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 30 July 2008 |
| Neutral Citation | [2008] UKPC 43 |
| Court | Privy Council |
| Docket Number | Appeal No 54 of 2006 |
| Date | 30 July 2008 |
[2008] UKPC 43
Privy Council
Present at the hearing:-
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Lord Mance
Lord Neuberger of Abbotsbury
LORD SCOTT OF FOSCOTE AND LORD MANCE
This appeal raises a short, but very interesting, point of law as to the meaning and effect to be attributed to a Deed dated 11 October 1901 which purported to grant to the St Brandon Fish and Manure Co. Ltd. with effect from 2 October 1901 a "permanent lease" of the five groups of islands and islets constituting the Cargados Carajos otherwise known as the St Brandon Archipelago. The grantor was the Colonial Government of Mauritius acting, or purporting to act, in pursuance of a statutory power conferred by section 26 of Ordinance No 18 of 1874. The problem about the 11 October 1901 Deed is that the concept of a "permanent lease" was not then and is not now known to the Civil Code (essentially the Code Napoleon with a few alterations) that constitutes the common law of Mauritius. The issue is one of construction, first, of section 26 of the 1874 Ordinance – what was the breadth of the dispositive power that the section conferred on the Governor? – and, second, of the Deed itself – were the interests purported to have been granted by the Deed within the breadth of that dispositive power? Before addressing these questions it is necessary to provide a good deal of background, historical and constitutional as well as factual.
The Background
Mauritius and its associated islands, which include the islands to which the "permanent lease" relates, were colonised by the French in about 1715, granted by the King of France to the Compagnie des Judes in 1726 but retroceded to the French Crown in 1765. In 1806 Napoleon ordered the proclamation of the Civil Code as the Law of Mauritius and its islands. When, in 1810, Mauritius was taken by force of arms by Britain, the articles of capitulation confirmed to the inhabitants, in accordance with British constitutional practice, the continuance of their own laws, i.e. the Code Napoleon as it then stood. Mauritius, having been a Crown Colony since 1810, became an independent state within the Commonwealth in 1968 and a republic in 1992. The Code Napoleon has remained its common law subject, of course, to statutory changes from time to time. So far as land tenure is concerned, the feudal system had been abolished in France in 1789 and under the Code Napoleon land was treated as purely allodial, capable of being disposed of as freely as any other property. Forfeitures of land to the feudal lord were abolished with the abolition of the feudal system.
Before European colonisation of Mauritius the larger islands were covered by dense woodlands. A colonial imperative was to clear woodland in order to enable agricultural activity to take place at least sufficient to feed the colonists, their servants and those in military and commercial establishments on Mauritius. The practice by means of which the French authorities encouraged the development of agriculture consisted of the grant of concessions of land to individuals willing to clear the land and produce food from it. The typical grants were made on conditions that required the performance of these clearance and agricultural activities and contained reverter provisions enabling the forfeiture of the grants and the re-possession of the land by the Crown in the event of breach. The practice of encouraging land development by means of the grant of concessions was continued by the British after 1810. One of the types of concession that was granted, first by the French and then by the British, was the " jouissance", a term defined in the Council of Europe French-English Legal Dictionary as meaning the "right to receive the produce of property either in kind or indirectly …; right to enjoy". A jouissance could be granted either for a limited or an unlimited period.
The St Brandon Archipelago lies about 250 miles north of the main island of Mauritius. It consists of five groups of in total 22 islands or islets, with an aggregate land area no greater than about half a square mile and prone to substantial submersion in severe weather. Their practical utility lies in the fishing around them on the very extensive shallow bank covering some 900 square miles around them: see the Surveyor General's Report to the Colonial Secretary dated 1st June 1863, para. 4. Most of the islands were in use as fishing stations by the early 19th century, though these stations suffered disastrous inundations in 1812 and again 1818: see the Limuria Book Part 2 Chap. VII, p.188.
In 1820 the then Governor General of Mauritius granted jouissances in respect of the five groups as follows. He granted to Ozile Majestre alone a joussance exclusive over one group, the Iles Boisées, and to two individuals, Ozile Majestre and Dominique Bétuel, jouissances en partage over another group of six islands (Petits Foux, Lavocaire and four others). He granted three further jouissances exclusives to respectively M. Burceret (La Baleine and l'île aux Cocos), Mme. Veuve Raphaël (l'île Raphaël) and Mr William Stone (Ile Veronge and Ile aux Bois). All these jouissances were unlimited in time. The jouissance that had been granted to M. Majestre alone is in evidence and it is agreed that it may be taken as typical of the jouissances that related to the other groups. The jouissance recited, as background to its grant, that M. Majestre had in 1806 purchased a fishery establishment formed some years previously on the St Brandon islands. The jouissance is subject to a number of conditions. By condition 1 the fishing over the whole bank was to be common to all those to whom places of establishment were at that time granted (i.e. all the jouissance holders), on the basis that they would not harm, but would on the contrary help and come to the assistance of, each other on pain of forfeiture of all rights of establishment and fishing by anyone disturbing the peace. Condition 2 recited that, as the only islands which appeared to offer less briny water were Veronge and Lavocaire, use of their wells was reserved for all the establishments on the bank, but that this was not, under any pretext, to be a cause of obstruction to the jouissances granted over those islands. Condition 3 required government approval for any transfer of the jouissance. Condition 4 required a declaration in the first months of each year to the Commissioner of Police, giving details of personnel, boats and equipment employed in the jouissance-holder's establishment. Condition 5 required a payment per capita of slaves and others in such establishment, while condition 6 required strict adherence to the Abolition of the Slave Trade Act 1807 (described as a Bill of the English Parliament), on pain of forfeiture of the jouissance as well as of confiscation of the objects used in the establishment. Condition 7 required the produce of the establishment to be imported exclusively to Mauritius, on pain of confiscation of the value of articles taken elsewhere and of forfeiture of the jouissance.
The nature of land tenure in Mauritius and its dependencies became a matter of concern to the colonial authorities, and a number of reports and regulations (approved by the Governor in Executive Council), leading up to the 1874 Ordinance to which reference has already been made, illustrate the mischief at which the 1874 Ordinance was directed:
(1) Regulations of 26 January 1853 directed, inter alia, that Crown lands "…shall be sold in perpetuity, or leased at the discretion of the Governor, but may not be alienated from the Crown by free grants" and in paragraphs 22, 23 and 24, under the heading "Existing Jouissances", said that
"22. With the view of abolishing the uncertain tenure of grants 'en jouissance', the Government will be prepared to substitute for such grants, grants in perpetuity, or leases for terms of years, according to the nature of the property, and the object and terms of the original grant.
23. In those cases in which the Government shall not deem fit to alienate its proprietary right, it will grant a lease of 7, 14 or 21 years, and in certain cases a lease for a longer period.
24. The conditions of the leases shall be such as to ensure the special object for which the 'jouissance' was originally conceded, and at the same time to give every encouragement to improvements, compatible with the purposes for which the title is reserved."
And paragraph 30 invited "all persons holding grants en jouissance" to apply to the Government for the substitution, in place of their jouissances, "of grants in perpetuity or leases on the above terms".
(2) In his above-mentioned Report dated 1 June 1863 the Surveyor General of Mauritius reported to the Colonial Secretary on the "unsatisfactory nature of the tenure of existing concessions" in the dependencies of Mauritius and the "great loss of revenue to the Colony consequent upon such tenure and the absolute necessity for reformation". While he mentioned the St Brandon Islands, their value for fishery and the presence of fishing establishments on them, he does not appear to have been aware of the 1820 jouissances relating to them (or he would presumably have mentioned them specifically, as he did in the case of other islands).
(3) In July 1864 new Regulations replaced the 1853 Regulations. Paragraph 2 of the new Regulations prohibited the disposal of Crown lands "by free grant" but made an exception "in the case of land required for religious, charitable, educational or other purposes of a public nature" and went on
"All such grants shall be conditional on the land being applied to the purposes for which the grants may...
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