Sunnassee v. Ardill (Mauritius)

ADVANCE COPY

Privy Council Appeal No. 50 of 1999

Samy Sunnassee Appellant

v.

David Ardill Respondent

FROM

THE SUPREME COURT OF MAURITIUS

JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 21st May 2001

------------------

Present at the hearing:-

Lord Bingham of Cornhill

Lord Nicholls of Birkenhead

Lord Hoffmann

Lord Millett

Sir Philip Otton

[Delivered by Lord Hoffmann]

------------------

1. This is an appeal against an order for specific performance of a contract for the sale of land. The contract is alleged to have been constituted by the grant of an option dated 22nd February 1980, exercisable by 30th June 1980, and its exercise by a letter dated 24th June 1980. Two defences were raised at the trial. The first was that the letter exercising the option had not been sent. The second was that the land claimed by the plaintiff was not the land in respect of which the option had been granted.

2. The judge (P. Lam Shang Leen J) heard the action towards the end of 1996. He found on a balance of probability that the option had been duly exercised. He also found that the option had always been intended to relate to the land in dispute. The Court of Civil Appeal (Pillay CJ and Matadeen J) affirmed the judge on both points.

3. In presenting this appeal, Mr Ollivry QC was therefore faced with the difficulty that both issues appear to involve questions of fact on which there have been concurrent findings by the courts below. It is not the practice of the Board to re-examine the facts in such a case and although the practice is not immutable, the Board has made it clear that criticisms of the evaluation of evidence by the lower courts are not a ground for making an exception: see Devi v Roy [1946] AC 508, 521. Their Lordships consider that Mr Ollivry has failed to surmount this formidable hurdle but in deference to his attractive submissions they will examine the facts in more detail than might otherwise be thought necessary.

4. The background to the grant of the option was as follows. Compagnie Sucrière de Rich Fund Ltd ("CSRF") was a family company which owned a country property called Mesnil aux Roses. The plaintiff and his mother were members of the family; the plaintiff was a director of CSRF and the family house, in which the plaintiff had been born and in which his mother lived, stood on a part of the property. In 1976, after various parts had been sold, the company owned a piece of land which measured 10 acres 71 perches. Mr Descroizilles, a land surveyor, was asked to make a valuation and advise on a sale. He produced a written valuation dated 17 May 1976 in which he described the property as divided into eight plots. Appended to his valuation was a neat hand-drawn plan, described as a…