Stanley Black v The Mayor and Citizens of Castries

~ !'" ''·' . pondent issued a specially endorsed writ. claiming from the Appollant (1) possession of the premises, and (2) mesne profits from 31st December, 1974, the date of expiry of . the second five-year term. ·a. further five years .. This has been conceded. On 24th August, 1976 the Res- On ~~~ June, 1970, six months after tho term had expired, the Appellant wrote seeking to exerci_se his. optio~ to. renew. Moor some correspondence, the Respondent offered to renew the lease but at an increased rent of $40.00 per month. The Appellant did not agree. He however continued to occupy the land. By letter dated 25th February, 1972, Respondent gave the Appellant notice to quit not later . . than 30th. April,-1972, but .tho Appellant continued in occupation on tho ground that· the acceptance of rent after tho expiry of the original term, coupled with his letter of 1/6/70, amounted to a. valid exercise of his option to renew the lease for · _, · .· . ,. · ·where he 'Carried on the business of a petrol service station . . -. .;, ' '• .. ~ . .........,. . ·' .• ~··,the premises a concrete structure With stool remforcements covered With -galvamse, .. t ~;·>il--i!."1Jhe optio';l was to be exereised durin.g his term ?ffivo years, the lesSetl c~mstructed. on : ; .. ;..; · · Appt">llant leased from tho Respondents a lot Oiland situato in Castries for a torm · } · · · of five years at an annual rent of forty dollars with an option to renew for a further · 1''< .. • ·period of five years. There was no provision in the lease as to the t.ime within which _., . •. ,;· .. , :~ . . ~ . '.~··· PETERKIN. J.A. : This is an appeal against the judgment of Renwick J . ordering that tho Appellant give up possession of certain premises the property of the Respondents, and for the payment by him of mesne profits. .. The fact..'l and circumstances a~'!} that by lea~o dated 31st December, 1964, the ' ;'~. ~- ~- ' .. ~ JUDGMENT ·" '; ~ ~ 'l.'. .1 ' ' .... 1978, February 21 ; May r ·~·· ·, ' fot . . . . , ...... . ··~> .•.. '·1C'.·' "" ,.,., ,.., . Appearances : ,t, ~-...· "' W .. Cenac, Q.C., with him Mis!'l Beryl Edwards for the Appellant . . ' ,. .. · ... :: . ·.: ........ ,· \· ~,. K. Monplaisir for the Respondent. _:.; ·',.~ . ..). ~~· ;)' The Honourable Mr. Justice Peterkin t. __ . •"i'r .• • ·· · The Honourable Mr. Justice Nedd (Acting) .... , ... ,. :·~·'p. ~,. .. · · The Hon. Sir Maurice Davis, Q.C.- Chief Justice t~~~-~~·/ . } • .. ;•r · · , Before: . t·: ~~.;. ~ ..... ~·.. . THE MAYOR AND CITIZENS of Castries a body corporate established and constituted by the Castries Corporation Act, 1967 (No. 22 of 1967) Plaintiff/Respondent. ~': .. ·, . \·,, and ·.Between: STANLEY BLACK Defendant/Appellant. t:r~? CIVIL APPEAL No. 4 of 1977 . BAINT LUCIA IN THE COURT OF APPEAL ·" .. .. .. · ,(· . ' .. . ... , · .. ·. i.' '~'..,-·· -l. '·'· "l_;, ·:/-: v-~~;;1-:;:~:~\!>;' : Jf:·'~: ~~-- -· --- -:;~>·-.· < ~- ' ~: . J. . . .. " "'~;i[;;:,~·:::~,;~~-/ ., :, J l i l . Code, Cap. 242, and concluded that in his view, although the section .gave the le8$or.:~~ ~: ;: r an option to re~in the impro~ements and additions on pa.Y_lllet;~.t of theit vahie; h~. ·•. ·;;i>( · could not be compelled to do so, but that the lessee ha.d the nght to remo~ th~ a.ddi•: ,, : ,: tions. Also, in effect, tha.t since the lessors in the instant case did.not \vish;to retain ·~ · .. the improvements, the lessee WIJ.S not entitled to be_ re~mb~~.;.:, Hc(then wen~ ~ · ~ Jto make the order for possession and tnesne profits. · · _ · ';~:.)': ·. · • . ·l~ ,>-;_-·· lttti~h .. : ff"-'"·-'"·/1~- --·-- --:·- ... - had boon erected with tho approval and consent Of the Respondoots. Counsel for ·'.1 ':;-( ,_ the Respondents has .been criticial of this finding, but there has1 however;·~n no ;·•;.'"i•.' t cross appeal filed against the judgment. He also went on to fin4 that thtPAplJf)llant.'' ~:) had paid no.rent since June, 1970, and indeed, had ooased~'to opera.t-0 hts-ae~oo .:·< station from about 1971. He found too that on the Appellant'_, own admiasion ,the~· .. lease had expired and that whatever tenancy he may have had was duly te~ted·· ....•. by notice properly given. The trial judge then referred- to Article 1544 of'. the Ci-ril .~ \. :-· ':l"' . . . ,' ~-'~$1l':~.¥""#~-4"':~, ....... :..... ~ i In hie judgment of 13th May, 1977, tho trial judge fOUU:d that tho structu.ra , ""; __ "J: tf~:ii> .'~ n:< . __ .... had little value is wrong in that it is against the weight of tho evidence:,· _ i 't?:. "i• -_ l 4' (3) The finding of tho learned judge that tho said additions and improvemtlnttl .· ~:: . /'~fil[, ·in view of tho Respondent's approval and consent aforesaid, to ·retain the premises until tho Appellant had been reimbursed by the !Wsponde:nt for tho addition8 and improvements . made by , the' Appellant to the said premisos. .~}::· .. ;~~ ·.\- -;" ~i'."~ ~~-

4.< < ~· ,• _,1, .; .? .. j··-· 't•.! ' .· the Rospondent's·approval of and consent to the said improvements · and additions. · (2). (a) The learned judge erred in law in that although he found that the said additions and improvements had some value, he failed to determine that value or to make any award in favour ofthe Appellant for tho same ; - (b) The learned judge erred in law in that in ordering the Appellant tp · deliver up possession of the promises he failed to consider adequately or at all tho Appellant's rights in all the circumstances, and especially ~j;_ -I I [!\} :li-t i. .-.:: (a) He misconstrued tho meaning and effect of Article 1544 of the Civil Code; · ): . . • · (b) He failed adequately or at all to consider the rights of the Appellant · to be compensated for the said improvemonts and additions, and in . particular, tho right of tho Appollant to compensation arising from ': " reasons:- · · \-lt,_ t~· ; ' .,_ "'-..:. pensato the Appellant for the same. He so erred for the following '·-: f . :~~~\~~ ~t·. -> ,t~ tr Against this decision the Appellant has appealed on the foUowirig grounds ~ ' (1) The learned judge erred in law by holding that, because the Respondent - did not wish to retain the improvements and additions, tho Respondent was not, in all tho circumstances, under any legal obligation to com- . _ ~; . · ·premises on or before 30th June ; to pay to the Plaintiffs $100.00 being the- ·_- - meSJ1e profits claimed from 31st December,l9741 and oosts to be_taxed. '_'- __ ;,- _ I. ij" On 13th May, 1977, Renwick J. made the following Order :. ' · -:- , . · - · - • -. ··: ' "The Defendant is hereby ordered to deliver up possossion of the leased:· _ -payable to him for improvements, _ . , _: • _ .- · · _ _ .. ·: >-. :~ "- ·- ' f~· .. · d ·· ... (3) A set-off of any amount payable to the !Wspondent .against any !-'I'QoU:Ot, · .- _ .... ~ (2) A declaration that he had a right to rotain possession of the premises un~U. he was re-imbl!-rsed for his improvements : - _ _ '' (I) Payment for improvements made; The Appellant counterclaimed for, -. - '·. - '' -. . .-... ~; I t . ,·."' $' . ·,: ·~. ~ . ··~ r. !· - J· - . Article 417 of the Civil Code of Quebec (Our 372) applies in general, only to __ ~!_lird_ parties._wh<? -~!!SC_!S_animo domini, for_ thel!!~l~s _aJ1d on tl,wir OJll ecoonpt, in goOd or bad faith, and doe\> not apply tp those~o possess ll by VIrtue of a contract, such as farmers, l~soo>~, usufruotuaries, etc. In ·" the~ cases the rights and obligations of _th~ parties. am governed h~ the principles applicable to the contracts by virtue of which they possess. Lewis J said at page 4 of the judgment, · · "In the case of Chenio Hardware Co., v Lauront, 1 R.J. 278, noted in Beauchamp. General Digest, Vol. II Col. 1358, No. 36a, it was held that (~:~~i~ IJ1 the case of Simeon v Beaubrun, cited to the Court by Counsel for the Appellant, . . . I shall deal first with the question of possession. -'~~'' ~~:<;,;;\, "372. \Vhen improvements havo b<w.m made by a posf;essm· with his own materials, the right of the owner to tmch improvements depends on their nature and the good or bad faith of such po~sessor. '' ; .. " t' f·< f·. ~ .;::..~ ·wm by proceedings at law." · r ~ ~: "367. A posse!'lsor is in good faith wlJPn he possnsses in virtue of a titlo the defects of which as well as the happening of the n•st>lutory eauRe which puts an ond to it are unknown t~> him. Such good faith cuasos only from the moment that these defects or the rm;olutorv cause am mado known to !', r· leased to him as :t result of making improvements on it. · (ii) That in tho instant case the Appellant iR a possnssor iu had faith. (iii) That by tho nature of the lease and the conduct of the Appellant towards·the lease he has waived any rights whi<'h ho may have had in respect of improvements. In respect of his first submission Uounsol cited .tho mtRc of Canadian Railway v . Andrews, Quebec Law RR-ports, Vol. W !J/12/18!)0, at page 379. In reRpoct of hiR second and third submissionR Counsel has referrod the Court to Articles 367 and 372. ·These Articles read respoctivdy. . '\ (i) That no lef'see has any right t,o mtain posseRsion of any property · J ' ·•·. - llil88U)ll8 : ....... ~ • • ·,)lr :>... ••• • I . , · · · Counsel for the Respondent bas on the other hand made tho following sub- · providnd for in the Book respecting Privilege<~ and Hypothecs. " ~ ,, t ~ .: ~ ·. ~~· ,.~·-. ,, . \' ··.,: ~~.· •.- ._,. - . . ·. . ~ .. :~~/<' "374. In case tho party in po~~cssion is forced to give up the immovable upon which he has made improvmnonts for which he is entitled to bo re- imbursed, he has a right to retain the property until such reimbursement. is made, without prejudice to his personal rocourso to obtain repayment ; · except in the case of surrender in any hypothocary action, as specially so. He then referred tho Com·t to Article 37 4 of t.lto Civil Code and ~mbmittod that the ,4ppellant was entitled to retain possei<sion of the premises until he had been \. t-.; .. reimbursed by the Responrll'nts. Articlfl 374 reads. value of the building as there wa" sufllcient evidenco hefom him to etuible him to do :;[:.,~>? On grounds (2) and (3) Counsel argued t.hat. tho judgtl ou/-!h.t. t.o hnve fimmrt.hn . ._.: 26/55, St. Lucia Gazette of 17/1/56. unjustly enriching themselves, and t>ited t.hu cnsP of Hirneon v Bca.ubrun. ~uit. No . · ···;_!'in that he placed too rigid a construction on Article 1544 by failing to construe it · ·' in the context of the other relevant provisions of tho Civil Code named as well as in the context of the Respondcmt's approval of and consont to tho .'\ppullant's cnw- tion of·the building. Also, t,hat. he should have found tha.t the H-("<poudnnts had treated the building as having been at.tachod for a perma.rwney to t.lw lo1tsed p<'nuisos and so had exercised their opt.ion to mtain it.. H(> argnod that t.lw Landlord~< wnrf) . ~-,- ·';Counsel argued grounds I (a) and (b) together. He referred the Court to . ::~_Articles 337, 338 and 371, and submitted that the judge's decision was erroneous '; ~~"~·~i:::··. ·.\;;.' :.'Y·.- · ·' · . · I:O-esta.b1ishes ·the property in its former sta.te. ·However;· it the.improv~~_,:::~~~;·~:: ·_-; · > ments or additions are attached to the property .leased ·hY''riaiJs, motta.r~;;·,<;/ :,··· or cement, the law permits the lessor to treat thein as having been attaohed'i'. ·' · ·. ,, · for a permanency, and to retain them on paying their value, but the'terinS;t · :·.( of the article make it clear that this is an option granted tt> the proprietor~ ~-r ··~ .· , ', . pay their value, unless the latter has ordered them to be made. , Bttt"be~·~1i.'.6i •- . · . · can remove. them at his own expense, proVided he can do. so with Mva.ntag«t">r,',~f::;'::l':i·-;~ ' to himself (argument from art. '417, last para.graph)\and.-proVided:.?he';:~<:~,(\~1·!··. ·: · .. ·_ "Either th~:improve~ents a~d additions are sus~tible ~fbemg re~ov~ .~r"it-~r~~;"; ·. ·.without deteljorating the immoveable, or they cannot·_ be removed witho,u~ ~~·. , . deteriorating it. ,In the first case, the lessee cannot' compel'the owner w;~-~-.':1: <,, , • • • '. • c • i'l ' . • . ~ •. ' · • · Mignault,'in his treatise on the CiVil Law, commenting onArtiole 1640 of the·; "' "'"b Q b Cod V l 7 323 tate .. . '•',.J,,· ··.. • . ,.. . .• ·.!•···· ·' . ue ec e, at. o. , page t s s: · . •.. · .. ;·'.:c,. ·'.". :. ····."': r;, ,.·< ·, · f r :: ~ ~ ~ improvement.<~ or additions be incorporated with the thing leased, with. · nails, linie, or cement, the lessor may retain thorn on paying the _value •. .'.'·•.;,,,• .. , •: f'·· ~~: ~:. " 1544. The lessee has a right to remove, before the expiration of the lease, improvements and additionR which he has made, proVided he leaves ·. the property in the state in which he received it ; nevertheless, if the ~;..J .. i Q~ebec <;livil Code); which reads, · --~-- :. : ._;--, ~- ~::· 'l I turn next to the question of compensation. ' I agree that tho position of lessees with respoct to improvements made by them is regulated not by Article 372 but by Article 1544 of the Civil Code (Article 1640 .'.:· ~l· !-.' '· ~: ~ ~ .. , ~ •V ·~ ~; • r ; ·~·. come under the umbrella of Articles 372 and 374. The lea.."le has terminated, and . the Appellant has no right to retain the property until he is reimbursed as counter• · '~ . claimed.·· Accordingly, I would sustain the judgment and oM.er for pQSsesslon with mesne profits. . . . . ' t Quebec). . In the instant case the Appellant who is a lessee does not in· my Viow .· ' . ~ ·~ .I · In my View Article 37 4 clearly relates· to Article 372 and refers only to third.;~ < parties such as come within the purview of Article 372. (Article 417, CiVil Code of;,-·: ·. · ) . \r i.) . third party retaining possession. " · · · " · ;. ~;·~(' 0 _,], our law ; for Article 419 of the Civil Code gives this expressly dnly to & ' ' ~. '/~ .. -~t _us -even. s.up~ose that the w~rds. thir_d pe_rson andpo~r.mightha.ve · _· · .. . -..:..J s•gmficance the nght of retentiOn until rmmbursement which the same·. ·~ ·: .. ·. · French jurists accord to the tonant could not have the same,mea.ning under ~.t

1.-~ }' applicable to Article 417 of the Civil Code which uses the word posse8sott:~'f't:•: ·. • -;=~· ·.r~ tr·. 555 of the Napoleonic Code US6S the word third person.<J and that this t,6rm,~., •.. / . · according to them, includes the farmer as well as the possessor is not,:.f f / :. :~ 'f. .. · out on property ; but their arguments are all based on the fact that Article :.· .. ~ : " VoL 9 Nos. 592 and 593 and other French Jurists classify the farmer or,:,;; :,. the tenant among third persons for improvements which they have. carried, ,· .. . .. "Several commentators of the Napolionic Code among others Demolombe .. ' . · : ~~-t , .... .. :~.1' "' ,.-, · In the case cited to the Court by Counsel for Respondoots it was held that the benefit which the tenant derives for the cost of urgent and necessary ·repairs carried out on the thing leased, and done with the con8ent of the Landlord, is op.ly personal against the Landlord, and that this benefit in no way confers any ·priVilege{: , · and does not in addition give the right to retain the thing leased upon the expira:: ': , . tion of the lease. At page 2 of the judgment (Translation), the learned judge sta.tes;.~::: ''-' .· \ ·:Civil Code, Article 1640)." iJ ' ' The position· of lessees with respect to improvements made by them is regulated by Article 1544 of the.CiVil Code (corresponding to the ·Que1Jec, \ ., ~t ,· ·.· '4 . f: ,··i·,_,. ( . .. . .... , .. ·• ··,: ' \ ' . . • .:1 ~~~~ --h. :_ ... ~tJ~~ • ~-.... :.•1- ... ~ .... ~ ~ '(. t.:~ ·(~c~i· '':~. _<t<;~: .. ·' -.,. ~'. ~-; <f-:; ... r "·~ ~ .. ' -~- c~·". ·.·-~ ., ·~ . ·- ;u :·}~;f · t : .}._.,_,1. ,, ' ' : ;·- :~' < ~!' :._ 'i-'~-:· -~({:\;c.:f~. ·. f. . .. ~'t•: '·""' ~ ....... ·' ~ -~- ~- . ' . . "' ,_-·: ' t•y... .. . i··.t'· ·.··· .. ~-- j.·J~ ~. _:·- . . '·•. ' ~ tf''. --~·r· -"" r .. - "' . r. . , •. fL · ,, ~~- ·-· ~r- .. >- ·' ' 1-. ~'t r~ ., :~·r· ;, v ;. f '{-i.'". ~- .,r,'· ~- _ I also agree SIR MAURICE DAVIS, Ohief Jwtice . .. !.".:1 (f •.. L· JWJtice of Appeal (Acting). :.;}'. •"" J . ·-." :·. i .. , .-~ ,:·.;.·· __ _I• agree R. A. NEDD, .t .. . ;.. i~-; . -:< ;) ~:- ~i . N. A. PETERKIN, JWJtice of Appeal. \.:;! ,, ';i th~ Respondent against any amount payable to the Appellant. In my ?iew there should be no order made as to costs. . ; . for the trial judge to assess~the compensation due to the Appellant for the improve. menta or additions made. Also, I would allow a set-off of any amount payable to .- '' . -·~ ., :•. "..: '·- ' In the result, I would allow (i) and (iii) of the counterclaim and remit tho matter ~ :'··_. ,._·_r-~ \~ · ·· ·.as having been attached for a permaooncy, and to retain them on paying their value- A-,. . · . :.· ''·their approval' and consent the Respondents cannot, I think, stand by and enrich .':. · .· themselves without the just payment of compensation to the Appellant. In my , opinion the Respondents must be taken in the circumstances of this case to have . . 'exercised their option and to have elected to treat the improvements or additions :'-"structure is one that was built with concrete blocks, and, in my view, iR one" attached .... to the property leased by nails, mortar or cement." Having expressly granted t'· . ·-.: > approval and consent to the construction of the building on the land leased. ·· The In the instant case the trial judge has found that the Respondents gave their '. . '1~I~~<t;: i'i9::: •

·. ·” .. .. .. · ,(· . t:r~? ~’: .. ·, . . t·: ~~.;. ~. \ ·.,.,. . ~·.. . .. , , , : , . ;f·{~l..i :.~.~ ,-; . · f . .. ?.· .. ‘ BAINT LUCIA IN THE COURT OF APPEAL CIVIL APPEAL No. 4 of 1977 . ·.Between: STANLEY BLACK Defendant/Appellant. and THE MAYOR AND CITIZENS of Castries a body corporate established and constituted by the Castries Corporation Act, 1967 (No. 22 of 1967) Plaintiff/Respondent. t~~~-~~·/ . } • .. ;•r · · , Before: :·~·’p. ~,. .. · · The Hon. Sir Maurice Davis, Q.C.- Chief Justice _:.; ·’,.~ . ..). ~~· ;)’ The Honourable Mr. Justice Peterkin t. __ . •”i’r .• • ·· · The Honourable Mr. Justice Nedd (Acting) …. , … ,. ··~> “” ,..•,.,. . ‘·1C’.·’ ,.., . Appearances : ,t, ~-…· “‘ W .. Cenac, Q.C., with him Mis!’l Beryl Edwards for the Appellant . . ‘ ,. .. · … :: . ·.: . ……. ,· \· ~,. K. Monplaisir for the Respondent. …… . ‘ fot. . . . , .1 ‘ ‘ …. 1978, February 21 ; May r ·~·· ·, ~ ‘l.’. ·” ‘; ~ ~- ~- ‘ .. ~ JUDGMENT ‘ ;’~. ‘.~··· ,;· .. , :~ . . ~ . _., . •. PETERKIN. J.A. : This is an appeal against the judgment of Renwick J . ordering that tho Appellant give up possession of certain premises the property of the Respondents, and for the payment by him of mesne profits. .. The fact..’l and circumstances a~’!} that by lea~o dated 31st December, 1964, the ; .. ;..; · · Appt”>llant leased from tho Respondents a lot Oiland situato in Castries for a torm · } · · · of five years at an annual rent of forty dollars with an option to renew for a further · 1”< .. • ·period of five years. There was no provision in the lease as to the t.ime within which .. t ~;·>il–i!.”1Jhe optio’;l was to be exereised durin.g his term ?ffivo years, the lesSetl c~mstructed. on ~ . ………,. . ·’ .• ~··,the premises a concrete structure With stool remforcements covered With -galvamse, · _, · .· . ,. · ·where he ‘Carried on the business of a petrol service station . . -. .;, ‘ ‘• .. On ~~~ June, 1970, six months after tho term had expired, the Appellant wrote seeking to exerci_se his. optio~ to. renew. Moor some correspondence, the Respondent offered to renew the lease but at an increased rent of $40.00 per month. The Appellant did not agree. He however continued to occupy the land. By letter dated 25th February, 1972, Respondent gave the Appellant notice to quit not later . . than 30th. April,-1972, but .tho Appellant continued in occupation on tho ground that· the acceptance of rent after tho expiry of the original term, coupled with his letter of 1/6/70, amounted to a. valid exercise of his option to renew the lease for ·a. further five years .. This has been conceded. On 24th August, 1976 the Respondent issued a specially endorsed writ. claiming from the Appollant (1) possession of the premises, and (2) mesne profits from 31st December, 1974, the date of expiry of . the second five-year term. ”·’ . ~ !'” ·.~ .. –:~ ~- , ‘ ., ~”-~ – f~· . · d ; , – I . ij” ~; . ,t~ tr ~t·. -> ‘ ‘ ; · · ~ … :~~~\~~ t~· ; ‘ ., “‘..:. :li- t i. ~j;_ ,1, ~~-

4.< ~i’.”~ -;” [!} -I I ‘ t • . ! ‘ .· .; .? .. j · · – · < ~· .~}::· .. ;~~ ·.- /’~fil[, -. ~·; .. ‘< …. ~ ·· … ‘t?:. “i• – l 4 ‘ tf~:ii> .’~ n:< . _ …. ‘ : l ” ‘ lttti~h .. : ff”-‘”·-‘”·/1~- –·– –:·- … – i ~. .. -. – ,• Jf:-· ·’—~-::; ~~>~·—.· < v-~~;;1-:;:~:~!>;’ : i . ‘ ‘ ~: . . , , .. : • \ · : . -. •.. ‘!. The Appellant counterclaimed for, .-… \~:”. ;.:~· -~: ~;~’~;~.·.~. . -~ . 1 \ __ ‘- -, ,; ” ;. ‘·. – (I) Payment for improvements made; ,~–, ·: (2) A declaration that he had a right to rotain possession of the premises un~U. he was re-imbl!-rsed for his improvements : .- – i .. J-· _ _ ‘ ‘ -, ·: ~ I (3) A set-off of any amount payable to the !Wspondent .against any !-‘I’QoU:Ot, · .- _ – payabl e to him for improvements, _ . , _: • _ .- · · _ .. ·: >-. :~ “- ·- ‘ On 13th May, 1977, Renwick J. made the following Order :. ‘ · -:- , . · – · – • -. ··: ‘ “The Defendant is hereby ordered to deliver up possossion of the leased:· _ · ·premises on or before 30th June ; to pay to the Plaintiffs $100.00 being the- · – – meSJ1e profits claimed from 31st December,l9741 and oosts to be_taxed. ‘ ‘- __ Against this decision the Appellant has appealed on the foUowirig grounds ~ ‘ (1) The learned judge erred in law by holding that, because the Respondent – did not wish to retain the improvements and additions, tho Respondent was not, in all tho circumstances, under any legal obligation to com- . _ pensato the Appellant for the same. He so erred for the following ‘·-: f . reasons:- · · -lt, (a) He misconstrued tho meaning and effect of Article 1544 of the Civil Code; · ): . . • · (b) He failed adequately or at all to consider the rights of the Appellant · to be compensated for the said improvemonts and additions, and in . particular, tho right of tho Appollant to compensation arising from ‘: “ the Rospondent’s·approval of and consent to the said improvements · and additions. · (2). (a) The learned judge erred in law in that although he found that the said additions and improvements had some value, he failed to determine that value or to make any award in favour ofthe Appellant for tho same ; – (b) The learned judge erred in law in that in ordering the Appellant tp · deliver up possession of the promises he failed to consider adequately or at all tho Appellant’s rights in all the circumstances, and especially ·in view of tho Respondent’s approval and consent aforesaid, to ·retain the premises until tho Appellant had been reimbursed by the !Wsponde:nt for tho addition8 and improvements . made by , the’ Appellant to the said premisos. (3) The finding of tho learned judge that tho said additions and improvemtlnttl .· ~:: . .-.:: had little value is wrong in that it is against the weight of tho evidence:,· _ i . . . , ‘ ~-‘~$1l’:~.¥””#~-4″‘:~,. ……: ….. ~ i In hie judgment of 13th May, 1977, tho trial judge fOUU:d that tho structu.ra , “”; __ “J: had boon erected with tho approval and consent Of the Respondoots. Counsel for ·’.1 ‘ : ; – ( ,_ the Respondents has .been criticial of this finding, but there has1 however;·~n no ;·•;.'”i•.’ t cross appeal filed against the judgment. He also went on to fin4 that thtPAplJf)llant.” ~:) had paid no.rent since June, 1970, and indeed, had ooased~’to opera.t-0 hts-ae~oo .:·< station from about 1971. He found too that on the Appellant’_, own admiasion ,the~· .. lease had expired and that whatever tenancy he may have had was duly te~ted·· ….•. by notice properly given. The trial judge then referred- to Article 1544 of’. the Ci-ril .~ . :-· . Code, Cap. 242, and concluded that in his view, although the section .gave the le8$or.:~~ ~: ;: r an option to re~in the impro~ements and additions on pa.Y_lllet;~.t of theit vahie; h~. ·•. ·;;i>( · could not be compelled to do so, but that the lessee ha.d the nght to remo~ th~ a.ddi•: ,, : ,: tions. Also, in effect, tha.t since the lessors in the instant case did.not \vish;to retain ·~ · .. the improvements, the lessee WIJ.S not entitled to be_ re~mb~~.;.:, Hc(then wen~ ~ · ~ Jto make the order for possession and tnesne profits. · · _ · ‘;~:.)’: ·. · • . ·l~ ,>-; -· . . . ” “‘~;i[;;:,~·:::~,;~~-/ “l ;, ·:/-: ‘~’..,-·· -l. ‘·’· ., :, J l i l J. ~- .~· .. • t :·.,· , : ‘ : t • , ‘ r • 3 . ~-,- ·’;Counsel argued grounds I (a) and (b) together. He referred the Court to . ::~ Articles 337, 338 and 371, and submitted that the judge’s decision was erroneous · ···; !’in that he placed too rigid a construction on Article 1544 by failing to construe it · ·’ in the context of the other relevant provisions of tho Civil Code named as well as in the context of the Respondcmt’s approval of and consont to tho .’\ppullant’s cnwtion of·the building. Also, t,hat. he should have found tha.t the H-(” treated the building as having been at.tachod for a perma.rwney to t.lw lo1tsed p<‘nuisos and so had exercised their opt.ion to mtain it.. H(> argnod that t.lw Landlord~< wnrf) unjustly enriching themselves, and t>ited t.hu cnsP of Hirneon v Bca.ubrun. ~uit. No . . ._.: 26/55, St. Lucia Gazette of 17/1/56. :;[:.,~>? On grounds (2) and (3) Counsel argued t.hat. tho judgtl ou/-!h.t. t.o hnve fimmrt.hn value of the building as there wa” sufllcient evidenco hefom him to etuible him to do so. He then referred tho Com·t to Article 37 4 of t.lto Civil Code and ~mbmittod that \ . the ,4ppe l l ant was ent i t l ed to retain possei ‘\ (i) That no lef’see has any right t,o mtain posseRsion of any property r· !’, r ~ ~: f·. ~ .;::..~ leased to him as :t result of making improvements on it. · (ii) That in tho instant case the Appellant iR a possnssor iu had faith. (iii) That by tho nature of the lease and the conduct of the Appellant towards·the lease he has waived any rights whi< ‘h ho may have had in respect of improvements. In respect of his first submission Uounsol cited .tho mtRc of Canadian Railway v . Andrews, Quebec Law RR-ports, Vol. W !J/12/18!)0, at page 379. In reRpoct of hiR second and third submissionR Counsel has referrod the Court to Articles 367 and

372.·These Articles read respoctivdy. . “367. A posse!’lsor is in good faith wlJPn he possnsses in virtue of a titlo the defects of which as well as the happening of the n•st>lutory eauRe which puts an ond to it are unknown t~> him. Such good faith cuasos only from the moment that these defects or the rm;olutorv cause am mado known to ·wm by proceedings at law.” · -‘~~” ~~:< ;,;;\, “372. \Vhen improvements havo b<w.m made by a posf;essm· with his own materials, the right of the owner to tmch improvements depends on their ; . . na tur e and the good or bad faith of such po~sessor. ” t”‘ f·< (~:~~i~ . ··~ r. !· – J· – $’ . ·,: ·~. ~ I t . ,·.”‘ ~; . . . I shall deal first with the question of possession. IJ1 the case of Simeon v Beaubrun, cited to the Court by Counsel for the Appellant, Lewis J said at page 4 of the judgment, · · “In the case of Chenio Hardware Co., v Lauront, 1 R.J. 278, noted in Beauchamp. General Digest, Vol. II Col. 1358, No. 36a, it was held that . Article 417 of the Civil Code of Quebec (Our 372) applies in general, only to _ ~! lird parties. wh<? -~!!SC !S_animo domini, for_ thel!!~l~s aJ1d on tl,wir OJll ecoonpt, in goOd or bad faith, and doe> not apply tp those~o possess ll by VIrtue of a contract, such as farmers, l~soo>~, usufruotuaries, etc. In ·” the~ cases the rights and obligations of _th~ parties. am governed h~ the principles applicable to the contracts by virtue of which they possess. :• ,.I .:1 ‘ . .• ·~.x· ~· ‘c ·’· .. }~~·: . f: ,··i·, ,. ( . ., ~t ,· ·.· ‘ :· ~ ‘, ·.,< ; iJ ‘ . ~- .. ~-~ J’ ,”.’- , .. :~.1′ ,~. ~.-..t ‘f. .. ·.r~ tr·. ~. -~ ~;·~(‘ i.) ‘ . ~ ·~ .I ‘ ,], \r • r ; ·~·. ~ •V ·~ ~: ~ ~ ~l· !-.’ ‘· ~::· ‘l ~- –~– :. : . ;–, ~;..J .. i f’·· ~~: ~:. ~ ~ ~ f r :: .. , ‘/~ .. t . ‘ . : · · . \ ; ; . ‘ ~~”~·~i:::··. .. · ~; · ….. ,·,’)::.~ i :, ~ …. . ,.~ \ :..· ··\· “‘ , ‘ . . : ··,: . ‘ \ :'” l._· \ …. , .. ·• .. . l, ‘4 ‘, The position· of lessees with respect to improvements made by them is regulated by Article 1544 of the.CiVil Code (corresponding to the ·Que1Jec, ·:Civil Code, Article 1640).” · In the case cited to the Court by Counsel for Respondoots it was held that the benefit which the tenant derives for the cost of urgent and necessary ·repairs carried out on the thing leased, and done with the con8ent of the Landlord, is op.ly personal against the Landlord, and that this benefit in no way confers any ·priVilege{: , · and does not in addition give the right to retain the thing leased upon the expira:: ‘: , . tion of the lease. At page 2 of the judgment (Translation), the learned judge sta.tes;.~::: ”-‘ .· . .. “Several commentators of the Napolionic Code among others Demolombe .. ‘ . · VoL 9 Nos. 592 and 593 and other French Jurists classify the farmer or,:,;; :,. the tenant among third persons for improvements which they have. carried, ,· .. · out on property ; but their arguments are all based on the fact that Article :.· .. ~ : “ ‘ \ \ }’ 555 of the Napoleonic Code US6S the word third person. according to them, includes the farmer as well as the possessor is not,:.f f / :. :~ applicable to Article 417 of the Civil Code which uses the word posse8sott:~’f’t:•: ·. • -;=~· -~t _us -even. s.up~ose that the w~rds. thir_d pe_rson andpo~r.mightha.ve · _· · .. . -..:..J s•gmficance the nght of retentiOn until rmmbursement which the same·. ·~ ·: .. ·. · French jurists accord to the tonant could not have the same,mea.ning under ~.t 1. our law ; for Article 419 of the Civil Code gives this expressly dnly to & ‘ ‘ . third party retaining possession. ” · · · ” · ;. ) . · In my View Article 37 4 clearly relates· to Article 372 and refers only to third.;~ < parties such as come within the purview of Article 372. (Article 417, CiVil Code of;,-·: ·. · Quebec). . In the instant case the Appellant who is a lessee does not in· my Viow .· come under the umbrella of Articles 372 and 374. The lea..”le has terminated, and . the Appellant has no right to retain the property until he is reimbursed as counter• · ‘~ . claimed.·· Accordingly, I would sustain the judgment and oM.er for pQSsesslon with mesne profits. . . . . I turn next to the question of compensation. ‘ I agree that tho position of lessees with respoct to improvements made by them is regulated not by Article 372 but by Article 1544 of the Civil Code (Article 1640 Q~ebec <;livil Code); which reads, · ” 1544. The lessee has a right to remove, before the expiration of the lease, improvements and additionR which he has made, proVided he leaves ·. the property in the state in which he received it ; nevertheless, if the improvement.<~ or additions be incorporated with the thing leased, with. · nails, linie, or cement, the lessor may retain thorn on paying the _value •. .’.’·•.;,,,• .. , •: · • · Mignault,’in his treatise on the CiVil Law, commenting onArtiole 1640 of the·; “‘ “‘”b Q b Cod V l 7 323 tate ‘; · : ·.. ·_ “Ei the r th~:improve~ents a~d additions are sus~tible ~fbemg re~ov~ .~r”it-~r~~;”; ·. ·.without deteljorating the immoveable, or they cannot·_ be removed witho,u~ ~~·. , . deteriorating it. ,In the first case, the lessee cannot’ compel’the owner w;~-~-.’:1: <,, , . pay their value, unless the latter has ordered them to be made. , Bttt”be~·~1i.’.6i •- . · . · can remove. them at his own expense, proVided he can do. so with Mva.ntag«t”>r,’,~f::;’::l’:i·-;~ ‘ to himself (argument from art. ‘417, last para.graph)\and.-proVided:.?he’;:~ ments or additions are attached to the property .leased ·hY”riaiJs, motta.r~;;·,< ;/ :,··· or cement, the law permits the lessor to treat thein as having been attaohed’i’. ·’ · ·. ,, · for a permanency, and to retain them on paying their value, but the’terinS;t · :·.( of the article make it clear that this is an option granted tt> the proprietor~ ~-r ··~ .· , ‘, . In the instant case the trial judge has found that the Respondents gave their t’· .·- .: .. · -.. ~..,.– A-,. . ~:’·_. ,._·_r-~ · .; > approval and consent to the construction of the building on the land leased. · The :’-“structure is one that was built with concrete blocks, and, in my view, iR one” attached …. to the property leased by nails, mortar or cement.” Having expressly granted · . :.· ‘ ‘ · t h e i r approval’ and consent the Respondents cannot, I think, stand by and enrich .’:. · .· themselves without the just payment of compensation to the Appellant. In my , opinion the Respondents must be taken in the circumstances of this case to have ‘exercised their option and to have elected to treat the improvements or additions as having been attached for a permaooncy, and to retain them on paying their value- In the result, I would allow (i) and (iii) of the counterclaim and remit tho matter for the trial judge to assess~the compensation due to the Appellant for the improve. menta or additions made. Also, I would allow a set-off of any amount payable to th~ Respondent against any amount payable to the Appellant. In my ?iew there should be no order made as to costs. I agree I also agree N. A. PETERKIN, JWJtice of Appeal. R. A. NEDD, JWJtice of Appeal (Acting). SIR MAURICE DAVIS, Ohief Jwtice .