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Case details

Ciel Ltd and another (Appellants) v Central Water Authority (Respondent) (Mauritius)

Case ID: JCPC 2019/0042

Jurisdiction: Supreme Court of Mauritius

Case summary

Issue

Whether the Appellants have established valid proprietary rights over shares of water in a river and its tributary, those water shares having been granted to a predecessor in title of the First Appellant by a Supreme Court Order of 1888 which is untraceable.

Facts

Reunion Ltd ("Reunion") was a sugar milling company operating in the 1800s. The land on which Reunion had its factory building bordered river Tatamaka and its affluent rivulet (or tributary), called St Martin. Reunion used the water from Tatamaka and St Martin for the running of its sugar factory. A report by an official Land Surveyor in 1888 purported to divide the waters of Tatamaka and St Martin into shares. Reunion was allotted 22.035 cubic feet per minute/shares of the waters. The recommendations of the surveyor were brought into law by a Supreme Court Order of 1888, which is untraceable. By a Supreme Court Order of 1939, Reunion was granted the right to draw additional water from two dams, one on Tatamaka and one on St Martin.

By a deed executed in 1974, Reunion came together with another company, Médine Sugar Estates Company Ltd, to form a "Société crée de fait" – a type of legal entity in Mauritius. Their joint company, called Reufac, was to continue to own and operate the sugar factory. In 1981, Reunion notified the Respondent, the Central Water Authority (the "CWA") both of the existing water rights in Tatamaka and St Martin and of two additional water rights in two different rivers, relying for these on court orders from 1880, 1959 and 1938.

In July 1987 Reufac sold the land on which the sugar factory stood, including the water rights attaching to the land, to the First Appellant, CIEL Limited ("CIEL"). The Second Appellant, Tropic Knits Limited ("TKL") was at all material times the tenant of CIEL on the land, operating a dyeing and knitting factory there.

In April 1987 TKL requested that the Respondent, CWA, grant to TKL a surface water right for its factory. CWA responded to TKL in May 1989 and stipulated that TKL should apply to the Supreme Court under the Rivers and Canals Act for the right to draw a certain amount of water from river Tatamaka and to pay a certain fixed tariff in return. TKL did not apply to the Supreme Court but instead, from 1989, diverted water from Tatamaka and St Martin by way of a canal for use at its factory. CWA discovered this during a site visit in February 1990. In 1994, TKL sent a letter to CWA claiming that the surface water being diverted by TKL could in fact be private property, of which TKL was now the lawful owner.

In January 2004 CWA commenced proceedings against the Appellants before the Supreme Court of Mauritius. CWA amended its claim in March 2013, seeking declarations that the Appellants do not hold any proprietary rights over the water drawn and diverted from Tatamaka and St Martin and that they are using the water unlawfully. In a judgment of 8 July 2016, the Supreme Court allowed CWA’s claim, holding that the Appellants do not hold any proprietary rights over the water and that they are using it unlawfully. The Appellants appealed and CWA cross-appealed. In a judgment of 12 September 2018, the Court of Civil Appeal dismissed the Appellants’ appeal and allowed CWA’s cross-appeal, ordering the Appellants to pay CWA for the water used from January 1994. The Appellants now appeal to the Judicial Committee of the Privy Council.

Parties

Appellant(s)

  1. Ciel Ltd
  2. Tropic Knits Ltd

Respondent(s)

Central Water Authority

Appeal

Justices

Lord Lloyd-Jones, Lady Arden, Lord Burrows, Lord Stephens, Lady Rose

Hearing start date

10 June 2021

Hearing finish date

10 June 2021

Watch hearing
10 June 2021 Morning session Afternoon session