Republic Bank Limited v Lochan and another

In construing a conveyance, clearly stated boundaries ordinarily identify the land conveyed, while an erroneous statement of acreage may be disregarded where the subject matter is otherwise certain. The court must first decide which of conflicting descriptions is the true description; the maxim falsa demonstratio non nocet does not decide that question. An appellate court should not determine an alternative ground that was neither evidenced nor argued at first instance, particularly where an intervening party was confined to another issue. A mortgagee’s rights are dependent on those of its mortgagor. Proprietary estoppel based on building on another’s land requires the owner to have been, or ought to have been, aware of the relevant facts.

The respondents claimed possession of land which they said had passed to them under a 1975 deed tracing title to a 1909 deed. Mr Jagpersad claimed competing paper title through a 1910 deed and later mortgaged the land to the Bank.

Jones J held that the 1909 deed included the disputed premises and that the respondents therefore had title. The Court of Appeal remitted the paper-title issue to the judge, who reaffirmed her conclusion. It later dismissed the appeals, additionally relying on adverse possession. The Bank appealed to the Privy Council. The central issues were whether the Court of Appeal could rely on adverse possession and whether the respondents’ paper title was established.

Lord Neuberger delivered the judgment of the Board. The Bank’s appeal was dismissed, and the first-instance judgments in favour of the respondents were affirmed.

1. The Court of Appeal could not dismiss the Bank’s appeal on adverse possession. That ground had not been argued, supported by evidence or decided before Jones J. Further, the Court of Appeal had previously limited the Bank to the paper-title issue. Deciding the appeal on adverse possession was therefore procedurally improper and fundamentally unfair to the Bank.
2. The respondents nevertheless had established paper title. The boundaries in the 1909 deed were sufficiently clear and pointed to the inclusion of the disputed premises. The stated area of six acres was treated as an underestimate. Where boundaries identify the conveyed property with genuine precision, an erroneous statement of quantity will not displace that description. The maxim falsa demonstratio non nocet operates only after the court has determined which conflicting description is the true one.
3. The argument that the western boundary was defective because it adjoined a river failed. Prima facie, ownership of land adjoining a river extends to the river bed ad medium filum. The factual and expert evidence, and the plans, did not require a different conclusion.
4. Later conveyances, subsequent use and occupation, and the surprising possibility that the land had been conveyed to different persons could not justify construing the 1909 deed by reference to the later 1910 deed or subsequent dispositions. Conveyancing errors, including errors in acreage, are not unusual.
5. The Board briefly observed that building on another’s land may support proprietary estoppel, but only where the owner was, or ought to have been, aware of the relevant facts. The circumstances did not suggest a promising claim by Mr Jagpersad.
6. As the Bank’s rights as mortgagee depended on Mr Jagpersad’s rights, Mr Jagpersad had no defence to the possession claim and the Bank’s appeal necessarily failed. The Bank was ordered to pay the respondents’ appeal costs unless contrary written submissions were received within 28 days.

• Privy Council: The Bank’s appeal was dismissed. The first-instance judgments establishing the respondents’ paper title were affirmed, although the Court of Appeal’s adverse-possession reasoning was rejected. [2015] UKPC 26.
• Court of Appeal of the Republic of Trinidad and Tobago: The Court remitted the paper-title issue to Jones J and later dismissed the appeals of Mr Jagpersad and the Bank, relying on paper title and adverse possession.
• First instance: Jones J held that the disputed premises were included in the property conveyed by the 1909 deed and that title therefore passed through the subsequent deeds to the respondents.