Hurhangee v Ramsawhook and others (Mauritius)

On a final appeal, the Privy Council will not ordinarily disturb concurrent factual findings by the courts below. An appeal requires legal error undermining those findings, or the very limited circumstance that the proceedings were not judicial procedure in a proper sense. A court should decide a property dispute within the ambit framed by the pleadings. If it raises a new issue, each party must have a fair opportunity to address it. New legal arguments requiring evidence or local-court analysis may be refused when first raised on a final appeal. The Civil Code provides the statutory framework for acquisitive prescription of immovable property.

Ms Hurhangee challenged Mr Ramsawhook’s claim to have acquired part of a landholding in Mauritius by acquisitive prescription. The trial judge accepted that her father had held title but found that Mr Ramsawhook had occupied the land continuously and openly since 1961, thereby acquiring title after 30 years. The Court of Appeal dismissed her appeal on the basis that the factual finding was open to the trial judge. On further appeal, Ms Hurhangee accepted the factual findings but advanced new arguments concerning occupation as owner, precarious possession, publicity and the possessor’s state of mind. The central issues were whether those arguments could be raised and whether the concurrent findings could be disturbed.

Appeal dismissed. Lord Sales delivered the judgment of the Board.

1. The Board declined to entertain arguments advanced for the first time on the final appeal. They were outside the grounds of appeal, no permission had been sought, and the respondents had not received fair notice. The arguments were not shown to be pure points of law. They were likely to require evidence about the transactions, the public appearance of the occupation and, potentially, the possessor’s state of mind. Introducing them at that stage would also deprive the Board of the considered views of the local courts.
2. The parties’ pleadings define the ambit of a property-rights dispute. A court should decide the dispute within that ambit and according to standards of fairness. It may raise questions during the hearing, but must give each party a fair opportunity to address them before deciding the case on that basis. The passage from Société Civile Kamlaville v Harel 2003 SCJ 209 concerning the power of first-instance judges to assess acts of possession did not impose a duty to investigate unpleaded issues. The Board also expressed grave doubts about a separate obiter suggestion in that judgment concerning mistaken belief in ownership and animo domini.
3. The case presented below was a narrow factual dispute about whether Mr Ramsawhook had occupied the contested land uninterruptedly since 1961. The trial judge accepted his evidence and that of a supporting witness. The Court of Appeal upheld that finding. The Board applied its established practice, supported by Devi v Roy [1946] AC 508, Central Bank of Ecuador v Conticorp SA [2015] UKPC 11, Alcide v Desir [2015] UKPC 24, Al Sadik v Investcorp Bank BSC [2018] UKPC 15, Dass v Marchand [2021] UKPC 2 and Pickle Properties Ltd v Plant [2021] UKPC 6. There was no legal error undermining the concurrent findings, and the case was not exceptional. The findings were plainly open on the evidence.

• Privy Council ([2021] UKPC 25, 4 October 2021): dismissed the appeal, declining to disturb the concurrent factual findings or entertain the new arguments.
• Court of Appeal (18 January 2017): dismissed Ms Hurhangee’s appeal and upheld the trial judge’s finding that the requirements for acquisitive prescription had been established.
• Supreme Court of Mauritius (Angoh J, 9 September 2013): dismissed Ms Hurhangee’s claim and held that Mr Ramsawhook had acquired title by acquisitive prescription.