Ahmad Kasim bin Adam v Moona Esmail Tamby Merican s/o Mohamed Ganse

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Andrew Phang Boon Leong JA,Judith Prakash JA
• Judgment Date: 10 April 2019
• Court: Court of Appeal (Singapore)
• Docket Number: Civil Appeal No 4 of 2017
• Date: 10 April 2019

Ahmad Kasim bin Adam (suing as an administrator of the estate of Adam bin Haji Anwar and in his own personal capacity)

and

Moona Esmail Tamby Merican s/o Mohamed Ganse and others

[2019] SGCA 23

Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Judith Prakash JA

Civil Appeal No 4 of 2017

Court of Appeal

Administrative Law — Remedies — Party seeking monetary compensation for breach of natural justice in valuation of award made pursuant to Land Acquisition Act (Cap 152, 1985 Rev Ed) — Party seeking declaration that award made pursuant to Land Acquisition Act be set aside — Party seeking order for re-hearing for assessment of compensation — Whether monetary compensation a remedy for breach of natural justice in valuation of award made pursuant to Land Acquisition Act — Whether award made pursuant to Land Acquisition Act amenable to setting aside by declaratory relief — Whether order for re-hearing for assessment of compensation could be made — Section 53 Land Acquisition Act (Cap 152, 1985 Rev Ed)

Land — Adverse possession — Factual possession — Part of land freely accessible — Adverse possessor paying bills and taxes in connection with land — Party other than true owner granting permission for adverse possessor to occupy land — Whether title could be claimed over entire plot of land — Whether factual possession established — Whether possession adverse when permission given by party other than true owner

Land — Adverse possession — Intention to possess — Adverse possessor believing land to be waqaf land — Adverse possessor believing land not capable of being owned by any person — Adverse possessor intending to exclude others from land — Whether intention for adverse possession established

Held, allowing the appeal in part:

(1) It was untenable for Mr Ahmad to maintain a claim to the entire Land. The cemetery was freely accessible by members of the public and was not surrounded by a fence or any other form of enclosure. There was no evidence that Haji Anwar, Mr Adam or Mr Ahmad controlled access to the cemetery in any way or that they did so as an assertion of their exclusive possession of the same. Thus, the affected area of the Land had to be limited to the area occupied by Mr Ahmad's family as their residence. The portion of the Land over which Mr Ahmad could potentially claim title comprised: (a) the site area set out in the TOLs issued by the SLA to Mr Ahmad; and (b) an additional area which occupants would have used to access the House: at [43] and [45].

(2) There was ample evidence that Mr Adam and his family occupied the House from as early as 1955 and that they continued to occupy the House until at least 1997, when Mr Adam passed away. Building a house on part of the Land and living in it as a family was very strong evidence of adverse possession. Mr Adam also exercised acts of ownership over the House such as the payment of property tax and his compliance with a notice from the Ministry of the Environment requiring the installation of a sewerage system at personal cost. The requirement for a continuous 12-year period of occupation was thus satisfied. The period of adverse possession that counted towards the limitation of the true owner's right of action was 1955 to 1967. Although Mr Adam was in prison for part of this 12-year period, he continued in occupation through his family members, who carried on residing at the House as his licensees and on his behalf: at [47], [48] and [51].

(3) Possession was not adverse only where the true owner of the land had granted the occupier permission to occupy the land. In the present case, the true owners of the Land were the paper owners and their heirs. Mr Ahmad's account was that a party who had no interest in the Land, namely Cikgu Osman bin Hassan, allowed Haji Anwar to build a permanent home on the Land. Since permission was not granted by the paper owners, prima facie, the family's possession of the Land was adverse to the true owners: at [57].

(4) The principle that a licensee possesses the land on behalf of the licensor (because by accepting the benefit of the licence or permit, the licensee is estopped from denying that the licensor has the right to allow him the land and, by implication, that the licensor had a superior title to his) did not apply to defeat Mr Ahmad's claim in the present case. The village headman was not asserting, and had never asserted, any right to the House against Mr Adam. It was also not clear from the evidence that the grant of permission to reside on the Land entailed an admission by Haji Anwar that the headman had superior title to the Land. Nothing in the grant of “permission” indicated that Mr Adam's family had anything less than exclusive possession or that the village headman reserved any right of control over the House: at [62] to [65].

(5) Mr Adam and his family demonstrated an intention to exclude all others from the House as far as was reasonably practicable. What was required for adverse possession was not an intention to own or to acquire ownership of the land, but an intention to possess it. Their belief that the Land as a whole was waqaf land did not preclude an intention to exclusively possess the portion of the Land given to them as a benefit in kind for their caretaking services. This intention was manifested in their construction of the House, their residing in the House without paying any rent, their construction of sanitary facilities, and their payment of property tax and utility bills: at [68].

(6) The question whether there was a breach of natural justice turned upon whether notice could be deemed to have been served on Mr Adam by virtue of the posting of the Notice on the Land and whether the 1987 LAA required notice to be affixed to the House. However, it was not necessary to resolve this issue because even if Mr Ahmad had succeeded in proving a breach of natural justice, he had no remedy before the court: at [76].

(7) There was no legal basis for the court to make a fresh award of monetary compensation to Mr Adam's estate. Monetary compensation was not one of the reliefs prayed for in OS 397. More fundamentally, the 1987 LAA did not give the court jurisdiction to issue a compensation award at first instance. It was the Collector who made an award after holding an inquiry, and the award was then appealable to the Appeals Board and thereafter to the Court of Appeal on a question of law: at [77].

(8) Compensation was not a suitable form of relief for a lack of notice or a breach of natural justice in the making of the Award. There was no relevant constitutional breach in the present case because our Constitution did not enshrine a right to property. Mr Ahmad had not shown how a breach of natural justice or a breach of statutory procedure could independently give rise to a compensatory remedy: at [78] and [80].

(9) The Award could not be set aside by declaratory relief. Nor could an order be made for a fresh hearing by the Collector. Section 53 of the 1987 LAA imposed an absolute bar on the issue of any court order declaring that the Award was invalid and should be set aside as null and void as prayed for in OS 397. The compensation would have been paid, if at all, as an award made by the Collector under s 10 of the 1987 LAA. In doing so, the Collector would have been exercising quasi-judicial functions by virtue of the statutory powers vested in him. The appropriate procedure for challenging the exercise of such powers would be by way of the process of judicial review. Judicial review was not a proceeding which was banned by s 53 of the 1987 LAA. The appropriate remedy for the alleged breaches, if established, was to quash the Award and mandate that the Collector conduct a fresh inquiry. Section 53 of the 1987 LAA barred actions for declarations to set aside the Collector's award even where the cause of action was an alleged wrong in public law, such as a breach of natural justice. Such declarations aimed to achieve, through the ordinary originating process, the effect of a quashing order, which was the primary and most appropriate remedy for achieving the nullification of a public law decision: at [81], [82] and [89].

[Observation: In the unusual case where an applicant sought to challenge an acquisition or award on the basis of a breach of natural justice or a lack of notice and he or she had only learnt of the acquisition or award after its making, it might at first glance appear that such an applicant would be left without a remedy if he or she were confined to the judicial review process. The most obvious hurdle was the requirement in O 53 r 1(6) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) that applications for leave for judicial review be made within three months after the act which was sought to be quashed. However, this time could be extended if the delay was accounted for to the satisfaction of the Judge. An applicant in such a position would have at least an arguable case for a time extension. Further, in certain instances, there could no longer be prejudice to the Government arising from an inability to use the land pending the applicant's challenge, such as the present case where Mr Ahmad did not seek to challenge the acquisition but only the Award. Therefore, an applicant who sought to challenge an acquisition or award on the basis of a breach of natural justice would not usually be left without a remedy: at [90].

If a breach of natural justice was established, Mr Ahmad's remedy was to be placed in the position as if Mr Adam's estate had received an award of compensation in 1988, with the time value of the award being accounted for through an appropriate adjustment or award of interest. This meant that the Collector and the Appeals Board would be guided by s 33 of the 1987 LAA when assessing the compensation due to Mr Adam's estate: at [92].]

Case(s) referred to

Brazil v Brazil [2005] EWHC 584 (Ch) (refd)

Buang bin Jabar v Soon Peng Yam [1994] SGHC 113 (refd)

Cocks v...