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

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

[2019] SGCA 23

Court of Appeal

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

Civil Appeal No 4 of 2017

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

A Mohamed Hasim and Syed Ahmed Jamal Chishty (AC Syed & Partners) for the appellant;

First and second respondents unrepresented and absent;

Khoo Boo Jin, Fu QijingandFaith Boey(Attorney-General's Chambers) for the third and fourth respondents.

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 Thanet District Council [1983] 2 AC 286 (refd)

Ee Chong Pang v The Land Administrator of the District of Alor Gajah [2013] 2 MLJ 16 (refd)

Goh Seng Peow & Sons Realty Sdn Bhd v The Collector of Land Revenue, Wilayah Persekutuan [1986] 2 MLJ 395 (refd)

Kheng Chiu Tin Hou Kong and Burial Ground, Trustees of the v Collector of Land Revenue (Housing and Development Board) [1992] 1 SLR(R) 117; [1992] 1 SLR 425 (refd)

Lee Martin v Wama bte Buang [1994] 2 SLR(R) 467; [1994] 3 SLR 689 (folld)

Lim Cheng Chuan Realty Co Sdn Bhd v Kerajaan Negeri Pulau Pinang [1999] 4 MLJ 669 (refd)

Lot 114-69 Mukim 22, Singapore, Re [2001] 1 SLR(R) 811; [2001] 2 SLR 509, HC (folld)

Lot 114-69 Mukim XXII, Singapore, Re [2003] 1 SLR(R) 773; [2003] 1 SLR 773, HC (refd)

Maimon bte Ahmad v Soon Peng Yam [1994] SGHC 117 (refd)

Moulmein Development Pte Ltd v Teo Teck Guan [1998] 1 SLR(R) 195; [1998] 1 SLR 931 (folld)

Ng Boo Tan v Collector of Land Revenue [2002] 2 SLR(R) 633; [2002] 4 SLR 495 (refd)

Ng Chee Keong v Lembaga Letrik Negara [1991] 1 CLJ 567 (refd)

Ng Kim Moi (P) v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus [2004] 3 MLJ 301 (distd)

Per Ah Seng Robin v Housing and Development Board [2016] 1 SLR 1020 (refd)

Powell v McFarlane (1977) 38 P & CR 452 (refd)

Seah Hong Say v Housing and Development Board [1992] 3 SLR(R) 497; [1993] 1 SLR 222 (refd)

Soon Peng Yam v Maimon bte Ahmad [1995] 1 SLR(R) 279; [1996] 2 SLR 609 (folld)

Sze To Chun Keung v Kung Kwok Wai David [1997] 1 WLR 1232 (distd)

Legislation referred to

Land Acquisition Act (Cap 152, 1985 Rev Ed) ss 33, 45, 53 (consd); ss 2, 5, 7, 8, 8(1), 8(2), 10, 11, 23, 29, 33(1), 33(1)(a), 33(5)(e), 41, 45(3)

Land Titles Act 1993 (Act 27 of 1993)

Limitation Act (Cap 163, 1985 Rev Ed) s 9(1)

Limitation Act (Cap 163, 1996 Rev Ed)

Residential Property Act 1976 (Act 18 of 1976) s 3(1)(c)

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 53 r 1(6) (consd)

Federal Constitution (M'sia) Arts 13, 13(1)

Land Acquisition Act 1960 (M'sia) s 68

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

Facts

The appeal concerned a piece of land in Bedok (“the Land”). Until 2009, most of the Land was used as a Muslim cemetery. Until 2016, there was also a house situated on the Land (“the House”).

The Land was gazetted for compulsory acquisition by the Government in November 1987. At the time, the most recent traceable title to the Land showed that it belonged to the first respondent. He had purchased the Land in 1888 and mortgaged it to the second respondent the same year. A notice of acquisition (“the Notice”) was posted on the Land in January 1988 to announce that the Land was required by the Government. The Notice invited persons interested in the Land to appear at the Land Office before the Collector of Land Revenue (“the Collector”) to state the nature of their interest in the Land, and the amount and particulars of their claims to compensation. A notice in similar terms was addressed to the first and second respondents (“the paper owners”), and there was no record of any such notice having been sent to the appellant, Ahmad Kasim bin Adam (“Mr Ahmad”), or his father, Adam bin Haji Anwar (“Mr Adam”).

No one attended the hearing before the Collector on 3 March 1988. On 18 March 1988, the Collector awarded a sum of $18,800 (“the Award”) as compensation for the acquisition to the paper owners under s 10 of the Land Acquisition Act (Cap 152, 1985 Rev Ed) as the same was in force on 27 November 1987 (“the 1987 LAA”). On 20 June 1988, the Collector applied for and obtained an order of court allowing him to pay the sum of $18,800 into court on the basis that the offer of compensation could not be served on the paper owners because they could not be found. The Land formally vested in the State on 12 September 1988.

On 22 April 2015, Mr Ahmad brought proceedings in his personal capacity and as the administrator of the estate of his late father, Mr Adam, by way of Originating Summons No 397 of 2015 (“OS 397”). Among other things, he sought a declaration that he or Mr Adam had acquired title to the Land by adverse possession prior to the State's acquisition in 1988, that the Award made by the Collector in 1988 be set aside and that a re-hearing for the assessment of compensation be ordered because the Award was made without notice to him or Mr Adam as the persons interested in the Land in 1988. There was no prayer for a compensatory remedy.

Mr Ahmad claimed that from the 1950s, his family had lived in the House and occupied the Land as caretakers of the cemetery. His late grandfather, Haji Anwar, began residing on the Land sometime in the early 1950s. Haji Anwar had cleared the dense vegetation on the Land so that it was fit for use as a Muslim cemetery. He was then entrusted with the care of the cemetery, and in return, was given permission by the village headman, Cikgu Osman bin Hassan, to build a house on the Land. Haji Anwar built the House, and Mr Adam later expanded it as the family grew.

In 1973, the Ministry of the Environment wrote to Mr Adam regarding the installation of sewerage and sanitation facilities. Mr Adam consented to this installation and bills were addressed to him for the cost of the installation. Mr Ahmad's family continued to live in the House even after 1988. The family continued to pay property tax, utilities bills and television licence fees in connection with the House until 2013.

Sometime in 2009, Mr Ahmad noticed that the graves on the Land were being exhumed. This prompted him to make inquiries, which led him to discover that the Land had been acquired in 1988. Eventually, the third respondent, the Singapore Land Authority (“the SLA”), wrote to Mr Ahmad to inform him that he was not entitled to remain in occupation of the Land or the House. Following discussions, the SLA issued three successive temporary occupation licenses (“TOLs”), pursuant to which Mr Ahmad was permitted to continue living in the House until 19 July 2016. Mr Ahmad redelivered vacant possession of the House to the SLA on 30 June 2016.

Mr Ahmad appealed against the High Court's decision to dismiss his application in OS 397.

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...