Ahmad Kasim Bin Adam v Moona Esmail Tamby Merican s/o Mohamed Ganse and others

• Jurisdiction: Singapore
• Judge: Foo Chee Hock JC
• Judgment Date: 13 February 2017
• Neutral Citation: [2017] SGHC 19
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 397 of 2015
• Year: 2017
• Published date: 17 April 2019
• Hearing Date: 29 September 2016,16 December 2016,15 December 2016
• Plaintiff Counsel: Chishty Syed Ahmed Jamal (A C Syed & Partners)
• Defendant Counsel: The first and second respondents unrepresented,Khoo Boo Jin and Leon Michael Ryan (Attorney-General's Chambers)
• Subject Matter: Land,Adverse possession,Compulsory acquisition
• Citation: [2017] SGHC 19

Foo Chee Hock JC: Introduction

In the present Originating Summons (“the OS”), the applicant applied for a declaration that he and/or his father had, by way of adverse possession, acquired title to Lot 28W Mukim 27 (“the Land”).¹ He also applied for a declaration that the award under s 10 of the Land Acquisition Act (Cap 152, 1985 Rev Ed) (“LAA”) dated 18 March 1988 (“the Award”) “was invalid and to be set aside being null and void”.² The applicant made the claims in his personal capacity as well as in his capacity as the administrator of his father’s estate. On 16 December 2016, I dismissed the OS. The applicant has now appealed against my decision.

Background facts

This case concerned a piece of valuable real estate in the eastern part of Singapore. The Land had an approximate area of 9,636.6 m2, with most of the area used as burial grounds.³ The remaining area was occupied by a house alongside some structures wherein the applicant and his family allegedly resided from 1950 (“the Palm Drive House”).⁴

With a long history stretching back to 1888, the Land was initially acquired by the first respondent, one Moona Esmail Tamby Merican s/o Mohamed Ganse. In the same year, the Land was mortgaged to the second respondent, Ahna Cheena Kana Pana Raman Chitty s/o Koopan Chitty. There were no other recorded transactions in relation to the Land until it was formally vested in the State in September 1988.⁵

On 27 November 1987, Notification No 4554 was published in the Government Gazette declaring that the Land was needed for a public purpose.⁶ Under the Master Plan 1980, the entirety of the Land was “zoned for cemetery use”.⁷ On 18 March 1988, the Collector of Land Revenue (“the Collector”) awarded a sum of $18,800 as compensation to the first and second respondents.⁸ However, neither of them collected the compensation. Subsequently, pursuant to an Order of Court dated 20 June 1988, the Collector paid the sum into Court.⁹ On 12 September 1988, the title of the Land was vested in the State.¹⁰ Throughout the entire time, neither the applicant nor his father claimed to have title to the Land by adverse possession or sought any compensation.¹¹

In 2009, the graves located on the Land were exhumed.¹² This prompted the applicant to make some enquiries that ultimately led him to discover that the Land “had already been acquired by the government in 1988”.¹³ Sometime around September 2009, the applicant was asked by the Singapore Land Authority (“SLA”) to vacate the Land.¹⁴ By 30 June 2016, vacant possession of the remaining Palm Drive House was delivered to the SLA.¹⁵

I now turn to the facts on which the applicant based his claim. According to the applicant, in the early 1950s, the Village Head of Kampong Siglap allowed his grandfather to build a house on the Land and reside there permanently.¹⁶ The applicant’s grandfather was also tasked by the Village Head to maintain the “graveyards” on the Land.¹⁷

The applicant claimed that prior to 2009, nobody had interrupted or questioned his and his family’s occupation of the Land.¹⁸ In support of this, he averred that he and his family continued paying the property tax, utility bills and television licence fees even after the Land was vested in the State in 1988.¹⁹ In this connection, the Inland Revenue Authority of Singapore refunded the property tax collected after September 1988 upon discovering that the tax in respect of the Land was still being paid.²⁰

On 30 April 2015, the applicant filed the OS. The first and second respondents were deceased, and were not represented in the present proceedings. The third respondent was the SLA. The fourth respondent, the Attorney-General, was joined as the representative of the Government by an Order of Court dated 18 May 2016.²¹

The parties’ cases

There were two parts to the applicant’s case.²² First, it was argued that the applicant and/or his father had obtained title to the Land by way of adverse possession before September 1988. Second, the applicant submitted that the Award ought to be set aside for want of compliance with the provisions under the LAA, especially the service requirements.

The third and fourth respondents averred that the elements of adverse possession were not satisfied because the applicant and/or his father did not have physical possession of the Land²³ and did not intend to exclude the world at large from the Land.²⁴ In relation to the Award, the third and fourth respondents submitted that the applicant had mistakenly relied on the LAA (ie, the current version of the Act). They contended that the applicable legislation was the Act as amended up to 27 November 1987 (“1987 LAA”), the date of the declaration in the Government Gazette. They argued that the Collector had complied with the requirements of the 1987 LAA and that the Award must stand.²⁵

Issues to be determined

I found that there were two threshold issues, the determination of which would dispose of the OS: whether the applicant and/or his father had obtained title to the Land by way of adverse possession before the compulsory acquisition was completed in 1988; if the applicant and/or his father had obtained title to the Land, whether the Award could be set aside for want of compliance with the applicable legislation.

I will address both issues in turn. In my judgment, the applicant could neither satisfy the elements of adverse possession nor show that the Award could be set aside.

Adverse possession

The applicant had the burden to prove that title had accrued to him and/or his father by adverse possession: see Lee Martin and another v Wama bte Buang [1994] 2 SLR(R) 467 (“Lee Martin”) at [15]. In this regard, the relevant principles to establish adverse possession could be briefly summarised as follows: First, the adverse possessor must establish that he had been in factual possession of the land for at least 12 continuous years: see Chua June Ching Michelle v Chai Hoi Tong and others [2011] 4 SLR 418 at [9]–[10]. Second, the possession of the land must be adverse to the owner ie, the adverse possessor must have acted inconsistently with the owner’s intended use of the land: see Tan Kee (suing as an administrator of the estate of Poh Wong, deceased and in her own personal capacity) and Others v The Titular Roman Catholic Archbishop of Singapore [1997] SGHC 281 (“Tan Kee”) at [47] and Re Lot 114-69 Mukim 22, Singapore and another action [2001] 1 SLR(R) 811 at [37] and [53]. Third, the adverse possessor must have intended to exclude the world at large from the land: see Lee Martin at [16] and Moulmein Development Pte Ltd v Teo Teck Guan and another [1998] 1 SLR(R) 195 (“Moulmein Development”) at [20]. Fourth, blatant enclosure and inhabitation of the land were the strongest evidence of adverse possession. Although these were not the only ways to establish adverse possession, the court generally expected the adverse possessor to “raise the flag of hostile possession by occupation without permission and … keep it flying until it ripens into a title by adverse possession”: see Tan Kee at [47].

Distilling the above principles for practical application, there were two main elements that the applicant must establish: (i) factual possession of the Land (ie, factum possidendi) and (ii) intention to possess the Land (ie, animus possidendi). On the evidence presented to me, however, the applicant failed to establish both elements.

The applicant faced multiple evidentiary hurdles in his attempt to establish factum possidendi. In the OS, he claimed that he and/or his father had adversely acquired all the right, title and possession of “the whole plot of [the Land]” [emphasis added].²⁶ However, the major portion of the Land was a cemetery that members of the public could freely access, and the Palm Drive House occupied only a small area.²⁷ The applicant could not show in any meaningful way that they possessed the entirety of the Land. Faced with this conundrum, counsel for the applicant clarified orally during the second hearing that the applicant was only claiming the area comprising the Palm Drive House.²⁸ No application was taken out to amend the OS, but this was ultimately immaterial because the applicant also failed to show that he and/or his father was in possession of the Palm Drive House for 12 continuous years.

To begin with, I agreed with the third and fourth respondents that there were a number of inconsistencies in the applicant’s evidence which undermined his case.²⁹ For instance, the applicant claimed that his grandfather and father lived in the Palm Drive House since 1950.³⁰ But when the applicant was born on 9 October 1950, his birth certificate recorded “497 Woo Mon Chew Road” as his and his father’s address.³¹ Similarly, although the applicant asserted that he lived at the Palm Drive House with his first wife from 1973 to 1980,³² the documentary evidence suggested otherwise. The birth certificate of his daughter, who was born on 10 March 1977, stated the applicant’s address as “34 F, Jalan Murai off Lim Chu Kang Road 17 M/S”.³³

Given the fragmentary and inconsistent nature of the applicant’s evidence, it was unsurprising that he could not even definitively identify the point at which his and/or his father’s alleged adverse possession started. At the first hearing, counsel for the applicant initially submitted that the adverse possession started in 1955.³⁴ Then he changed his position and asserted that it commenced in 1961.³⁵ Eventually, at the second hearing, counsel settled on the years from 1961 to 1964.³⁶ To say the least, the applicant’s inability to crystallise his case and pinpoint when the adverse possession commenced demonstrated the inherent weakness of his case.

There was also the fact that the applicant’s father was not living at the Palm Drive House from 19 May 1964 to 11 November 1970 because he was incarcerated in Changi Prison.³⁷ The applicant contended that...