Buang bin Jabar v Soon Peng Yam and Chan Ah Kow as trustees of the Chinese Swimming Club
|Judith Prakash JC
|25 April 1994
| SGHC 113
|High Court (Singapore)
|06 December 2012
|Wee Han Kim (Wee Eng Lock & Son)
|Kirpal Singh with Mak Kok Weng (Mak & Partners)
| SGHC 113
Coram: Judith Prakash JC
GROUNDS OF DECISION
In this Originating Summons, the plaintiff claimed a declaration that he had acquired a possessory title to those portions of lots 46-7 and 46-10 of Mukim 25, Singapore, coloured red on the survey plan annexed to the Summons on which stands the building known as No. 86 Kampong Amber, Singapore, by virtue of his exclusive continuous and undisputed adverse possession thereof for a period in excess of 12 years. He also asked for certain consequential orders. The land claimed by the plaintiff covered an area of approximately 2,782 square feet. The paper title to the land was in the name of the Chinese Swimming Club ("the Club") and the defendants to the action were sued as the trustees of the Club.
After hearing submissions and considering the affidavit evidence placed before the court, I made a declaration that the plaintiff had acquired a possessory title to that portion of the named lots occupied by the house 86, Kampong Amber by virtue of his adverse possession thereof. The area of the land so awarded to the plaintiff was approximately 86 square metres. I made certain consequential orders and awarded the plaintiff 75% of the taxed costs. The defendants have now appealed against the whole of the decision.
The plaintiff filed two affidavits in support of his application. In his first affidavit, the plaintiff said that the original atap house known as No. 86, Kampong Amber was built by his paternal grandfather, Hassan, in 1920 or 1921. Hassan lived in it till his death in 1930. The plaintiff lived in the house for a while in 1928 and then moved out. Between Hassan's death and 1940 various relatives occupied the house. The plaintiff moved into the house again in 1940 and has lived in it ever since with his family.
Neither the plaintiff nor his grandfather had ever paid rent to anyone in respect of the land on which the house and its curtilage stand. Originally the whole area was owned by a Chinese merchant, Lee Choon Guan, who had said that the Malay kampong folk in the area could stay in their houses free of land rent and that they only needed to pay the house tax to the municipal authorities. Once a year the kampong folk would go to Lee Choon Guan's office in D'Almeida Street to pay the house tax. Lee Choon Guan died in 1924.
After the Second World War, the Club acquired lots 46-7 and 46-10 of Mukim 25 ("the property"). It appointed one of the residents to collect land rent from the kampong folk but the plaintiff refused to pay as he had never paid any rent before. The Club did not take any action to enforce its rights as landlord. On 23 March 1957 the plaintiff made a statutory declaration claiming adverse possession of the house 86, Kampong Amber and the land on which it stood which he described as having a length of 66 ft and a breath of 45 ft. In his statutory declaration he said that he had been in adverse possession of that land and the house thereon for a period of more than 23 years and that he had erected the house himself.
Shortly thereafter the plaintiff received a letter from Mr S K Lee, solicitor for the Club, asking him to pay a quit rent of $2 a month and offering to waive all arrears. The plaintiff refused to pay and maintained his refusal when Mr S K Lee wrote again to reduce the ground rent to $1 per month. In 1967, the plaintiff converted the house into a zinc and plank house. He obtained approval of the municipal authority for this but did not ask for or receive any approval from the Club. The plaintiff has paid the property tax on the house for the past several decades.
In his first affidavit in reply, Mr Mei Phei Sitt, the general manager and secretary of the Club, alleged that the plaintiff rented the piece of land in question from the Club at a ground rent of 50 cents per month and built a plank and zinc dwelling house thereon. Mr Mei did not however produce any evidence to show that the plaintiff had any time paid the ground rent to the Club. He said that the area occupied by the plaintiff was not the portion coloured red in the plan annexed to the Originating Summons but an area of 86 square metres being the area of land on which the house was built and that the house was unfenced.
He also stated that in 1966 the Club instructed Mr S K Lee to make enquiries with the Commissioner of Lands, Singapore to ascertain whether any claims of adverse possession had been filed against the property. The Club was subsequently told that no such claims had been filed and that if anyone were to file such a claim the Commissioner would serve a notice on the Club. To the date of the affidavit no such notice had been received from the Commissioner of Lands.
The next point raised by Mr Mei was that previously negotiations had been carried out between the Club and the plaintiff. These negotiations were not successful as the parties had failed to agree on an acceptable compensation amount. Annexed to Mr Mei's affidavit were copies of letters exchanged between the plaintiff's former solicitors and the Club's solicitors. Mr Mei asserted that the negotiations had been carried out on the basis that the Club was the landlord and the plaintiff a ground tenant.
Finally, Mr Mei contended that the plaintiff had not at any time in the past claimed adverse possession of the land in question and he believed that this issue was raised at the eleventh hour to delay matters and frustrate the Club's application to the Tenants' Compensation Board for vacant possession.
In a second affidavit, Mr Mei stated that when the Club purchased the property in 1949 from the estate of Lee Choon Guan, there were a number of huts built of wood with atap/zinc roofs on it. The plaintiff's hut was one such structure. The Club permitted the various occupiers including the plaintiff to continue in occupation as it did not have an immediate use for the property. All the occupiers, including the plaintiff, knew that the Club had bought the property and employees of the Club would inspect it from time to time to ensure that the huts were not enlarged or extended. The Club was unable to evict the occupiers, including the plaintiff, because of the Control of Rent Act (Cap 58). Negotiations were, however, held from time to time between the Club and the plaintiff and the other occupiers, to explore the possibility of getting the occupiers to vacate the property in exchange for reasonable compensation. The Club failed to reach settlement with most of the occupiers, including the plaintiff.
When the property was brought within the provisions of the Controlled Premises (Special Provisions) Act, the Club's architect submitted development plans to the Competent Authority for approval. After the plans were approved, the Club filed applications with the Tenants' Compensation Board, on 26 December 1992, to recover the property. The application and affidavits in support were served on the plaintiff on 16 February 1993. The Club's application before the Tenants' Compensation Board was fixed for hearing on 3 September 1993. At the hearing the plaintiff alleged for the first time that he was in adverse possession of the land occupied by him.
In reply to the two affidavits filed by Mr Mei, the plaintiff filed a second affidavit in which he: 1. stated the four letters exhibited to Mr Mei's affidavit were part and parcel of previous correspondence between the parties conducted on a without prejudice basis. He asserted that the fact that the letters were not marked `without prejudice' did not take them out of the privilege and he annexed other letters passing between the two firms of solicitors which were specifically marked without prejudice; 2. objected to the Club's disclosure of the previous negotiations and to their admissibility in evidence in the proceedings since he had not waived the privilege; and 3. stated that since as early as 1979, the Club had treated him as a trespasser. He annexed copies of letters from M/s Yap & Yap, the Club's then solicitors, which showed that on 10 October 1979 they had served him with a notice to quit and deliver to the...
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