Chua June Ching Michelle v Chai Hoi Tong and others

• Jurisdiction: Singapore
• Judge: Choo Han Teck J
• Judgment Date: 29 July 2011
• Neutral Citation: [2011] SGHC 180
• Court: High Court (Singapore)
• Hearing Date: 31 January 2011,15 October 2009,13 October 2009,01 February 2011,12 October 2009,14 March 2011
• Docket Number: Suit No 377 of 2009
• Plaintiff Counsel: Edwin Lee and Joni Tan (Eldan Law LLP)
• Defendant Counsel: Samuel Chacko and Angeline Soh (Legis Point LLC)
• Subject Matter: Land,Adverse possession
• Published date: 17 August 2011

Choo Han Teck J:

“Adverse possession” is the law that recognises one’s claim to ownership of soil and plaster he knows do not belong to him. That law will become obsolete in time. This case is a relic from a past not affected by the change in law, and concerns the ownership of a property located at 89 Amoy Street, Singapore 069908 described as lot number TS3-99095P in the lot base system operated by the Singapore Land Authority (“the Property”). Chua June Ching Michelle (“the Plaintiff”) and Chai Hoi Tong (“the Defendant”) are rival claimants to the Property, both claiming by the doctrine of adverse possession. The 2nd, 3rd and 4th defendants did not enter an appearance in the action, and were not involved in the proceedings at trial.

The history of this case so far as it can be proved or was undisputed showed that on 13 June 1936, a Statutory Declaration declared Tan Seang Guat Neo the owner of the Property by way of adverse possession. Tan Seang Guat Neo bears no relation to either the Plaintiff or the Defendant. The Plaintiff and Defendant could not agree on what happened thereafter. The Plaintiff’s version of the story was as follows. Tan Seang Guat Neo leased the Property to the Defendant’s predecessors for $840 a year. On 23 October 1936, and after the lease was granted, Tan Seang Guat Neo mortgaged the Property to the Plaintiff’s grandmother, one Goh Tim Hneo (“the Plaintiff’s grandmother”). Subsequent to the grant of the mortgage, the Defendant’s predecessors paid the rent to Goh Tim Hneo. It was not known why the “rent” of $840 was collected by Goh Tim Hneo (the mortgagee) rather than Tan Seang Guat Neo (the registered owner), but in any event this showed that if Goh Tim Hneo was to have any claim to ownership of the Property, she would have to establish her claim by way of adverse possession, and significantly, the Plaintiff cannot have a better claim through her predecessors than her present claim (also based on adverse possession). Tan Seang Guat Neo and/or her successors, if any, did not made any claim over the Property and in light of this, it is not necessary to determine the effect of the mortgage on the claims of either party.

The Plaintiff’s grandmother granted a power of attorney to the Plaintiff’s father, one Chua Eng Cheong (“the Plaintiff’s father”) on 24 January 1951. From that time on, the Plaintiff’s father collected the “rent” from the Defendant’s predecessors. The Plaintiff’s grandmother died in 1955 and the Plaintiff’s father died in 1971. The Plaintiff’s case was that from 1971, until December 2008, she had been collecting payments by way of rent from the Defendant amounting to $840 a year, and her adverse possession claim rests on her assertion that she was the landlord of the Property. I will hereafter refer to the $840 payments as “the Payments” as a neutral term rather than “rent”.

The Defendant’s version of the facts differed from the Plaintiff’s in several important respects. He disputed that the Payments were made, and also the nature of the Payments. He claimed that if the Payments were made, they were not rental payments but financial assistance. He testified that the Plaintiff’s father was in financial difficulty from as early as 1956, and frequently sought financial assistance from the Defendant’s own father, who generously offered $840 a year for that purpose. The Defendant’s father was one of two partners in a partnership known as Kwong Thye Hin, which had its business premises at the Property and had as its other partner one Chai Xing. Upon the Defendant’s father’s death, the Defendant took over his share of the partnership. Chai Xing has since passed away and the partnership has since been dissolved.

On 11 September 2008, the Defendant filed Originating Summons No 1183 of 2008 (“the application”), ex parte, for a court order to grant him title to the Property as adverse possessor as against the 2nd to 4th defendants (“the defendants”) named in the counterclaim in the present proceedings. The Plaintiff was not named as a defendant to that application. The Defendant claimed that he was unable to locate the defendants, and he was allowed to serve the application by substituted service. He placed advertisements in two local newspapers (the Straits Times and Lianhe Zaobao) on 26 September 2008 giving notice of the application. However, the Plaintiff claimed that she received no notice of the application and thus did not attend the hearing. The Defendant was granted a declaration by an ex parte Order of Court dated 16 October 2008 (“the Order of Court”) that he was the owner of the Property and the building erected thereon by reason of his adverse possession of the Property for a continuous period of 12 years prior to 1 March 1994. He subsequently procured the registration of title to the Property in his name on 18 December 2008. On 6 April 2009, the Plaintiff lodged Caveat No IB/325458M against the Property, and when the Defendant sought to remove the caveat, she initiated the present proceedings.

The Plaintiff claimed that the Order of Court was irregularly or fraudulently obtained. Before this court, she sought a declaration that the Order of Court be set aside on the grounds that it was obtained ex parte. The Plaintiff also sought an order that the Defendant’s title to the Property be extinguished and the land-register be rectified by cancelling the registration on the grounds of fraud. The Plaintiff further sought a declaration that she was the owner of and was entitled to all the rights and title to and possession of the Property, and an order that the Registrar of Titles registered her as the proprietor of the Property. In his counterclaim, the Defendant prayed for an order that the Caveat against the Property be removed, that the Registrar of Land Titles be directed to remove and/or expunge the Caveat from the land register, and for damages to be assessed.

To succeed, a party has to show both that he or she had adversely possessed the Property as against the paper owner Tan Seang Guat Neo (who did not enter appearance), and that he or she had adversely possessed the Property against the other. Order 32 rule 6 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) provides that an ex parte order may be set aside in the interests of justice, if the party who was not heard wishes to object. One of the grounds for the setting aside of ex parte orders is that the applicant did not make full and frank disclosure of material facts in his application (see Nikkomann Co Pte Ltd v Yulean Trading Pte Ltd [1992] 2 SLR(R) 328). Here, the Plaintiff alleged that the Defendant deliberately did not disclose the material fact that he paid rent to her in respect of the Property in his ex parte application. The nature of that payment was an important issue before me. I shall revert to this issue shortly.

Indefeasibility of the registered title is an important feature of the system of land registration. An exception to this indefeasibility is the court’s power to order rectification of the land-register if it is satisfied that a registration was procured through fraud, omission or mistake, as stated in s 160(1)(b) of the Land Titles Act (Cap 157, 2004 Rev Ed). In this case, the Plaintiff claimed that the Defendant had been dishonest in procuring the registration of the Property in his name, because he had deliberately not disclosed that he had paid rent to her in respect of the Property. As stated in United Overseas Bank Ltd v Bebe bte Mohammad [2006] 4 SLR(R) 884 at [34] —

The hallmark of fraud is dishonesty or moral turpitude, which usually stems from greed, and greed simply means taking something of value which does not belong to you.

Under s 50 of the Land Titles Act 1993 (Act No 27 of 1993) (“LTA 1993”) which came into effect in Singapore on 1 March 1994, acquisition of title by adverse possession was effectively abolished. However, the LTA 1993 contained transitional provisions (see s 174(8)) to preserve the rights which had already crystallised prior to 1 March 1994. While s 174(8) is not found in the edition of the Land Titles Act in force today, ie the Land Titles Act 2004 (Cap 157, 2004 Rev Ed) (“LTA 2004”), it survives and operates by virtue of s 5 of the Revised...