City Developments Ltd v Estate of Syed Allowee bin Ally Aljunied, deceased

• Judgment Date: 22 December 2008
• Date: 22 December 2008
• Docket Number: Originating Summons No 126 of 2008
• Court: High Court (Singapore)

City Developments Ltd

Plaintiff

and

Estate of Syed Allowee bin Ally Aljunied, deceased

Defendant

[2008] SGHC 237

Tay Yong Kwang J

Originating Summons No 126 of 2008

High Court

Land–Adverse possession–Physical possession–Intention to possess–Categories of adverse possession claims–Plot of unregistered land–Developer bought land which enclosed plot–Whether developer, through predecessors of land, was entitled to plot by adverse possession–Whether 12-year period necessary to establish title by adverse possession could be constituted by aggregate of separate but continuous periods of adverse possession by different people–Whether adverse possessor had to know he was trespassing on another's land–Section 177 (3) Land Titles Act 1993 (Act 27 of 1993) and s 9 Limitation Act (Cap 163, 1996 Rev Ed)

The plaintiff, City Developments Limited, sought a declaration that it was entitled to and that it be vested with the legal possessory title of a strip of unregistered land known as Lot 1019M of Town Sub Division 28 (“the plot”), on the basis that the plaintiff, through its predecessors, had been in adverse possession of the plot for a continuous period of 12 years prior to 1 March 1994. The plaintiff had purchased a property known as Lot 178V of Town Sub Division 29 (“the property”) from Kerr Leong Heng Private Limited (“KLH”) in September 1999 for the purposes of redeveloping the property into residential apartments. Unknown to KLH and the plaintiff, the land occupied by KLH and subsequently the plaintiff enclosed both the property and the plot by a chain link fence (“the fence”).

The defendant, Syed Allowee bin Ally Aljunied, deceased (“Syed Allowee”), was the last known owner of the plot as listed in the Registry of Titles. The plaintiff was unable to locate the last known address or identification number of Syed Allowee and thus applied for substituted service of the court documents by advertisements in the local newspapers to invite the personal representatives of the estate of Syed Allowee as well as any other person who had an interest in the estate or was related to Syed Allowee to come forward. One Syed Noah Aljunied (“Syed Noah”) came forward claiming to be the great grandson of Syed Allowee. Two other persons, Harun bin Syed Hussain Aljunied alias Harun Aljunied (“Harun”) and Sharifah Fatimah bte Abdul Kader Aljunied, also came forward claiming to be interested parties in the estate of Syed Allowee. The interested parties claimed to be trustees of the Aljunied trust, which allegedly included properties held in trust by the estates of Syed Allowee and one Omar bin Ally Aljunied. On the question of adverse possession, the interested parties submitted that the plaintiff failed to adduce evidence to prove the requisite elements of physical possession and intention to possess.

Held, allowing the application:

(1) With the enactment of the Land Titles Act 1993 (Act 27 of 1993) (“the 1993 LTA”) which came into effect on 1 March 1994, adverse possession in Singapore was abolished such that no land, registered or unregistered, might be acquired by way of adverse possession save under transitional statutory provisions. There were three categories of adverse possession claims that were presently allowed under the transitional provisions of the present Act (Cap 157, 2004 Rev Ed), one for unregistered land and two for registered land. It would thus be important to distinguish between registered and unregistered land for purposes of adverse possession claims and the relevant date for determining whether the land in question was registered or not for the purposes of such claims was 1 March 1994: at [17], [19] and [20].

(2) If on that date, the land had already become registered, regardless of whether the adverse possessor's right crystallised before or after the land was registered, s 50 of the present Act would apply and no adverse possession claims would be allowed save under ss 174 (7) and 174 (8) in the present Act. However, if on that date, the land was still unregistered land, s 9 of the Limitation Act (Cap 163, 1996 Rev Ed) as amended by s 177 of the 1993 LTA would govern, and if the adverse possessor and/or its predecessors had been in adverse possession of the land for 12 years before the cut off date of 1 March 1994, s 177 (3) of the 1993 LTA would preserve the adverse possessor's possessory interest. The plot in the present case, as of 1 March 1994 and as of to date was still unregistered land, and thus all the plaintiff needed to show was that it and/or its predecessors had been in adverse possession of the plot for 12 years before the cut-off date of 1 March 1994 to be entitled to the plot: at [20] and [22].

(3) Adverse possession would be made out when the adverse possessor was in physical and/or factual possession of the land as if he was the true owner with the intention to possess and exclude all others, including the owner with the paper title. The 12-year period necessary to establish title by adverse possession could be constituted by the aggregate of separate but continuous periods of adverse possession by different people: at [23].

(4) The plaintiff, on a balance of probabilities, had made out a case of adverse possession. Physical possession in the present case could be derived collectively from the various survey plans, the drawing from the surveyor's field book as well as Mr Lee Jit Seam's (the owner of a plot of land adjacent to both the property and the plot) evidence that the fence had always enclosed the plot with the property for at least the requisite 12 years, ie, between 1 March 1982 and 28 February 1994. The fence was a continuous one that enclosed both the property and the plot and it had remained in the same position over the years. Given that the plot was a piece of sloping land, enclosure by fencing would be the best evidence of exclusive and factual possession: at [31] to [33].

(5) The facts on the whole suggested that the plaintiff as well as its predecessors did not know that the plot was actually a separate piece of land from the property and that they had all along treated the plot as part of the property to the exclusion of all others. The requisite intention for adverse possession was an intention topossess the land and not an intention todispossess an owner of his land and thus this requisite intention could still be established even if the adverse possessor did not realise that he was trespassing on another's land, such as in the present case. Although the property was developed into a condominium with 23 units sometime within the requisite 12-year period, the fact that different people took adverse possession of the plot at different times did not mean that the requisite 12-year period for adverse possession was broken. So long as the proprietors treated the plot as part of their common property (which was the case here), there was no reason why there could not be the requisite intention for adverse possession during the period where the property was a strata development: at [34], [36] and [37].

(6) Since the plaintiff's claim for adverse possession was made out, it was unnecessary to decide who was the original rightful owner of the plot. However, it sufficed to say that neither the interested parties nor Syed Noah had adduced sufficient evidence to prove their interest in the plot. The report prepared by the law firm, Ramdas & Wong, which was commissioned by the plaintiff to conduct an independent review of the title of the plot, suggested that four other individuals were the rightful owners of the plot instead, though none of the personal representatives of their estates came forward in the present proceedings: at [39] and [40].

Balwant Singh v Double L & T Pte Ltd [1996] 2 SLR (R) 7; [1996] 2 SLR 726 (folld)

Fones Christina v Cheong Eng Khoon Roland [2005] 4 SLR (R) 803; [2005] 4 SLR 803 (folld)

Hughes v Cork [1994] EGCS 25 (refd)

Jubilee Electronics Pte Ltd v Tai Wah Garments and Knitting Factory Pte Ltd [1996] 1 SLR (R) 352; [1996] 2 SLR 39 (folld)

Littledale v Liverpool College [1900] 1 Ch 19 (refd)

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

Prudential Assurance Co Ltd v Waterloo Real Estate Inc [1999] 2 EGLR 85 (refd)

R B Wuta-Ofei v Mabel Danquah [1961] 1 WLR 1238 (refd)

Shell Eastern Petroleum (Pte) Ltd v Goh Chor Cheok [1999] 3 SLR (R) 236; [2000] 1 SLR 45 (refd)

Simpson v Fergus (1999) 79 P & CR 398 (refd)

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

TSM Development Pte Ltd v Leonard Stephanie Celinenée Pereira [2005] 4 SLR (R) 721; [2005] 4 SLR 721 (folld)

Land Titles Act 1993 (Act 27 of 1993)s 177 (3) (consd);ss 50,172 (8),172 (9),177 (1)

Land Titles Act (Cap 157, 1994Rev Ed)ss 50, 172 (7),172 (8)

Land Titles Act (Cap 157, 2004Rev Ed)ss 50, 174 (7),174 (8)

Limitation Act (Cap 163,1996Rev Ed)s 9 (consd)

Revised Edition of the Laws Act (Cap 275, 1995Rev Ed)s 5

Kenneth Pereira and Rajaram Muralli Raja (Allen & Gledhill LLP) for the plaintiff

Leslie Netto and Bevin Netto (Netto & Magin LLC) for the interested parties

Syed Noah Aljunied in person.

Tay Yong Kwang J

Introduction

1 The plaintiff, City Developments Limited, commenced this originating summons (“OS 126/2008”), seeking a declaration that it is entitled to and that it be vested with the legal possessory title of a strip of unregistered land known as Lot 1019M of Town Sub Division 28 (“the plot”), which measures some 324m².The plot is situated off Buckley Road in the Newton area. The basis of the plaintiff's claim is that the plaintiff, through its predecessors, have been in adverse possession of the plot for a continuous period of 12 years prior to 1 March 1994 and that the rights and title of the defendant or his personal representatives or any person claiming an interest in the plot have been extinguished by virtue of the Limitation Act (Cap 163, 1996 Rev...