Collector of Land Revenue v Hoalim

• Jurisdiction: Singapore
• Judge: Lord Cross of Chelsea
• Judgment Date: 21 December 1976
• Neutral Citation: [1976] SGPC 5
• Docket Number: Privy Council Appeal No 33 of 1975
• Date: 21 December 1976
• Year: 1976
• Published date: 19 September 2003
• Plaintiff Counsel: G Starforth Hill (Coward Chance)
• Citation: [1976] SGPC 5
• Defendant Counsel: YR Jumabhoy (C Butcher & Simon Burns)
• Court: Privy Council
• Subject Matter: Whether provision for reacquisition of land in original state grant enforceable at date of publication of notice of acquisition,Whether purchaser having constructive notice of covenant when he bought,Whether provision for reacquisition of land in original state grant amounting not only to covenant but also to condition of grant,Registration of Deeds Ordinance 1886,Land,Registration of title,Whether Registration of Deeds Ordinance 1886 applicable to original state grants of land,Compulsory acquisitions,Compensation payable

Cur Adv Vult

The respondent and cross-appellant Hoalim owned an island off the coast of Singapore. Under the relevant legislation the appellant Collector gave notice of compulsory acquisition for public purposes. Compensation therefore falls to be assessed on the basis of the market value of the subject land at the time of publication of the notice of compulsory acquisition. The original Crown or state grant of the subject land (the island) to one Angus in 1860 contained a provision enabling the State, if it should be required for public purposes, to reacquire the subject land, paying therefor only the latest purchase price plus any money that had since been expended on the land by the owner. (This was the construction favoured by the Court of Appeal - Record p 51 - and it has not been challenged before their Lordships). This, it may be assumed, would be less than the market value of the land without such a provision for its reacquisition. The Collector did not seek to enforce that provision: as indicated he set in motion ordinary processes of compulsory acquisition for public purposes. But in ascertaining what a notional purchaser in the market would pay for the subject land it is relevant to consider whether the 1860 reacquisition provision was still enforceable on the date of publication of the notice of compulsory acquisition.

The relevant tribunal, before deciding upon the figure of compensation, stated a case for consideration by the Court of Appeal setting out a number of questions of law upon which guidance was sought. Of these questions three remain outstanding for consideration and determination by their Lordships.

The first question is whether the Registration of Deeds Ordinance of 1886, which required registration of conveyances of land in default of which the document was (in broad terms) not to be recognized by law, applied at all to original state grants of land as distinct from subsequent assurances by subjects. The Court of Appeal held that it did so apply so as to require registration of such state grants: and that the defects resulting from non-registration operated against the Crown or State seeking to enforce some provision in the grant in favour of the State such as the provision for reacquisition at a limited price already mentioned. That view of the law being adverse to the Collector he appeals against it. The other two remaining questions arise if the Court of Appeal was wrong on the first question and are the subject of Hoalim`s cross-appeal.

The second question is whether the Court of Appeal was right in holding that the provision for reacquisition in the 1860 grant amounted not only to a covenant by Angus but also to a condition of the grant. It is common ground that if the Court of Appeal was right on the second question the third question does not arise, because a purchaser for value without notice actual or constructive cannot on that ground take free from the condition. The third question is whether, if the provision for reacquisition is of the nature of a covenant only conferring upon the State an equitable interest in the subject land, Hoalim had in the circumstances constructive notice thereof when he bought in 1951. The Court of Appeal held that he had constructive notice. No question whether he had actual notice fell to be determined by the Court of Appeal: nor is it before the Board.

It is convenient to add at this point that no question of remoteness or perpetuity is raised in this cross-appeal, and their Lordships say nothing on that subject.

The grant to Angus dated 26 April 1860 was by the Secretary of State for India on behalf of Her Majesty. It is not disputed that the State of the Republic of Singapore is the successor of the Crown for present purposes. The consideration paid by Angus was Rs1,320. The land was granted in conveyancing terms appropriate to create a fee simple in Angus. The land was described as

All that Island called and known by the name of Pulo Tikong Kitchil situated between Pulo Obin and Pulo Tikong Besar whereof the lines of boundary and their bearings (are) laid down in the plan endorsed hereon, certified under the hand of the Surveyor General estimated to contain an Area of Two hundred and twenty acres together with the appurtenances.

It is to be observed that, since the land granted is an island identified by name and by its position in relation to two other named islands, no further identification by plan could possibly be required: and it is not surprising to find that the plan is no more than an outline with what appear to be measurements between points along that outline, and without any bearings at all, which would be appropriate only to identification of a plot or area on the mainland. In effect a common form was adopted though not suited to the grant of an entire island. There follows the habendum, and after a semi-colon the words which their Lordships have referred to as the provision for reacquisition by the State, as follows:

Subject nevertheless to the conditions (sic) hereinafter mentioned that is to say the said Gilbert Angus for himself his Heirs Executors Administrators and Assigns Doth hereby covenant and agree to surrender and make over unto the said ... [State] ... the said Land and premises should it at any time be required for public purposes, upon a requisition made to him to that effect in writing and upon the payment to him ... his Heirs ... [etc] by the said ... [State] ... of all sum or sums of money that the said ... his Heirs ... [etc] ... may or shall have incurred expended (sic) upon the said Land.

Upon this language turns the second question whether there is here not only a covenant but also a condition of the...