Hoalim v Collector of Land Revenue

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 18 March 1975
• Neutral Citation: [1975] SGCA 3
• Docket Number: Appeal No AB 44 of 1971
• Date: 18 March 1975
• Published date: 19 September 2003
• Year: 1975
• Plaintiff Counsel: YR Jumabhoy and Kirpal Singh (Mallal & Namazie)
• Citation: [1975] SGCA 3
• Defendant Counsel: G Starforth Hill (Rodyk & Davidson)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether subsequent owner bound by provision in unregistered Crown grant,Compensation payable,3(5) Conveyancing and Law of Property Act (Cap 268, 1970 Rev Ed),Interest in land,Registration of deeds,Registration of Deeds Act (Cap 281, 1970 Rev Ed),Whether provision in Crown grant subject to the rule against perpetuities,Whether subsequent owner had notice of provision for surrender,s 4 Registration of Deeds Act (Cap 281, 1970 Rev Ed),Original Crown grant was not registered,Title,Whether government bound,s 54? Interpretation Act (Cap 1, 1970 Rev Ed),Construction of statute,Land,Compulsory acquisitions,Provision in original grant provided for compensation payable upon surrender for public purposes,Original Crown grant,Construction of provision in grant,Whether provision was a condition or covenant,Successor in title to the Secretary of State under the original grant,Necessary implication,Statutory Interpretation

Cur Adv Vult

This is a case stated by the Appeals Board constituted under the provisions of s 19(1) of the Land Acquisition Act (Cap 272) on questions of law for the opinion of the court pursuant to the provisions of s 30 of the Act. The case stated, as required by that section, sets out the facts which are not in dispute and the questions of law on which the opinion of the court is sought. No decision has yet been made by the board.

The case stated arises out of an appeal by the appellant, Mr Philip Hoalim, against an award of the Collector of Land Revenue of the sum of $67,500 in respect of Lot 285 of Mukim XXXIII, an island consisting of an area of 220 acres and generally known as Pulau Tekong Kechil. This island is part of the Republic of Singapore and is situated close to the south eastern coast of the main island of Singapore.

There are two main issues in that appeal, namely:

(i) is the market value of the property limited by the provisions contained in the original Crown grant of the property in 1860 and, if so, to what extent; and

(ii) if not, what is the true market value of the property at the relevant date.

The opinion of the court is sought only in connection with the first of these questions, the second having been the subject of evidence heard by the Board. On the first question the Collector`s case is that the value of the acquired land is limited by the terms of the original Crown grant. The appellant`s case is to the contrary and that the land should be valued at its ordinary open market value.

All the relevant documents relating to the property are contained in the annexures to the case stated. The material dates are as follows:

26 April 1860 - Crown grant to Angus (pp 20-22)

15 March

1878

-

Angus to Sultan of Johore (pp 23 and 24)

17 October

1951

-

Administrator of Sultan of Johore to Hoalim and Liew

Kong Kee (pp 25-27)

16 June

1952

-

Liew Kong Kee to Ng Cheng Koon (share)

(pp 28 and 29)

12 July

1954

-

Ng Cheng Koon to Hoalim (share) (pp 31 and 32)

At the relevant date, it is not in dispute that the appellant was the sole owner of the entire property. It is also not in dispute that the original Crown grant is not registered at the Registry of Deeds. It is also now not in dispute that the rights of the Crown under the original grant are now vested in the government of Singapore and can be exercised by the government if the provision in the grant hereinafter set out is binding on the appellant.

The original grant contains a provision as follows (p 1):

Subject nevertheless to the conditions 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 Secretary of State for India in Council or his Successors in Office the said Land and premises should it at any time be required for public purposes, on a requisition made to him to that effect in writing and upon the payment to him the said Gilbert Angus His Heirs Executors Administrators and Assigns by the said Secretary of State for India in Council or his Successors in office of all sum or sums of money that the said Gilbert Angus his Heirs Administrators Executors or Assigns may or shall have incurred expended (sic) upon the said land.

The issue before the Board on which the opinion of the court, by way of a case stated, is sought is, what is the effect of this provision and, if it has any effect, does it bind the appellant or purchasers from him, and if so with what result.

The Case Stated sets out the questions of law for the opinion of the court in the following terms:

(i) Is the said provision a covenant creating an interest in land, or is it a condition or is it both, and is the interest, if any, created thereby legal or equitable?

(ii) Is the interest, if any, created by the said provision void by reason of the operation of the rule against perpetuities and in particular:

(a) does the rule apply at all (apart from statutory enactment) to legal rights of re-entry for condition broken;

(b) does the rule apply to equitable rights to enforce a covenant for a reconveyance against the land owner who is successor in title of the covenantor;

(c) if either (a) or (b) is answered in the affirmative does the rule apply in Singapore to provisions contained in grants by the Crown or its successor the state?

(iii) if the said provision constitutes a valid common law condition is the question of notice, actual or constructive material?

(iv) On whom is the burden of proof of the existence or absence of actual notice of the said provision?

(v) On the assumption that the appellant had no actual notice of the said provision did he nevertheless have constructive notice thereof? And is the appellant bound in view of the non-registration of the original grant?

(vi) In the event that the said provision is binding upon the appellant in whom are the rights of the Secretary under the original grant now vested and can they be exercised?

(vii) In the event that the said rights can be exercised how are the words in the said provision - `all sum or sums of money that the said Gilbert Angus His Heirs Administrators Executors or Assigns may or shall have incurred expended upon the said land (sic)` to be construed. Question (i)

On behalf of the appellant it is contended that the provision is not a condition but is merely a covenant which, but for the rule against perpetuities, would have created only an equitable interest in land. The respondent, on the other hand, contends that the provision is not merely a covenant but also a condition and that the interest created thereby constitutes both a common law condition, ie a legal interest in land, and an equitable right under the covenant, ie an equitable interest in land. It is, however, conceded by the respondent that the rule against perpetuities applies to equitable rights to enforce a covenant for re-conveyance against a land owner who is successor in title of the covenantor.

The said provision begins with the phrase `subject nevertheless to the conditions hereinafter mentioned ...`. It is not in dispute that, on the authorities, where the words used are `Provided always` or `Upon condition that` then the provision is a common law condition and not a covenant or mere contractual term. Mr Jumabhoy, on behalf of the appellant, submits that as the provision does not contain words such as `Provided always` or `Upon condition that` the provision looked at as a whole should be construed to be a contractual term and not a common law condition.

Mr Graham Hill, for the respondent, contends that the provision is not merely a covenant but also a condition so that a breach of the covenant to surrender would entitle the Crown to re-enter and resume ownership of the property. He contends that any other interpretation would give no force to the perfectly technical phrase `subject nevertheless to the conditions hereinafter mentioned` and that there is authority (see Sheppard`s Touchstone , 122) that one and the same clause `may be also a condition and a covenant as if the words run thus: provided always, and the foeffee etc doth covenant etc that neither he nor his heirs shall do such an act, this is both a condition and a covenant`. We accept the respondent`s contention and in our opinion the words `subject nevertheless to the conditions hereinafter mentioned` in the said provision import a condition and the whole provision amounts both to a condition and a covenant creating an interest in land, both legal and equitable.

Question (ii)(a)

Mr Jumabhoy contends that the rule against perpetuities applies to legal rights of re-entry for condition broken and relies on the English authorities which are referred to in Morris and Leach on Perpetuities , 2nd Ed at pp 210-218. Before referring to these authorities it would be useful to state what the rule is and we adopt Gray`s definition at s 201 of the 2nd edition of his book Rule Against Perpetuities which runs as follows: `No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.` It is a rule of the common law as decided by English judges and founded on public policy to protect the public against private wishes. It originated to enable free alienability of land and eventually developed into its present inflexible form controlling not only interests in land but also trusts of personalty.

In the case of Re Trustees of Hollis` Hospital and Hague`s Contract [1889] 2 Ch 540 Byrne J was considering whether a condition in a deed of release dated 18 May 1726 which contained a proviso that if at any time thereafter the premises which had been conveyed by Hollis to trustees upon trust for the hospital of any part thereof should be employed or converted to or for any other uses, intents or purposes than those thereinbefore mentioned, then and from thenceforth all and every the premises thereinbefore conveyed should revert to the right heirs of Hollis party thereto.

Byrne J held that the condition was in terms and...