Dr Lo Sook Ling Adela v Au Mei Yin Christina and Another

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 27 February 2002
• Neutral Citation: [2002] SGCA 11
• Docket Number: Civil Appeal No 600133 of
• Date: 27 February 2002
• Year: 2002
• Published date: 19 September 2003
• Plaintiff Counsel: Sundaresh Menon and Choong Kean Hin Allen (Rajah & Tann)
• Citation: [2002] SGCA 11
• Defendant Counsel: N Sreenivasan (Straits Law Practice LLC)
• Court: Court of Appeal (Singapore)
• Subject Matter: Admissibility of evidence,Adverse possession,Whether appellant has acquired ownership of disputed strip of land by adverse possession,Whether failure to put its case precludes party from subsequently raising it,Whether appellate court can examine evidence against inherent probabilities or undisputed facts,Encroachment of fence onto respondents' property,Respondents' reliance on survey plan to show position of fence,Future interests,s 85 Evidence Act (Cap 97, 1997 Ed),Civil Procedure,Findings of fact,Land,Appeals,Evaluation of evidence,Evidence,Whether presumption rebutted,Presumption of accuracy of survey plan,Failure to put one's case to appellant

Judgment

GROUNDS OF DECISION

1. This was an appeal against the decision of the High Court dismissing the appellant’s defence that she was entitled to a strip of land which adjoins the appellant’s property, located at No. 26 Leedon Road, and the respondent’s neighbouring land at No. 24 Leedon Road, by way of adverse possession At the close of the hearing, we allowed the appeal and confirmed the appellant’s claim that she had acquired ownership of the disputed strip by adverse possession. We now give our reasons. For convenience we shall hereinafter refer to the two properties known as 26 Leedon Road and 24 Leedon Road as "No. 26" and "No. 24" respectively

Background

2. On No. 26 is a house with garden purchased by one Mr CF Sawyer in 1962. In 1970, the appellant married Mr Sawyer and moved in to live with him. She has been living there ever since. Her two children, a boy aged 6 and a girl aged 8, also moved in to live there. In 1974, Mr Sawyer transferred ownership of the property to the appellant. Mr Sawyer passed away in January 1993.

3. No. 26 and No. 24 share a common boundary which is about 200 feet long. In July 1999, the respondents, who are husband and wife, purchased No. 24 from the previous owner (one Mr Tan) to build their new home. Towards that end, topographic surveys were carried out and it was discovered that the fence separating the two properties did not follow the boundary line as it curved in the middle section and encroached onto the side of No. 24, and at the broadest point the encroachment was up to some 10 feet. The fence deviated from the boundary line about 2/3 of the way. The encroached portion has an area of approximately 800 sq feet.

4. It was not in dispute that the encroachment was not done deliberately by the appellant. According to her, the fence had been in that position since she moved into the property in 1970 and that the disputed strip had always been a part of the compound of No. 26. She was told by her husband that the fence was erected by Reckitt & Colman Singapore Pte Ltd, the then owner of No. 24. In the eighties Reckitt & Colman erected a wooden fence along a part of the mesh wire fence to enhance privacy.

5. In 1994, a significant change in the law took place in Singapore. By virtue of what is now s 50 of the Land Titles Act (Cap 147) no one may, after 1 March 1994, acquire any registered land by adverse possession. But the new law does not affect a person who has been in adverse possession of registered land for 12 years or more before 1 March 1994. In other words, the new law does not affect title already acquired by adverse possession: Balwant Singh v Double L&T Pte Ltd [1996] 2 SLR 726.

6. As far as the respondents were concerned, they had no idea as to the history of the fence. The previous owner, one Mr Tan, from whom the respondents bought the property, had only owned it for some three years. The owner previous to Mr Tan was Reckitt & Colman. Nevertheless the respondents commenced the present action to recover the disputed strip from the appellant on the ground that the later had not been in adverse possession of it for the required 12 years as at 1 March 1994. They relied on a plan known as Certified Plan No. CP 16587 (CP 16587) filed in the Chief Surveyor's Department. CP 16587 was based on a survey of No. 24 carried out in November/December 1983, at the request of the then owner to refix boundary marks which were out of position and lost, and the results of which survey were recorded in the Survey Department Field Book No. 22696. The survey was carried out, and the recording made, by Field Assistant Mr Lee Siah Hing (Mr Lee). The plan showed that in late 1983 the fence was running correctly along the full length of the boundary line. No deviation was noted. However, the appellant said that the plan did not correctly depict the position of the fence on site.

Evidence for the appellant

7. It is clear that in law the burden of proving adverse possession rests with the claimant: see ss 103 and 104 of the Evidence Act. According to the appellant, the fence had been in that position since 1969 when she visited Mr Sawyer at No. 26 before they were married. No change had been made to the fence. Shortly after she moved into No. 26, she and her late husband planted and maintained a hedge alongside a part of the fence and a portion of the hedge was on the disputed strip. The hedge was only 10-15 feet long. Later it was removed but the fence was left intact. She stated categorically that in her thirty years of residence there, the fence had never been moved.

8. The appellant also said that she and her husband planted trees in the garden. Among them were 14 clusters of MacArthur palms, a belimbing tree and a huge wild cherry tree (also called Salam tree) which were planted on the disputed strip. The Salam tree was cut down ten years ago and what remained was just a stump. Further, to improve the landscape of the garden, they obtained and placed several rocks/boulders on the disputed strip. A photograph taken in the seventies was produced by the appellant showing the rocks and beside them was a stone lantern. A recent photograph taken of the same location showed that the lantern was no longer there. The appellant could not recall when it was removed.

9. The appellant’s daughter very much corroborated what the mother told the court. She reiterated that the position of the fence had never been moved. She lived there from 1970 to 1989 when she moved out on her marriage. Although from 1981 to 1986 she was in England for studies she had returned home every year during her vacation. The disputed strip had always been a part of the garden of her house. She remembered the rocks which were placed there. However, in cross-examination she admitted that if the fence had moved a foot or two while she was away, she would not necessarily have noticed the change upon her return.

10. The appellant’s son also lived at No. 26 from 1970 to 1987 before he moved to stay at a university hostel. He was there during the relevant period. He also affirmed that the position of the fence had not been altered in all those years and he gave some reasons why he remembered the fence to be there. But for the purposes of this appeal we need not go into those reasons.

11. The appellant also called a retired professor of Botany from the NUS, Prof Rao Nagaraja Adisheshappa (Prof Rao), to shed light on the age of various trees/plants grown on the disputed strip. Of the 14 clusters of Macarthur palms grown there alongside a part of the wire fence, except for one cluster, all the others showed varying degrees of damage or of being disturbed. The one undamaged cluster had a full set of young and mature stems and many of the stems were more than three times the height of the wooden fence behind them, which was about seven feet. In his opinion, such a palm would normally grow at approximately 10 to 12 inches per year and this meant that the palm was over 20 years old.

12. The appellant’s last witness was a registered surveyor, Mr Tang Tuck Kim, who had served a year in the Survey Department in the early seventies, followed by five years as a surveyor in the Registry of Land Titles & Deeds. The gist of his evidence was that the purpose of a plan such as CP 16587 was to accurately depict the boundary lines of a property and to verify and refix the boundary marks. It was not intended to accurately depict non-permanent features such as a fence. His examination of the Field Book No. 22696 confirmed that. Furthermore, from page 6 of the Field Book where there was a plan (plan page) one could see that the surveyor only recorded the measurements of the two extreme ends of the fence and nothing in between. In his view, the surveyor merely made an assumption that the fence line was straight without actually taking measurements to check it out. However, Mr Tang had to retract his assertion that the surveyor who prepared CP16587 was not concerned with non-permanent features such as a fence after he was shown the provisions of r 47(a) of the Land Surveyors’ Rules 1976. But as will be seen later, the views of Mr Tang were consistent with a reply from the Survey Department dated 9 May 2001 (see 29 and 30 below).

Respondent’s evidence

13. The respondents called a land survey technician, Mr Wong Tuck Kheong, to give an account of what he found on the land when his company, Acemap Survey Services Pte Ltd, was engaged to conduct a topographic survey of No. 24. He told the court that in August 1999, he went down to the site following an earlier survey carried out by another employee, one Haris Bin Ripin, which showed a crooked mesh wire fence. He climbed over to the side of No. 26. What he found was set out in a statutory declaration affirmed in January 2001 as follows:-

"When I climbed over the mesh wire fence somewhere near to the swimming pool, I noticed that there was another damaged mesh wire fence (metallic in colour and rusty) amongst the dense vegetation that was at the area of the crooked boundary line was (sic). However, the metallic mesh wire fence was standing in part and broken in part. At the broken parts there were footings for a fence still on the ground. I surveyed this fence and I was able to ascertain that the boundary line was where the damaged fence was."

14. However, on the day he appeared in court to testify, he made a correction. He said there was,

"no mesh wire fence standing on the footings. The footings were concrete debris found on the site. There were remnants of the mesh wire fence, one to two centimetres, stuck on what appeared to me as footings for a fence. The concrete on which the traces of mesh wire fence that were found were (sic) also sparsely spread out."

He also said in cross-examination that he saw concrete debris with traces of wire fencing at four points. But in view of the lapse of time, he could not indicate where the four points were.

15. Another...