Harun bin Syed Hussain Aljunied and another v Abdul Samad bin O K Mohamed Haniffa and others

JurisdictionSingapore
JudgeTan Siong Thye J
Judgment Date06 October 2017
Neutral Citation[2017] SGHC 248
CourtHigh Court (Singapore)
Docket NumberSuit No 268 of 2017 (Registrar’s Appeal No 176 of 2017)
Published date26 September 2018
Year2017
Hearing Date22 August 2017
Plaintiff CounselKirpal Singh s/o Hakam Singh and Oh Hsiu Leem Osborne (Kirpal & Associates)
Defendant CounselTan Hsuan Boon (Wee Swee Teow LLP)
Subject MatterCivil procedure,Pleadings,Striking out,Limitation of actions,When time begins to run,Equity,Defences,Laches,Land,Registration of title,Land Titles Act
Citation[2017] SGHC 248
Tan Siong Thye J: Introduction

The subject matter of this appeal is the title to a property known as No 120 Dunlop Street (“the Property”). It is currently registered as an estate in fee simple under the Certificate of Title Volume 375 Folio 136. The first defendant has been the registered proprietor of the Property since 2001.1 In Summons No 1755 of 2017 (“SUM 1755”), the defendants applied to strike out the plaintiffs’ statement of claim dated 27 March 2017 (as amended on 8 June 2017) under O 18 r 19 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).2 The assistant registrar (“AR”) granted the application and struck out the plaintiffs’ claim. The plaintiffs appealed against the AR’s decision.

After hearing the parties’ submissions, I dismissed the appeal. The plaintiffs have appealed against my decision. I now give my reasons.

Background

The parties agreed that in 1877, the Property was owned by one Kavena Koonjan Chitty (“Kavena”).3 In 1879, Kavena conveyed the Property to one Jayna Ahna Navena Shedumbrum Chitty (“Jayna”).4 Jayna conveyed the Property to one Syed Allowei bin Ally Aljunied (“Syed Allowei”) in 1882, who in turn conveyed it to one Syed Ahmat bin Abdulrahman bin Ahmat Aljunied (“Syed Ahmat”) in 1892.5 Syed Ahmat passed away in 1894 and a trust was created according to his will (“the Aljunied Trust”). The trustee of the Aljunied Trust was initially one Syed Jafaralsadeg bin Abdul Kadir Alhadad (“Syed Jafar”).6 He later relinquished his office to the first plaintiff in 1998. The second plaintiff was appointed trustee in 2009. They brought this claim as trustees of the Aljunied Trust.7

In 1895, Kavena conveyed the “Estate in Fee Simple – free from encumbrances” of the Property to several trustees of the Hindoo Temple Tank Road (“the Hindoo Temple Trustees”).8 These trustees were replaced by new ones in 1975; the new trustees were granted powers to sell and convey the Property to the second defendant for $50,000 in 1977 by court order.9 Later that year, in December 1977, the Hindoo Temple Trustees conveyed the Property to the second defendant (“the 1977 conveyance”).10 The plaintiffs alleged that the 1977 conveyance was tainted by fraud since both parties to the conveyance were advised by common solicitors, who did not perform checks into the title history of the Property. If they had, then they would have discovered Syed Ahmat’s interest. Accordingly, the plaintiffs submitted that the 1977 conveyance was tainted by fraud as the parties fraudulently transferred the Property even though they knew they did not have title to it.11 The plaintiffs also alleged that Kavena had fraudulently transferred the Property to the Hindoo Temple Trustees in 1895 as he had already conveyed the Property to Jayna in 1879.12

In 1991, the second defendant brought the Property under the Land Titles Act (Cap 157, 2004 Rev Ed) (“LTA”). The Property was registered in the second defendant’s name.13 In 1994, Syed Jafar, as trustee of the Aljunied Trust, lodged a caveat with the Registrar of Titles and Deeds (“the Registrar”) alleging that the second defendant’s title was a “wrong lodgement”.14 The Registrar conducted investigations and replied, disagreeing with Syed Jafar.15 After some back-and-forth, Syed Jafar ceased communications with the Registrar until 1997, when he brought up the same issue again.16 Again, the parties stopped corresponding after some time and no resolution was reached.

In 2000, the second defendant transferred the Property to his son, the first defendant, for a sum of $930,000 (“the 2000 conveyance”). When the transfer occurred, the Registrar sent a letter to Syed Jafar dated 25 September 2001 (“the Registrar’s 2001 letter”), stating that the Registrar’s caveat would be removed within 14 days if nothing was done to protect the caveated interest.17 Syed Jafar did not reply and so the caveat was withdrawn. The transfer instrument between the second and first defendants was then registered in 2001.18 The plaintiffs again alleged that the 2000 conveyance was tainted by fraud for the same reasons as the 1977 conveyance.19

On 27 March 2017, the plaintiffs, in their capacity as trustees of the Aljunied Trust, issued a writ of summons against the defendants, seeking a rectification of the land register in the Aljunied Trust’s favour.20 The defendants in turn filed SUM 1755 seeking to strike out the plaintiffs’ claim. The AR granted the striking-out application and the plaintiffs appealed.

The AR’s decision

The AR struck out the plaintiffs’ claim. She first struck out the claim against the third defendant because it was a company that had never any interest in the Property. The plaintiffs’ counsel also accepted during the hearing before the AR that the plaintiffs had no clear cause of action against the third defendant. The AR therefore considered the action against the third defendant to be unsustainable and struck it out.21

The AR also struck out the plaintiffs’ claim against the first and second defendants on three grounds.

First, the claim was time-barred under the Limitation Act (Cap 163, 1996 Rev Ed). The AR considered that s 29 of the Limitation Act applied. Section 29(1) provides that the limitation period for an action based on the defendant’s fraud would not start to run until “the plaintiff has discovered the fraud … or could with reasonable diligence have discovered it”. Nonetheless, the AR found that the plaintiffs’ claim was time-barred because the plaintiffs either discovered or could have discovered the alleged fraud with reasonable diligence by 1994 at the latest.

This was because of the correspondence between Syed Jafar on the one hand, and the Registrar and the second defendant on the other. The correspondence showed that Syed Jafar had inquired with the Registrar about a “wrong lodgement” of a certificate of title in favour of the second defendant. The Registrar investigated and stated that the Property’s title did not vest in Syed Ahmat. The lawyers of the Aljunied Trust wrote to the second defendant informing him that proceedings would be commenced “immediately” to expunge the certificate of title and to reclaim possession of the Property. Although the plaintiffs alleged that they did not know about the correspondence, the AR considered this irrelevant as the plaintiffs commenced the proceedings in their capacity as trustees. Hence, Syed Jafar’s actions and knowledge were also imputed to the plaintiffs, the present trustees and they could be taken to have discovered the relevant facts in 1994. The time limitation under ss 9–10 of the Limitation Act for actions in relation to land interests is 12 years. The plaintiffs therefore had to commence the action by 2006, but they did not. Accordingly, the claim was time-barred.22

Second, the AR also considered the claim barred by the defence of laches. The AR considered evidence that a caveat lodged by the former trustees of the Property against the Property in 1994 had been allowed to lapse. Further, at the time of the 2000 conveyance, the Registrar’s 2001 letter gave Syed Jafar notice that unless the Registrar heard from him within 14 days, the caveat lodged by the Registrar would be withdrawn, and the transfer of the Property from the second defendant to the first defendant would be registered (see [6] above). Syed Jafar failed to respond. The Registrar’s caveat was hence withdrawn and the first defendant was registered as the Property’s owner. The plaintiffs did not explain their inaction and only referred to an affidavit by Syed Jafar dated 29 May 2017 where he stated that he did not receive the Registrar’s 2001 letter. The AR was not convinced and found that the defence of laches applied because of the immense time delay.23

Third, even if the claim was not time-barred and the defence of laches did not apply, the AR held that the plaintiffs could not go behind the land register to challenge the first defendant’s registered title. Since the Property was regulated by the LTA, any challenges by the plaintiffs would need to fall within one of the limbs of s 46(2) of the LTA. The plaintiffs relied on s 46(2)(a), which required fraud “to which that proprietor or his agent was a party or in which he or his agent colluded”. However, the AR found that nothing in the plaintiffs’ evidence satisfactorily explained how the first defendant or his agent was party to or colluded in any kind of fraud. Instead, any fraudulent intention was on Kavena’s part, since he was the one who transferred the Property a second time even after the first transfer to Jayna was successful. Since the plaintiffs produced no evidence to link the alleged fraud to the first defendant, s 46(2)(a) did not apply.24

Accordingly, the AR struck out the plaintiffs’ claim.

Parties’ submissions Plaintiffs’ submissions

The plaintiffs’ overarching submissions were that there were numerous triable legal and factual issues, such that their claim should proceed to trial.

In relation to the Limitation Act issue, the plaintiffs relied on s 29 of the Limitation Act for the proposition that the time for fraud could only start to run when they discovered or could reasonably have discovered the fraud. The plaintiffs submitted that they only knew of the relevant facts after October 2012, when the Singapore Land Authority (“SLA”) commenced an investigation regarding certain of their properties which raised the question of whether the title in the Property belonged to the Aljunied Trust.25 The plaintiffs submitted that they had taken reasonable diligence but there were no special circumstances to prompt them to inquire further prior to the SLA’s investigations in 2012.26

In response to the AR’s reliance on the caveat lodged by Syed Jafar with the Registrar in 1994 and the related correspondence, the plaintiffs submitted that they did not know about the caveat because they did not have the relevant documents. The documents...

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