Ho Lam Phoh and Another v Tan Swee Beng

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 25 June 1998
• Neutral Citation: [1998] SGCA 40
• Docket Number: Civil Appeal No 136 of 1997
• Date: 25 June 1998
• Year: 1998
• Published date: 19 September 2003
• Plaintiff Counsel: Andre Maniam and Emily Yeow (Wong Partnership)
• Citation: [1998] SGCA 40
• Defendant Counsel: Muthu Kumaran and Moncy Mathew (WT Woon & Company)
• Court: Court of Appeal (Singapore)
• Subject Matter: Failure to comply with s 50,Adverse possession commenced before conversion,Whether appellant acquired adverse possession to disputed land,ss 50, 172(7), 172(8) Land Titles Act (Cap 157, 1994 Ed),Adverse possession,Applicability of of Land Titles Act,Qualified certificate of title,Conversion of land into registered land,Land,s 42 Land Titles Act (Cap 157),ss 42 & 50 Land Titles Act (Cap 157, 1994 Ed),Whether s 42 applicable to present situation,Whether appellants acquired title to disputed land by adverse possession,Disputed land registered under Land Titles Act

Judgment:

GOH JOON SENG J

(delivering the grounds of judgment of the court): This was an appeal against the decision of Christopher Lau JC (as he then was). The proceedings concerned the siting of the retaining wall and fence (the boundary wall) demarcating the boundary between the plaintiff`s property, being Lot 2812, Mukim 27, known as No 131 Tanah Merah Kechil Road, and the defendants` property being Lot 3867, Mukim 27, known as No 129, Tanah Merah Kechil Road. The learned judge found that the boundary wall had been erected within Lot 2812. He accordingly ordered that it be resited along the boundary between the two lots at the plaintiff`s costs. In making the order the learned judge rejected the defendants` claim of adverse possession to that portion of Lot 2812 on their side of the boundary wall (the disputed land) contiguous with Lot 3867 and forming part of the compound of No 129, Tanah Merah Kechil Road. Accordingly, the learned judge ordered that the caveat lodged by the defendants against Lot 2812 on 5 August 1996 be removed. The plaintiff was also awarded costs of the proceedings. The defendants appealed. We dismissed the appeal. We now give our reasons.

2. Background facts

Both properties are part of a housing estate known as `Bedokville` developed by Malaysia Land Investment Company (Pte) Ltd (the developer) in the late sixties or early seventies.

3.No 131, Tanah Merah Kechil Road was conveyed by the developer to Wong Chen Liong and Soh Siew Choo on 30 December 1972. There were two subsequent changes in ownership before the plaintiff became the owner on 3 October 1983 by way of an indenture of conveyance.

4.On 20 June 1984, the plaintiff`s property was converted to registered land under a qualified certificate of title endorsed with a caution stating `this qualified certificate of title is held subject to any interest which may have affected the land comprised herein at the date of issue hereof`.

5.No 129, Tanah Merah Kechil Road is comprised in a statutory grant dated 24 June 1974. Following the issue of the grant, 129 Tanah Merah Kechil Road was brought under the Land Titles Act (Cap 157) on 26 July 1974, with the developer as the registered proprietor.

6.On 5 June 1975, No 129, Tanah Merah Kechil Road was transferred to one Kong Chew Hong by the developer. On 28 September 1977, Kong Chew Hong transferred it to Oei Pte Ltd. Oei Pte Ltd transferred it to the defendants on 10 September 1979.

7.It would appear from the evidence of one Chow Ming, the owner of a neighbouring property, No 6 Jalan Limau Purut, that the boundary wall separating the two properties in question was erected at the latest by 1971. His affidavit stated:

2 The neighbouring property was built in or around 1969. After construction, it was leased out until 1970. I moved into the neighbouring property in or around 1971 and stayed there until 1 November 1993 when it was leased out again.

3 The neighbouring property shares a common border with the properties known as Nos 129 and 131 Tanah Merah Kechil Road which are part of the same development known as `Bedokville` developed by Malaysia Land Investment Company. The retaining wall (the subject wall in this present dispute) surrounding 129 Tanah Merah Kechil Road was, to the best of my knowledge and belief, present from the time of the original development, or at the very latest, when I moved into the neighbouring property in 1971. As far as I know, there have been no alterations or reconstruction to the said retaining wall. Given that any such alterations and/or reconstruction would have been fairly major, I would have no doubt noticed if there had been any such works carried out at any time during the period 1971 to 1993.

8.Nothing however turns on this as the developer was the owner of both 131 and 129, Tanah Merah Kechil Road until 30 December 1972. Further the defendants grounded their claim on the basis that their adverse possession of the disputed land began in 1974.

9.On discovering the encroachment by the boundary wall, the plaintiff requested the defendants to set back the boundary wall. The request was rejected. On 5 August 1996, the defendants lodged a caveat claiming possessory title of the disputed land.

10. The proceedings

On 19 September 1996, the plaintiff commenced proceedings in OS 953/96. In rejecting the defendants` claim of adverse possession of the disputed land, the learned judge held that s 50 of the Land Titles Act (Cap 157, 1994 Ed) abolished all claims to title by adverse possession subject only to the exceptions in s 172(7) and (8) which the defendants had not availed themselves of. This was what the learned judge stated:

the [defendants] contended that because the title that had been issued in 1984 on the plaintiff`s property was qualified on its conversion from common law land to registered land and was made subject to interests subsisting at the date of its conversion, then persons in possession of an inchoate interest (which it was submitted the defendants were as their adverse possession had already commenced before the plaintiff`s property`s conversion) would have had that inchoate interest crystallised and accordingly would have acquired title to the separated portion by the operation of the Limitation Act before 1 March 1994. In short, the defendants` argument was that by 1 March 1994, which was when the present Land Titles Act (Cap 157, 1994 Ed) (the Act) came into force, the defendants had already acquired title by adverse possession to the separated portion as they had had about ten years of adverse possession before 1984 and two years thereafter and the Act did not extinguish such title. They referred to the unreported case of Tan Siok Gek v Ng Kim Neo in OS 293/96, a decision of Choo Han Teck JC this year and Wong Kok Chin v Mah Ten Kui Joseph [1992] 2 SLR 161 , a decision of the Court of Appeal in support.

16 Under s 50 of the Act, save for two exceptions - under s 172(7) and (8) - all claims of title by adverse possession were abrogated.

17 Under s 172(7) of the Act, if at any time before 1 March 1994, a person was in adverse possession of any registered land and he had lodged an application for a possessory title under the provisions of the repealed Act which application had not been withdrawn and was on 1 March 1994 pending in the Land Titles Registry, that person`s claim would be dealt with under the provisions of the repealed Act [referring to the Land Titles Act (Cap 157].

18 Under s 172(8) of the Act, again if at any time before 1 March 1994, a person was in adverse possession of any registered land and he was entitled to lodge an application for a possessory title under the provisions of the repealed Act, then provided that person had within six months of 1 March 1994 made either an application to court for the necessary vesting of title order or lodged an application for possessory title, his claim would also be dealt with under the provisions of the repealed Act.

19 The defendants adopted neither of the courses set out in s 172(7) and (8). In reality they could not since on 20 June 1984 when the plaintiff`s property was registered under the provisions of the repealed Act, the defendants had not completed the necessary twelve years of adverse possession.

It was against that part of the judgment that this appeal was mainly directed. We shall refer to the Land Titles Act (Cap 157) as `the repealed LTA`, the Land Titles Act No 27 of 1993 as `the 1993 LTA`, and the Land Titles Act (Cap 157, 1994 Ed) as `the new LTA`.

11.The learned judge`s rejection of the defendants` claim is in line with Balwant Singh v Double L & T Pte Ltd [1996] 2 SLR 726 , a decision of this court. In that case the appellant had been in adverse possession of the disputed plot since September 1973. This disputed plot formed part of Lot 235-25 of Mukim 27, Tanah Merah Kechil, which was itself in adverse possession by one Thulasi since 1941. On 17 December 1993 Thulasi obtained judgment against the estate of the documentary owner declaring him the owner in fee simple by adverse possession. On the same day Thulasi conveyed Lot 235-25, to the respondent. On 1 March 1994 the new Act...