Jubilee Electronics Pte Ltd and Others v Tai Wah Garments & Knitting Factory Pte Ltd

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 05 March 1996
• Neutral Citation: [1996] SGCA 8
• Docket Number: Civil Appeals Nos 146 of 1994 and 65 of 1995
• Date: 05 March 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Morris John, Philip Lam and Anil Sachdev (Drew & Napier)
• Citation: [1996] SGCA 8
• Defendant Counsel: Harry Elias and Yap Teong Liang (Harry Elias & Pnrs)
• Court: Court of Appeal (Singapore)
• Subject Matter: Landlord and Tenant,Whether determined by death of tenant,Aggregation of separate periods of possession,Periodic tenancies,Assignment of leases,Duration of tenancy,Adverse possession,s 13(1) & (2) Limitation Act (Cap 163),Effect,Whether allowed,Original tenant leaving premises after assigning tenancy to third party,Land,Whether shown,Assignment made without consent of landlord,Assignment without consent,Animus possidendi,Whether possession by others under arrangement with 'assignee' deemed to be adverse possession

Judgment:

CHAO HICK TIN J

Cur Adv Vult

This is an appeal against a decision of the High Court which reversed a decision of a district court declaring that the plaintiffs` (owners`) claim for the recovery of the possession of the property at 406 North Bridge Road had been barred by virtue of adverse possession on the part of the second and fourth defendants.

In this judgment, for consistency, the owners shall be referred to as the plaintiffs and the various occupiers (second to fourth defendants) as the defendants.

The first defendant, Tan Pui Liang, was the tenant of the property from 1950 until 1969. It was a monthly tenancy. There was no formal tenancy agreement. During that period, Lim Meng Joon (second defendant), the sole proprietor of Daguerre Studio, was the subtenant of the first defendant occupying the first floor of that property. While Lim Meng Joon had since the commencement of this action passed away, his partner Chong Jeng Chong, whom he had taken in in 1980, is in occupation thereat and is still carrying on the business of a studio.

In 1967, the plaintiffs` predecessors-in-title bought over the property from the previous owners. The plaintiffs became the owners in 1977. Nothing turns on that. The purchase was subject to the tenancy of the first defendant. In the receipts issued by the plaintiffs to the first defendant, it was stated, inter alia, that the tenancy was not to be assigned without the prior consent of the landlord.

On 23 July 1969 the first defendant sought to assign the tenancy to one Tan Kheng Guan, who was the father-in-law of the fourth defendant, Tan Cheon Hock. An agreement to assign (undated) was executed between them. On 30 July 1969 notice of the assignment was given by the first defendant to the plaintiffs. The fourth defendant, occupied the whole of the ground floor of the premises and traded there as Jubilee Records Trading Co (JRTC). The third defendant continued to occupy the first floor as a studio. At the trial the fourth defendant gave evidence to say that the assignment was made in favour of Tan Kheng Guan (his father-in-law) pursuant to certain financial arrangement between them but he would be the one in actual occupation of the premises.

On 3 November 1969, Tan Kheng Guan`s solicitors (M/s Tang & Tan) tendered $660 being rental for the property for `the eighth, ninth and tenth Moons, Chi Iu Year.` On 12 December 1969, M/s Tang & Tan forwarded on behalf of Tan Kheng Guan another cheque for $440, being rent for `the 11th and 12th Moons, Chi Iu Year.`

On 12 December 1969, M/s CS Tay & Co, acting for the plaintiffs, acknowledged receipt of the two cheques and asked for information as to how Tan Kheng Guan took over occupation of the property. There was no response. On 13 February 1970, M/s CS Tay & Co, pursuant to s 21 of the Control of Rent Ordinance (Cap 242) wrote directly to Tan Kheng Guan seeking the following information:

1 The commencing date of your occupying the said premises, and if there is any tenancy agreement, please furnish same to us for our inspection.

(2) From whom did you take over the tenancy.

(3) Any rent receipts or previous rent receipts, for our inspection.

(4) Whom did you tender rent before.

(5) Any other tenants occupying the premises ... .

We would observe that it is a little strange that some of these questions should be asked when notice of the assignment of the tenancy from the first defendant to Tan Kheng Guan was given on 30 July 1969.

On 17 February 1970 Tan Kheng Guan`s solicitors forwarded a cheque for $440 being rent for the `first and second Moons of the current year` and stated they would write soon. However, nothing further came. On 8 April 1970, M/s CS Tay & Co wrote to Tan Kheng Guan`s solicitors as follows:

We refer to our letter dated 19 December 1969 and to our letter dated 13 February 1970 to your client upon which we have not received any reply.

We are instructed by our clients that your client came into the premises without our clients` consent and therefore he has no right of occupation in the said premises therein. Our clients recognize Tan Puay Lian as their tenant and there was an agreement between them that he cannot sublet or assign or transfer any part of the said premises to anyone unless written consent has been obtained from our clients.

In view of the above premises your client has not sought any consent from our clients, therefore our clients reject him as their tenant and therefore he is unlawfully occupying the said premises as a trespasser.

We return herewith the three cheques paid by your client. Kindly acknowledge receipt.

We hereby give your client notice and demand that he should remove and vacate the said premises within two (2) weeks or else our clients may have to take out legal proceedings to recover the said premises from your client.

It would be noted that the communications were between the plaintiffs` solicitors and Tan Kheng Guan or his solicitors. Thereafter, no further rent was tendered by Tan Kheng Guan to the plaintiffs.

Then on 8 February 1971 Tan Kheng Guan`s solicitors wrote to CS Tay & Co offering $5,000 `with a view to rectifying the relationship.` This offer was rejected by the plaintiffs. The plaintiffs say that thereafter they tried to locate the first defendant in order to terminate the contractual tenancy. The evidence shows that some feeble attempts were made in that regard. It was only in 1989 that the plaintiffs located him, leading to the commencement of this action.

In 1978 the second defendant was incorporated by the fourth defendant to take over the business, assets and liabilities of JRTC. The only shareholders of the second defendant are the fourth defendant, his wife and daughter.

On 17 November 1988 the plaintiffs` solicitors (M/s Abraham Low & Partners) wrote to JRTC, the business name of the fourth defendant, and Daguerre Photo Studio (third defendant) asking them how they came to occupy the property, the amount paid for such occupation, the party to whom the amount was paid and the addresses of all the occupiers of the premises.

On 22 November 1988, M/s Drew & Napier, acting for Jubilee Electronic Pte Ltd (second defendant) replied as follows:

We act for Jubilee Electronic Pte Ltd and would refer to your AR Registered letter of 17 November to Jubilee Records Trading Co whose business and assets were taken over by our clients.

Neither our clients nor their predecessors, Jubilee Records Trading Co, have paid any rent to the true owner nor have they acknowledged his title to the property for a considerable time.

Your clients as the owners have lost their right and our clients are not obliged to furnish to them the information they require.

On 2 May 1989 M/s Abraham Low & Partners served a notice to quit on the first defendant and instituted the present action against the first three defendants for the recovery of the possession of the property and for damages and other ancillary reliefs. The fourth defendant was added by an amendment. At the time there was no change in the position as regards the occupants of the premises: the second defendants were in occupation of the ground floor and the third defendants, Daguerre Studio, the first floor. The third defendants` have always regarded themselves as tenant and have since the assignment been paying rent to the fourth defendant.

No appearance to the action was entered by the first defendant and a default judgment was accordingly entered against him. The second and/or fourth defendants claim to have acquired title to the premises by virtue of adverse possession for a period exceeding 12 years commencing 1970 and that the plaintiffs` right to recovery had thereby been barred. They contended that time began to run from the time after the plaintiffs refused to accept the assignment to Tan Kheng Guan and the fourth defendant continued to occupy the property.

The plaintiffs` case is that until they served the notice to quit upon the first defendant the latter remained the tenant of the premises and that their right of action only accrued on the expiry of the notice to quit.

District court decision

The district court proceeded on the basis that the fourth defendant has been in occupation of the property since 1969 without paying any rent to anybody. It was also agreed between counsel that the property comes under the Control of Rent Act (Cap 58). The district court held that in view of the evidence the plaintiffs` claim to recover the property must fail as the second/fourth defendants have proven title based on 12-year adverse possession.

High Court decision

In its judgment [1995] 3 SLR 399 , the High Court felt that the district court in coming to its decision had failed to take into account one important aspect of the matter. The plaintiffs` case was that they had always considered the first defendant to be the contractual tenant until the contractual tenancy was terminated for a breach of the terms of the tenancy agreement. Plaintiffs could take no action against the other defendants while the contractual tenancy between the plaintiffs and the first defendant was in existence. Thus the default judgment obtained against the first defendant for the recovery of possession of the property was crucial and proper consideration should be given to it. The learned judge said:

The fourth defendant unquestionably had actual possession of the property for more than 12 years before the commencement of this suit against him and the other defendants. The plaintiffs, however, at all times considered and accepted only the first defendant as the tenant. Until the contractual tenancy was terminated as a prelude and precondition to the filing of the suit for possession under the Control of Rent Act, it continued to exist. Accordingly, while that contractual tenancy between the plaintiffs and the first defendant existed, the plaintiffs could not take any action for possession against any of the defendants.

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