Koh Ah Kin v Yat Yuen Hong Co Limited

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 18 November 2020
• Neutral Citation: [2020] SGHC 252
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 159 of 2020
• Published date: 21 November 2020
• Year: 2020
• Hearing Date: 31 August 2020
• Plaintiff Counsel: Yap Peck Choon Patrick and Callie Kwong Yan Li (BR Law Corporation)
• Defendant Counsel: Davinder Singh s/o Amar Singh SC and Tan Ruo Yu (Davinder Singh Chambers LLC)
• Subject Matter: Land,Adverse possession
• Citation: [2020] SGHC 252

Lee Seiu Kin J: Introduction

The plaintiff purchased the property at 115 University Road Singapore 291911 (the “Property”) in June 1979. He has remained as the registered proprietor of the Property from 11 December 1979. The Property is located beside a strip of land described as Lot No. MK17-02870X (the “Strip of Land”). This Strip of Land belongs to the defendant and is the subject of contention in this originating summons.

The plaintiff’s claim, in essence, is that he is the owner of the Strip of Land having adversely possessed it since 1979 (or in shorthand, acquired title by adverse possession). The defendant disputes this and brings a counterclaim seeking an order that the plaintiff removes the fences and walls surrounding the Strip of Land erected by the plaintiff.

The law on adverse possession

The Land Titles Act 1993 (Act No 27 of 1993), together with s 9(3) of the Limitation Act (Cap 163, 1996 Rev Ed), abolished the acquisition of title by adverse possession in 1994. The position was explained by the Court of Appeal in Balwant Singh v Double L & T Pte Ltd [1996] 2 SLR(R) 7 at [24] as follows:

… Firstly, for land held under the common law system if the adverse possessor did not have 12 years of adverse possession as of 1 March 1994, he would now not be able to make a claim – see s 9(3) of the Limitation Act. Conversely, if he had the requisite 12 years, he could rely on s 177(3) of the 1993 LTA to preserve his possessory title. Secondly, for registered land held under the provisions of the repealed LTA, the adverse possessor could rely on ss 172(7) and 172(8) of the new LTA. Thirdly, for registered land held under the provisions of the new LTA, no adverse possession claims are now allowed unless s 172(7) or 172(8) of the new LTA applies.

The Strip of Land was unregistered land, of which the plaintiff was in possession. It was thus agreed between parties that the dispute in the present situation fell within the first category elucidated in the extract above.¹

In order to prove adverse possession, a claimant must establish two elements: factual possession (factum possessionis) and the requisite intention to possess (animus possidendi): Ahmad Kasim bin Adam (suing as an administrator of the estate of Adam bin Haji Anwar and in his own personal capacity) v Moona Esmail Tamby Merican s/o Mohamed Ganse and others [2019] 1 SLR 1185 at [34]; Powell v McFarlane (1977) 38 P&CR 452 at 470–471 (“Powell”). Adverse possession must also have occurred for at least 12 continuous years, but which can be constituted of separate, continuous, periods by differing individuals: Re Lot 114-69 Mukim 22, Singapore [2001] 1SLR(R) 811 at [41].

As to what each of the elements require, this was elaborated in JA Pye (Oxford) Ltd and another v Graham and another [2002] UKHL 30 (“JA Pye”) at [40] as follows:

… there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control (‘factual possession’); (2) an intention to exercise such custody and control on one’s own behalf and for one’s own benefit (‘intention to possess’). …

It bears mentioning that the burden of proof remains on the party that is claiming adverse possession: City Developments Ltd v Estate of Syed Allowee bin Ally Aljunied, deceased [2009] 2 SLR(R) 223 at [31]; Tan Ah Suan v Ng Aik Kern and others [2002] 2 SLR(R) 1135 at [15].

As to the standard and evidence required, however, the defendant submits that while the standard of proof is the balance of probabilities, the “evidence of factual possession and intention must be compelling” ². It makes this point, relying on the cases of Wong Shing Chai Jimmy v Good Allied Investment Ltd [2017] HKCU 3137 (“Wong Shing Chai”) and Wong Wai Chi Susanna v Lam Lai Chun [2020] HKCU 693 (“Wong Wai Chi”). In Wong Shing Chai, the court cited Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 at [26], for the proposition that:

The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

[emphasis added]

This same extract was again cited in Wong Wai Chi at [19] as part of the broad principles concerning adverse possession. The court in Wong Wai Chi, however, goes on to state at [20] that the “trespasser must adduce clear and affirmative evidence to show that he had the requisite intention to possess”, citing Slade J’s judgment in Powell at 472.

In my view, the need for compelling evidence only relates to the second element of an intention to possess. This is seen from Powell itself at 476 where it is stated that:

… it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.

[emphasis added in bold]

This portion of Powell was also cited with approval by Lord Hutton in JA Pye at [77]. Counsel for the defendant, Mr Davinder Singh SC, eventually agreed that there was no need to apply such an exacting evidential standard to the first element of factual possession. All that is required at that stage is a general assessment of the circumstances in question. This must necessarily be correct as proof of such intention would require something beyond factual possession.

The present case

In order to succeed in this application, the plaintiff must prove that he was in adverse possession of the Property on or before 1 March 1982, at least twelve years prior to the change of the law on 1 March 1994. The plaintiff’s case on factual possession really boils down to two points. First, he alleges that “in or about early 1980”,³ he had carried out several works to the Strip of Land. In his affidavits,⁴ he claims that the Strip of Land was initially demarcated by two fences; one that separated the Strip of Land and his Property (the “Inner Fence”) and one that separated the Strip of Land and the open space next to it (the “Outer Fence”). With the help of contractors, both fences were removed, and a retaining wall and a new fence (the “New Fence”) was built in place of the outer fence. He also erected a separate retaining wall and fence at the back of the Property. As part of the construction works, the plaintiff claims to have filled up the Strip of Land with soil and flattened it.

In order to prove his claim, the plaintiff adduces two sets of photographs of the New Fence. The first set contains a single photograph, dated January 1984;⁵ the plaintiff relies on this...