In the matter of Lot 114-69 Mukim XXII, Singapore (No 2)

JurisdictionSingapore
JudgeTay Yong Kwang JC
Judgment Date27 January 2003
Neutral Citation[2003] SGHC 13
Date27 January 2003
Subject MatterWhether use of land following adverse possession must also be adverse to owner,Adverse possession,Whether those in joint possession with him had intention of excluding true owners of the land,Land,Whether applicant had requisite exclusive possession,Strata titles
Docket NumberOriginating Summons No 569 of 1984
Published date07 October 2003
Defendant CounselJeffrey Chan and Leonard Goh (Attorney-General's Chambers)
CourtHigh Court (Singapore)
Plaintiff CounselCavinder Bull and Low Sze Gin (Drew & Napier)

1 On 12 February 2001, I granted Ong Yew Kew, the Applicant, a declaration that all rights and title to Lot 7823 Mukim 22 in the District of Amokioh, Singapore be vested in him by virtue of adverse possession (see [2001] 2 SLR 509). The Kew Ong Yah Temple and other structures stand on the land in question. The hearing was conducted using only affidavit evidence.

2 The Attorney-General, as the Protector of Charities, lodged an appeal against my decision (Civil Appeal No. 600021 of 2001) and subsequently filed a Motion to adduce further evidence on the ground that the Attorney-General’s Chambers ("AGC") had been contacted by certain members of the public after my decision was reported in the newspapers and that these members could testify to matters adverse to the claims made by the Applicant. The Court of Appeal adjourned the appeal indefinitely and ordered that the case be remitted to me for the hearing of further oral evidence including that of the Applicant here.

3 The parties then attended before me for directions as to the further conduct of the case. An advertisement about this Originating Summons was ordered to be published in one issue each of the Straits Times and of the Lian He Zao Bao newspapers. All witnesses who would be called by the parties had to swear an affidavit each.

4 It was argued by the Applicant at one of these pre-trial sessions that the Court of Appeal’s order meant that I was only to take oral evidence and should not make any adjudication on the facts. The AGC disagreed with this interpretation of the Court of Appeal’s order. I was of the view that I was directed to rehear the matter, make findings of fact on the oral testimony of all the witnesses and decide whether such findings would cause me to change my earlier decision made on the basis of affidavit evidence alone.

5 On the first day of the re-hearing, the AGC submitted that the hearing could proceed on the affidavits filed by both parties, without the need for oral testimony, as they were of the view that the evidence as it stood was not sufficient for the Applicant to prove his case. I held that unless there was an agreed statement of facts, cross-examination of the witnesses would be necessary whenever there was a dispute as to facts.

6 I was also told by the AGC that one of their five witnesses who had sworn an affidavit (Ong Hock Siong) was working in Shanghai, China and would not be able to return here to testify as he was in poor health. In the end, one of his siblings (Ong Pang Lek) took his place and swore an affidavit on essentially the same matters dealt with in the affidavit of Ong Hock Siong.

The AGC’s witnesses

Tan Lee Choo

7 Tan Lee Choo, the 82 year old aunt of the Applicant’s sister-in-law, testified that she had been living at 779 Upper Serangoon Road for some 64 years since her marriage in 1938. She was presently still living in the zinc house which stood on the land in question. It was built by her father-in-law before she married his son, Lim Hoon Leong. Both men were now deceased, her late husband having passed away in 1981.

8 She denied that the Applicant had exclusive possession of the land in issue or that he gave her permission to stay in that zinc house after 1966. She asserted she had been living there as of right throughout the 64 years of her occupation. The Applicant was only 4 years old when she went to live in that house. She had never asked him at any time for permission to remain there.

9 She agreed that the Applicant had been paying the property tax on the zinc house since the early 1970s. This was an informal arrangement she had made with him as he was the caretaker of the Kew Ong Yah Temple. There were two toilets behind the zinc house which were used by members of the public who went to the temple. It was the agreement that Tan Lee Choo’s family would pay the utility bills for those two toilets while the Applicant paid the property tax on the house. To date, she was doing the same.

10 She added that she viewed the Applicant as a caretaker of the temple at all times and never as the owner of the land in question nor of the house.

11 Her family was not on good terms with the Applicant. She denied that her late husband had asked the Applicant in 1966 for permission to continue living on the land or that he sought his permission before installing some water pipes leading from the house to the main road. The two toilets at the back of her house were built by the Applicant but she used to pay him $6 a month. When he subsequently refused to let her family use those toilets, they constructed another one inside the house. She agreed later that she did not have the informal arrangement with the Applicant described above.

Thomas Boo Wee Seng

12 Thomas Boo Wee Seng, 72 years old, started going to the temple in the early 1950s after he married the ‘adopted’ daughter of Tan Suan Neo, the Applicant’s mother. He got to know the Applicant and Lim Poh Hong (the Applicant’s sister-in-law) and her family. Thomas would go to the temple during the ninth lunar month festivities and at least once every month.

13 The Applicant used to greet him whenever he was at the temple visiting Lim Poh Hong and her family. After the Applicant’s mother passed away, the Applicant became cold towards Thomas because of the latter’s family’s good relationship with Lim Poh Hong and her family. There was a dispute between the families of the Applicant and of Lim Poh Hong.

14 Thomas asserted that the temple was a public one. He used to park his car on the temple grounds in the 1970s and the 1980s whenever he went there. Others did the same thing. The main gate would be open all the time and he never needed anyone’s permission to enter the temple or its grounds.

15 The temple was sustained by donations from the members of the public who worshipped there. On a number of occasions in the 1970s, he saw the Applicant and his family counting the collections during the ninth lunar month festivities. Lim Poh Hong’s family was never involved in the counting of money from the collections.

16 Thomas viewed the Applicant as the main caretaker of the temple and not its owner as he had taken over that role from his mother. His mother did not own the temple or its grounds.

17 In cross-examination, Thomas agreed there was never any reason for the Applicant to have to ask him to leave the temple grounds. He had not been to the Applicant’s house which also sat on the land in issue. He had also not gone up the pagoda inside the temple although his wife had. It was a sacred area like those in other temples where access was restricted to the caretakers and the workers. His wife had gone up the pagoda as she used to sew curtains for the temple and needed to take measurements there.

18 The temple’s management used to reside in a committee but as the members of the committee passed away one after the other, the Applicant’s mother took over and eventually so did the Applicant. No formality was involved.

Koh Nam Kwang

19 Koh Nam Kwang, 68 years old, started going to the temple about 50 years ago to pray and to help out during the ninth lunar month festivities. He would be given some money by way of ‘ang pow’ by the then caretaker of the temple, Ong Siang Keng, the elder brother of the Applicant, for the help rendered. He would also visit Ong Siang Keng and his family who were living on the land in issue. He also knew the Applicant’s mother. When Ong Siang Keng passed away in 1963, he continued to visit his widow, Lim Poh Hong, and her children. The Applicant did not like him as he was close to Ong Siang Keng’s family. He never asked the Applicant for ‘ang pows’ and the Applicant did not give him any either. He denied he was unhappy with the Applicant because of this.

20 He helped out during the said festivities every year until around 1989. The festivities would last nine days and thousands of devotees would go to the temple, some of whom would stay overnight there. He would help Lim Poh Hong sell incense paper and joss sticks and help to carry the sedan chair of the deity in a procession as part of the celebrations. He would also help to man the stalls on the temple grounds and keep watch over the temple on some nights as it would be open at all hours during the festivities.

21 He also asserted that the temple was a public, not a private, one. The main gates to the temple grounds would be open at all times and he and members of the public had unrestricted access to the temple and its grounds despite the sign "Private Property" at the gates. He agreed that the Applicant’s house, built in the 1970s, was out of bounds to the public. Access to the pagoda in the temple was restricted to those who worked in the temple. He agreed there was a room at one side of the altar which was used for ancestral worship by only the Applicant’s family.

22 He believed that the Applicant was only a caretaker of the temple having taken over the role from his predecessors. Sometime in 1963, while he was helping out at the temple during the ninth lunar month, he overheard a conversation between the Applicant’s mother and her relative (one Ker Pek). The relative asked her whom the temple belonged to and her reply was that it belonged to no one but to the public.

Ang Eng Huat

23 Ang Eng Huat, the 42 year old grandson of Ong Khay Gim, said that his grandfather was one of the purchasers and original trustees of the land on which the temple stood. He was told by his mother that Ong Khay Gim appointed the Applicant’s grandfather, Ong Choo Kee, as caretaker of the temple. Ong Khay Gim passed away around 1933 and the ancestral tablet bearing his name was kept in the temple together with the tablets of some 10 relatives of Ang Eng Huat.

24 He testified that Ong Choo Kee was never the owner of the temple. The smaller stone tablet on the temple grounds, erected in 1925, described Ong Choo Kee in the Chinese...

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1 books & journal articles
  • Land Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2003, December 2003
    • 1 December 2003
    ...ordered that the case be remitted to the same judge for the hearing of further oral evidence. In Re Lot 114-69 Mukim 22, Singapore (No 2)[2003] 1 SLR 773, Tay Yong Kwang JC (as he then was) took the view that he was directed to rehear the matter, make findings of fact on the oral testimony ......

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