Mohamed Said bin Ali and Another v Ka Wah Bank

• Jurisdiction: Singapore
• Judge: Grimberg
• Judgment Date: 23 June 1989
• Neutral Citation: [1989] SGHC 57
• Date: 23 June 1989
• Subject Matter: Whether occupants entitled to protection of Control of Rent Act (Cap 58),Injunctions,Landlord and Tenant,Civil Procedure,Eviction order against tenants of mortgagor,Rent control,Interim injunction,Effect of failure to do so,O 83 r 3(4) Rules of the Supreme Court 1970,Whether full and frank disclosure required,Recovery of possession,Whether occupants of mortgaged premises should be given notice of possessory order by mortgagee,Whether mortgagee's failure to give notice of eviction order ipso facto entitled mortgagor's tenants to an injunction,Failure due to solicitor,Serious question to be tried
• Docket Number: Originating Summons No 914 of 1988
• Published date: 19 September 2003
• Defendant Counsel: Lee Chin Seon (M Jiffry & Co)
• Court: High Court (Singapore)
• Plaintiff Counsel: Ruth Rajasingam (Tang & Co)

Cur Adv Vult

The plaintiffs in these proceedings say that they are the lawful tenants of No 75 Rowell Road, Singapore (the premises), and they claim the protection of the Control of Rent Act (Cap 58) (the Act). The defendant is a bank incorporated in Hong Kong (the bank), to which the premises were mortgaged by three companies in the Ngo Hock Group (Ngo Hock) under a mortgage dated 2 October 1982 in consideration of loans advanced by the bank to Ngo Hock. Ngo Hock having defaulted, the bank on 4 October 1985 issued an originating summons (the mortgage action) against Ngo Hock claiming the principal and interest due, and `delivery by the defendants to the plaintiffs or the plaintiffs` authorized representatives of possession of the said mortgaged property`. Ngo Hock failed to enter an appearance to the mortgage action, and the bank obtained judgment in default on 12 November 1985 for the amount claimed, and for delivery of possession of the premises by Ngo Hock to the bank or its authorized representatives. On 12 December 1985 the bank applied for the issue of a writ of possession. The praecipe for the writ, which was addressed to the registrar, said:

Please issue a writ of possession against Ngo Hock Investment Pte Ltd ... to deliver possession of No 75 Rowell Road, Singapore, under the order of court herein dated November 1985.

A writ of possession was issued on 12 December 1985 and was served by the sheriff on Mohamed Said bin Ali, the first plaintiff. It is safe to assume that he was served on the premises. The first plaintiff went to see his Member of Parliament, who wrote to the bank`s solicitors on 27 March 1986 saying that there were 17 persons living on the premises, all members of a family, and that the family had been in occupation since before the war. He asked the bank to give the occupants a longer grace period in which to move out.

In the month that followed, all four plaintiffs consulted solicitors, who wrote to the bank`s solicitors on 21 April 1986, stating that their clients claimed the protection of the Act. They asked for confirmation that the writ of possession would not be executed against their clients, and stated that in the absence of such assurance, they had instructions `to apply to the court immediately for relief against the writ of possession ...`. The bank`s solicitors responded, stating that they would investigate the plaintiffs` claim to protection, and confirming that execution of the writ of possession would not be carried out pending the result of those inquiries. There matters appear to have rested for some two years. However, on 25 May 1988, the bank`s solicitors wrote to the plaintiffs stating that the bank did not recognize them as tenants, and requesting them to surrender possession by 6 June 1988. The plaintiffs did not surrender possession, as required of them, and correspondence ensued between their solicitors and the bank`s solicitors. In the event, a second writ of possession was issued on 13 August 1988, on the application of the bank`s solicitors, since they took the view that the first writ, having been issued some 32 months earlier, might no longer be valid. On 1 September 1988, the sheriff delivered a notice to the premises in the following terms:

To: The defendant(s)

and all occupiers of the premises

No 75 Rowell Road

Singapore

Writ of Possession No 248 of 1988

Pursuant to this writ of possession, eviction will be carried out on Thursday, 15 September 1988.

In the event of the premises being found locked, forced entry will be effected on the date of eviction.

The plaintiffs` solicitors issued the present originating summons on 15 September 1988, the day on which the plaintiffs were to be evicted, claiming, inter alia, declarations that the plaintiffs are the lawful tenants of the premises and that `the orders for possession made on 12 December 1985 and 13 August 1988 are not binding on the plaintiffs`. As to the latter, what the plaintiffs must be taken to be seeking is a declaration that neither writ of possession is enforceable against them.

On the same day, 15 September 1988, the plaintiffs applied by summons, ex parte, for an injunction restraining the defendants from carrying out the eviction `of the occupants of No 75 Rowell Road, Singapore, pursuant to the order of court made on 15 August 1988`, by which the plaintiffs must be assumed to be referring to the second writ of possession. The affidavit in support of the ex parte application was sworn by the first plaintiff. The affidavit made no reference to what was undoubted fact, namely, that the plaintiffs had had no notice of the mortgage action brought by the bank against Ngo Hock, and that they had no opportunity to attend and, if thought fit, apply to be joined as defendants prior to the order for possession being made. However, Chan Sek Keong J, before whom the application for ex parte relief was heard, made the following note of the submission advanced by counsel for the plaintiffs:

Defendants obtained order for possession against mortgagees, Ngo Hock Investments in OS 110/85. Plaintiffs were not a party to those proceedings. Order for possession not binding on plaintiffs. Plaintiffs were in possession as tenants since pre-war, before mortgage was created.

Clearly, therefore, in amplification of the grounds set out in the affidavit concerning their alleged right to protection under the Act, the plaintiffs were saying that they ought to have been given an opportunity to be heard in the mortgage action.

In the event, the learned judge granted the plaintiffs the injunction they sought. There are now two motions before me. By the first the plaintiffs seek a continuation of the injunction until trial of the action; by the second the defendants ask that the injunction be discharged. The same issues arise in both. They are:

(i) whether the plaintiffs ought to have been given notice of the mortgage action, in order to enable them to attend and, if thought fit, apply to be joined as defendants;

(ii) if yes, whether the bank`s failure to give notice entitles the plaintiffs ipso facto to a continuation of their injunction; or whether it is appropriate, the plaintiffs now being before me, for this court to consider whether the injunction should be continued in view of the plaintiffs` claim to protection under the Act.

Whether the plaintiffs ought to have been give notice of the mortgage action

The mortgage action was brought under the provisions of O 83. That order applies, inter alia, to any action by a mortgagee in which there is a claim for `delivery of possession ... to the mortgagee by the mortgagor or by any other person who is or is alleged to be in possession of the property.` Order 83 r 3(4) provides:

Where the plaintiff claims delivery of possession, the affidavit must give particulars of every person who to the best of the plaintiff`s knowledge is in possession of the mortgaged property.

In purported compliance with this rule, Linda Cheng, a legal officer of the bank, in her affidavit in support of the relief claimed in the mortgage action stated:

To the best of my knowledge and belief, the mortgaged property is presently used as a warehouse for the storage of motor vehicle spare parts. There are no persons residing at the mortgaged property.

This statement, in the face of the evidence before me, was clearly wrong. The bank, as I have said, is incorporated in Hong Kong. There is nothing in the evidence to suggest that, at the material time, it had a place of business in Singapore. The funds advanced by the bank on the security of the mortgage were so advanced to Ngo Hock in Hong Kong. Linda Cheng was resident in Hong Kong. I conclude that no proper inquiry was made by the bank, or by its solicitors in Singapore, as to whether the premises were occupied and that, had inquiries been made, they would have disclosed the presence of a number of occupants on the premises, including the plaintiffs.

In my judgment, it is at least desirable if not incumbent upon a mortgagee plaintiff in a mortgage action, in order to give efficacy to O 83 r 3(4), to make due inquiry concerning the occupancy of the mortgaged premises. If there are occupants they must be given notice if a mortgage action is commenced, and they must...