Re Lot 114-69 Mukim 22, Singapore and another action

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang JC
• Judgment Date: 24 April 2001
• Neutral Citation: [2001] SGHC 79
• Docket Number: Originating Summons Nos 569 of
• Date: 24 April 2001
• Year: 2001
• Published date: 19 September 2003
• Plaintiff Counsel: Cavinder Bull ( Drew & Napier )
• Citation: [2001] SGHC 79
• Defendant Counsel: Asanthi S Mendis (Attorney GeneralÂ’s Chambers)
• Court: High Court (Singapore)
• Subject Matter: Strata titles-adverse possession-factual possession for decades and intention to exclude world at large,Words and Phrases,Charities,Whether "person" who may bring action to recover land includes charitable trust,Whether "person" who may bring action to recover land includes charitable trust- s 9(1),s 12 Limitation Act (Cap 163, 1996 Ed),ss 9(1), 12 Limitation Act (Cap 163, 1996 Ed),Whether adverse possession may be obtained against charitable trust,"Any person",s 9(1) Limitation Act (Cap 163, 1996 Ed) , s 2(1) Interpretation Act (Cap 1, 1999 Ed),Land,Whether adverse possession made out,Whether Attorney General may bring action to recover land on behalf of charitable trust which had no surviving trustee,Whether charitable trust bound by limitation statute

: Originating Summons 569/84 is an application made by one Ong Yew Kew of 779-A, Upper Serangoon Road pursuant to s 9 of the Limitation Act (Cap 163, 1996 Ed) for the following orders (as indicated in p 14 of the applicant`s solicitors` further submissions):

(a) A Declaration that Ong Yew Kew is entitled to possession of all the land described as Lot 7823 Mukim 22 in the District of Amokioh, Singapore.

(b) A Declaration that all the rights and title to Lot 7823 Mukim 22 in the District of Amokioh, Singapore be vested in Ong Yew Kew and that any rights and title or recovery thereof by any party known or unknown have been extinguished by virtue of the provisions of the Limitation Act.

(c) That the Registrar of Deeds do register in the Register of Deeds the Orders and Declarations made herein.

(d) That Ong Yew Kew be entitled to Lot 7823 Mukim 22 of the District of Amokioh, Singapore by virtue of adverse possession.

(e) A Declaration that Ong Yew Kew acquired title to Lot 114-69 Mukim 22 in the District of Amokioh, Singapore prior to 1 March 1994.

This originating summons was commenced on 11 July 1984. It was last adjourned sine die on 28 September 1984 and it laid dormant until December 2000 when it was restored for hearing by the present solicitors for the applicant. After the commencement of this originating summons, Lot 114-69 Mukim 22 was sub-divided into Lot 7822 Mukim 22 and Lot 7823 Mukim 22. Lot 7822 has been compulsorily acquired by the state while the applicant continues to be in adverse possession of Lot 7823.

Originating Summons 955/96 is the ex parte application by the Collector of Land Revenue under s 40(2) of the Land Acquisition Act (Cap 152) to pay into court $225,000 being the balance compensation award payable in respect of the acquisition of Lot 114-69pt Mukim 22 in October 1995. In 1996, the possessory owner lodged an appeal against this award with the Appeals Board (Land Acquisition). A supplementary award of $1,322,906.85 (including interest) was made in June 1998 and that was also subsequently paid into court.

The background

The following facts appear in the affidavit of Ong Yew Kew filed on 6 December 2000.

Prior to 17 May 1920, the property in question was owned by one Lim Kit Fah. By an indenture dated 17 May 1920, Lim Kit Fah sold the property for $6,500 to five purchasers - Ong Choo Kee, Ong Khay Gim, Quek Chay Hong, Tan Yew Thye and Goh Chin Kee. The said indenture stated that the five persons were to hold the property as `joint-tenants and trustees` but no reference was made to any particular trust and no trust deed was registered against the property. Ong Choo Kee was the grandfather of the applicant.

In 1921, a Chinese temple called the Kew Ong Yah Temple was built on part of the property which had an area of some 33,000sq ft. From what his mother told him, the applicant learned that, while on a business trip to Penang in 1902, his grandfather heard of the deity called Kew Ong Yah. He brought an amulet of the deity back to Singapore for the family altar. One night, his grandfather had a dream in which the deity directed him to build a temple in his honour. Thus, as the family`s tradition would have it, it was the applicant`s grandfather who built the temple.

The temple was and is a private one, with access given to the public to enter, pray and make offerings. The applicant`s family has had its own private shrine and altar on the property since the temple was built in 1921.

In 1921, a big stone tablet was engraved and erected on the property. It recorded the names of the donors and the management committee members of the temple. Ten persons were named as members of the management committee. These included three of the `trustees` mentioned earlier - Ong Choo Kee, Tan Yew Thye and Quek Chay Hong.

In 1925, a smaller stone tablet was erected next to the big one. It was `signed` by Ong Choo Kee as `temple owner`. (The translated inscriptions state: `Person Taking Charge of this Temple: Wang Zhu Ji`). Wang Zhu Ji is the hanyu pinyin version of Ong Choo Kee.

Ong Choo Kee, who died in 1927, had two children. His wife and children continued to live on the property and his son, Ong Chin Hua, took over the management of the temple. The applicant is the son of Ong Chin Hua. Ong Chin Hua, his wife, the applicant and the applicant`s brother lived on the property. Since his birth on 19 April 1934, the applicant has been living on the property save for the years 1958 to 1963 when he was studying in Australia.

By an indenture dated 24 October 1933, Goh Chin Kee (one of the five `trustees` named in the 1920 indenture) purported to appoint Lim Kit Fah and Choong Swee Nyong to be `new trustees` and purported to vest all his rights and interests in the property held on trust in the new trustees. This indenture further stated that the `trust` referred to in the 1920 indenture was a trust in respect of the Kew Ong Yah Temple. The 1933 indenture was not registered until 1947, two years after the death of Goh Chin Kee and more than 11 years after the death of the applicant`s father in 1936.

After his father`s death, the applicant, his mother and his brother continued to have exclusive possession of the property. His mother took charge of the management of the temple, assisted by his brother. The applicant produced a copy of a receipt from the Ponggol Bus Service stating that the monthly rent of $200 for the use of the temple`s yard as a bus depot was paid to the applicant`s mother until April 1960. He also produced a signed typewritten statement of one Daniel Elijah Sundram dated September 1961. Sundram, whose address was stated as 166-8 Upper Serangoon Road, stated that he had known the applicant`s brother since childhood in 1935. He also stated that he had known the applicant`s father, who was a student of Paya Lebar Methodist School, where he was a teacher and principal between 1931 and 1935. He also knew the applicant`s mother as a close friend for over 25 years and stated that the family had been living on the property since the time of the marriage of the applicant`s parents.

The applicant further produced a letter dated 9 November 1961 from the law firm of Laycock & Ong, who were acting as solicitors for the applicant`s mother and his brother, to the Ponggol Bus Co inquiring about the dates when the bus company used the property`s compound as a garage and the monthly rental paid. This letter appears to me to be the reason for the earlier undated `receipt` from the bus company which seems more like a handwritten reply to this letter rather than a receipt.

On 19 February 1962, Lim Kit Fah (one of the `new trustees`) caused a writ of summons (Suit 207/62) to be issued against the applicant`s brother. The statement of claim dated 9 October 1962 was in the following terms:

STATEMENT OF CLAIM

1. By an Indenture of Conveyance and Assignment dated the 31st day of December 1918 (Registered in Volume CDLXXX No. 19) and made between Dr. Narainasamy Veerasamy of the one part and the Plaintiff of the other part the said lands were purchased by the Plaintiff TO HOLD to the Plaintiff according to the nature and tenure thereof.

2. By an Indenture (hereinafter referred to as the said Conveyance) dated the 17th day of May 1920 (Registered in Volume DXXXI No. 118) and made between the Plaintiff of the one part and Ong Choo Kee, Ong Khay Gim, Quek Chay Hong, Tan Yew Thye and Goh Chin Kee of the other part (hereinafter collectively referred to as the Purchasers) the said lands were conveyed and assigned by the Plaintiff to the Purchasers at the price of $6,500/- TO HOLD the same unto the Purchasers as joint tenants and trustees.

3. The trust is not disclosed in the said Conveyance but the Plaintiff states that it was a trust for the erection and upkeep of a Chinese Temple on the said lands to be known as Kew Ong Yah Temple.

4. The original price agreed upon by the Plaintiff and the said Ong Choo Kee for the said land was the sum of $13,000/-.

5. The Plaintiff agreed with the said Ong Choo Kee to reduce the price to $6,500/-, the balance of $6,500/- being the Plaintiff`s donation towards the proposed Chinese Temple to be erected on the said land.

6. It was verbally agreed between the Plaintiff and the said Ong Choo Kee that unless the said Chinese Temple was erected on the said land, the Plaintiff would not be selling the said lands to the said Ong Choo Kee at the price of $6,500/-.

7. In order to bind the said Ong Choo Kee to this arrangement it was verbally agreed between the Plaintiff and the said Ong Choo Kee that the names of three other persons be inserted in the Assignment of Trustees of the said Temple together with the said Ong Choo Kee.

8. In order further to bind the said Ong Choo Kee to the said arrangement and to protect the Plaintiff`s interest in the property it was agreed that the Plaintiff himself be named as one of the purchasers and trustees of the said land but that since the Plaintiff`s name already appeared as Vendor, it was verbally agreed that he should nominate some other person as the fifth purchaser and trustee.

9. The Plaintiff was paid the sum of $5,200/- on completion of the sale, his share of $1,300/- part thereof being deducted from the said purchase price of $6,500/-.

10. The said Temple was erected by the said Ong Choo Kee and others in or about the year 1921.

11. All the Purchasers have since died. The said Quek Chay Hong died on the 3rd day of September 1923, the said Ong Choo Kee died on the 3rd day of June 1927, the said Tan Yew Thye died on the 29th day of January 1931 and the said Ong Khay Gim died on the 2nd day of October 1932.

12. By a Deed of Appointment of New Trustees dated the 24th day of October 1933 (Registered in Volume 1013 No. 153) and made between the said Goh Chin Kee of the one part and the Plaintiff and Choong Swee Nyong of the other part the said Goh Chin Kee retired from the trusts of the...