Soon Peng Yam and another (trustees of the Chinese Swimming Club) v Maimon bte Ahmad (administratrix of Sukinah bte Haji Hassan, deceased)

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 14 February 1995
• Neutral Citation: [1995] SGCA 15
• Date: 14 February 1995
• Subject Matter: Actual physical possession of land,Civil Procedure,Whether admissible to show fact of negotiation if not its content,'Without prejudice' documentary evidence,O 59 r 3(2) Rules of the Supreme Court,Land,Whether receipt of rent by possessor from third party an act inconsistent with rights of true owner,Appeal,Whether prejudice occasioned by amendment- O 20 rr 5, 7 & O 57 r 13(1) Rules of the Supreme Court,Amendment to capacity of party suing,Adverse possession,Costs,Parties,- Animus possidendi,Whether correspondence not specifically marked 'without prejudice' were part of negotiations on 'without prejudice' basis,ss 9 & 15 Limitation Act (Cap 163),Evidence,Whether necessary,Admissibility of evidence,Factors constituting adverse possession of land,When appellate court should interfere with trial court's award,Whether amendment permissible at appellate stage
• Docket Number: Civil Appeal No 30 of 1994
• Published date: 19 September 2003
• Defendant Counsel: Wee Han Kim (Wee Eng Lock & Son)
• Court: Court of Appeal (Singapore)
• Plaintiff Counsel: Kirpal Singh and Mak Kok Weng (Mak & Pnrs)

The facts

The respondent as administratrix of the estate of her mother, Sukinah bte Haji Hassan deceased, claimed possessory title to portions of lots 46-7 and 46-10 of mk 25, Singapore. She claimed to have been in exclusive, continuous and undisputed adverse possession of the land on which house, No 111-G Kampong Amber, Singapore, stands, for a period exceeding 12 years. The paper title to the land was in the name of the appellants as trustees for the Chinese Swimming Club (the club) and the appellants were sued as such.

In the High Court, the respondent filed three affidavits in support of her claim which deposed to the following facts. The respondent`s mother owned the house now known as 111-G Kampong Amber. She stayed in it and paid a ground rent of $1 per month to The Bankers Trust Co Ltd as trustee for the club. The respondent herself lived in this house from early 1950 onward. In April 1978, the respondent`s mother passed away and from then on no rent was paid to the club in respect of this land by the respondent or anyone else. In September 1978, the respondent moved out of the house. She alleged that a relative, Haji, rented from her the house along with his friend Encik Saini and their respective families. Haji moved out of the house after about a year but Encik Saini continued in occupation of the house. The respondent said that Haji and Encik Saini paid her a monthly rent of $110. This was inclusive of electricity and the PUB account continued to be in the respondent`s name. Annexed to the affidavit was a payment reminder from the PUB which was addressed to her and dated June 1990. Subsequently, Encik Saini agreed to be responsible for the electricity charges himself and the respondent reduced the rent to $80 a month. To evidence Encik Saini`s occupation of the house, the respondent annexed copies of the identity cards of Encik Saini, his wife and his elder son together with a copy of the birth certificate of his younger son. Each of these stated their address as 111-G Kampong Amber. Importantly, the respondent also annexed a return of house ownership which Encik Saini signed on 25 October 1985 which was addressed to the Assistant Director, Water Pollution Control and Drainage, Sewerage Department. In it, Encik Saini gave the respondent`s name and address as being the name and address of the owner of the house. The respondent then went on to say that by a letter dated 20 March 1984, the club gave notice purporting to terminate her mother`s tenancy with effect from 30 April 1984 . However, no ejectment proceedings were taken by the club nor did the respondent begin paying any rent. In 1985, the respondent complied with a notice from the Ministry of the Environment requiring the installation of a rural sewerage system at a cost of $2,350. In November 1991, she paid $291 for some repairs to the house.

Two affidavits were filed on behalf of the appellants by Mr Mei Phei Sitt (Mr Mei), the general manager and secretary of the club. Amongst other things, Mr Mei stated that the club had purchased the land on 25 May 1949. The property was situated adjacent to the club`s premises and the club had bought it with a view to expanding its facilities when the need arose. The club permitted the various occupiers to continue in occupation as ground tenants as it did not have an immediate use for the land. Mr Mei also deposed to the fact that negotiations had been carried out between the club and the respondent through her son and authorised representative, Encik Ramli Rahim. Mr Mei annexed copies of letters sent to the club`s solicitors by Encik Ramli Rahim which, he alleged, showed that the negotiations had been carried out on the basis that the club was the landlord and the respondent the tenant. These negotiations proved futile. Eventually the club submitted plans for the development of the land and applications were filed with the Tenants` Compensation Board on 26 December 1992 to recover possession of the same. At the hearing before the Tenants` Compensation Board the respondent claimed adverse possession. Subsequently, she commenced this action in the High Court claiming possessory title to the land.

The decision of the High Court

In the court below, the learned judicial commissioner held in favour of the respondent and made a declaration that she had acquired possessory title to that part of the land on which house 111-G Kampong Amber stands. She said that the respondent`s mother was a monthly tenant of the club and that from her death in April 1978, rent ceased to be paid in respect of this piece of land. Thus, the respondent was in adverse possession from that date. The learned judicial commissioner was clearly of the opinion that the respondent had exercised sufficient dominion in respect of the same to be in adverse possession from April 1978. She rejected the club`s submission that the respondent was merely a licensee as she said that the degree of control exercised over the land by the respondent was inconsistent with any residual rights of control in the club. This was in spite of the fact that the respondent was not personally in physical occupation of the land. She said that even if Encik Saini and his family were not living in the house as tenants, they were in occupation of it only by virtue of the respondent`s consent. Furthermore, the club had treated the respondent as the person in possession of the land both for the purposes of negotiations and in respect of the application to the Tenants` Compensation Board. Thus, the learned judicial commissioner concluded that even though the respondent was not in actual occupation of the land in question, she was still in possession of it throughout the limitation period.

The learned judicial commissioner also rejected the club`s submission that the correspondence that formed part of the negotiations between the parties amounted to an acknowledgement of the club`s title. She said that the club having chosen to start the whole process on a `without prejudice` basis could not thereafter discard that label for its own convenience. The correspondence was part of the `without prejudice` negotiations and, therefore, inadmissible. Further, the mere fact that negotiations took place did not necessarily imply that the respondent acknowledged the club`s title. The negotiations were aimed at getting the respondent to vacate the land and her position in this could as well have been that of owner as that of tenant of the land.

However, the area of land awarded to the respondent was only approximately 90 sq m as opposed to the 2,196 square feet claimed. This was because the learned judicial commissioner`s site visit revealed that there was no fence around the house and the public could move freely around the house right up to its walls. Therefore, the area claimed by the respondent was held to be excessive and she was only awarded possessory title to the actual space occupied by the house and its curtilage. She was also awarded 75% of the taxed costs.

The appeal

Before us, the appellants made two main submissions: firstly, they contended that there was insufficient evidence upon which to base a finding of adverse possession; secondly, it was argued that the negotiation correspondence was indeed an acknowledgement of the club`s title to the land thereby defeating the claim of adverse possession.

Adverse possession

By s 9(1) of the Limitation Act (Cap 163) (the Act) it is provided that:

No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

Though s 9(3) now provides that this section shall not apply to an action to recover land from a person by reason only of his unauthorized occupation of the land, it does not apply to this case as s 9(3) only came into force on 1 March 1994, almost...