Success Enterprises Ltd v Eng Ah Boon

• Jurisdiction: Singapore
• Judge: A V Winslow J
• Judgment Date: 03 October 1967
• Neutral Citation: [1967] SGHC 18
• Docket Number: Suit No 561 of 1966
• Date: 03 October 1967
• Year: 1967
• Published date: 19 September 2003
• Plaintiff Counsel: KC Chan
• Citation: [1967] SGHC 18
• Defendant Counsel: R Yap
• Court: High Court (Singapore)
• Subject Matter: Defendant tenant occupying lands belonging to plaintiff landlord,Whether premises so substantially altered as to become new buildings,Whether premises protected under provisions of Control of Rent Ordinance,Evidence,Whether premises so substantially altered after 7 September 1947 as to become new buildings,Onus of proof,Proof of evidence,Landlord and Tenant,Section 2 Control of Rent Ordinance (Cap 242, 1955 Rev Ed).,Rent and service charges

The issue which I have to decide in this action is whether the premises known as No 44, Aroozoo Avenue are protected under the provisions of the Control of Rent Ordinance (Cap 242), (hereinafter referred to as the Ordinance).

Whereas the plaintiffs, Success Enterprises Ltd claim that the said premises were built or were completed on or after the seventh day of September 1947 the defendant, who is their tenant, denies this and claims that the premises were in fact built or completed before that date and that he is therefore entitled to the protection conferred by the ordinance. Before embarking upon a consideration of the evidence adduced on both sides and the law applicable thereto, it may be desirable to consider the definition of `premises` contained in s 2 of the Ordinance. That definition reads as follows:

`Premises` means any dwelling house, flat, factory, warehouse, office, counting house, shop, school and any other building whether of permanent or temporary construction in which persons are employed or work and any part of any such building let or sublet separately and includes any land whereon any such building is or has been erected with the consent of the landlord but does not include any new building built or completed after 7 September 1947.

It will be observed that this definition excludes any new building built or completed after 7 September 1947.

In the present case there were originally three structures on the land occupied by the defendant when he went into occupation prior to 1947. There now remain only two structures, the third having been demolished in 1961 and the question which I have to determine is whether one or the other or both of the two remaining structures is a building built or completed before 7 September 1947 it being contended on behalf of the defendant, on the authority of Syed Ahmed Al-Junied & Ors v Reshty [1966] 2 MLJ 124 . FC that even if one of these structures is a building built or completed before 7 September 1947 then the premises in question will fall within the protection of the ordinance.

It may be useful at this stage to dispose of a question which was raised at the end of the case as to whether the burden of proof in these cases lies on the landlord or the tenant. Wee Chong Jin J as he then was, held in Dadhi Ral Yado v Mukat Rai [1958] MLJ 193 at p 195 that `it is for the landlord to establish that the case falls within the second part of the definition`, ie, that the buildings in dispute were built or completed after 7 September 1947.

Counsel for the plaintiffs submitted that this decision had been overruled by the Federal Court of Malaysia, sitting in Kota Bahru, in Mohamed bin Myddin v Teo Mek Yok [1966] 2 MLJ 285 . FC where the Federal Court held that the onus is on the tenant to prove that he is within the protection of the Ordinance. Counsel further submitted that if the decision of the Federal Court of Malaysia sitting in Kota Bahru in 1966 is not considered to be binding on the High Court in Singapore, I should nevertheless refrain from following the decision in the Dadhi Ral Yado case to which I have earlier referred.

Be that as it may, the fact remains that counsel for the plaintiffs commenced calling evidence to prove his case without any reference to the Federal Court decision. If he is right in his contention that the onus is on the tenant one would have thought that he would have drawn the court`s attention to the Federal Court decision at the very commencement of the trial and insisted on the tenant`s discharging that burden first. However, he conceded, in his final address, that the plaintiff was bound by his election to give evidence first and that since all the evidence was already before the court the case could be decided on `a preponderance of evidence regardless of whoever has the burden of proof`. If the burden of proof lies with the landlord then the course followed by the plaintiff in this case in adducing evidence first was the correct one. If, however, the burden is on the tenant to prove that the premises are controlled, he could not have been prejudiced in any way because he would have had the advantage of hearing the landlord`s case first and the landlord cannot complain that he has been prejudiced because he volunteered to give evidence first and literally asked for it.

The more important question that arises in this case is whether the two structures have undergone such substantial structural and/or other alterations as to have become new buildings. This, as Wee Chong Jin CJ held in Eastern Realty Co Ltd v Chan Hua Seng [1967] 2 MLJ 195 is `always a question of degree depending on the facts of each particular case. No test of universal application can in my view be laid down.` Numerous other cases, notably English, Irish and Malaysian, were also cited in this connection to some of which I shall refer later.

I now propose to deal with the facts on which I make the following findings:

(a) the defendant is the tenant of No 44 Aroozoo Avenue and has been so since 1952. He and his family had moved into the premises in 1946 when his uncle, Chia Chin Lin, who died in 1964 was ground tenant. At that time the premises bore a different number, to wit, 144-19 Aroozoo Avenue. The uncle had apparently bought the structures and sheds on the land on which he was ground tenant from Khoo Chuan Hee for $130 in 1946. Khoo Chuan Hee gave evidence to the effect that he first saw three structures on the land in 1943. The defendant and his witnesses were agreed that there were three huts on the land until 1961 of which the middle one was the largest and was used as a dwelling house. This hut will be referred to as `the main hut`. The hut at the back of the main hut was occupied by the uncle on his return from smoking opium. This hut will be referred to as `the back hut`. The third hut, which no longer exists, was never used as a dwelling house and with this I am not further concerned;

(b) in 1961 an application was made by the defendant to the chief building surveyor for reconstruction or renovation of the main hut. There was some dispute between the parties as to whether this application was one for reconstruction or repairs. The witnesses from the chief building surveyor`s department took the view that the application was one for reconstruction for reasons given by them which I accept. The important question to be decided does not turn so much on whether the application was for reconstruction or for repairs as on whether whatever changes took place had effected a change of identity of the main hut so as to constitute it a new building. No application was made for repairs or alterations to the back hut but it is not disputed that both these huts were dilapidated old plank huts with attap roofs. In fact the first Assistant Building Inspector found the main hut to be an old plank attap house in very bad condition. This was as a result of his inspection of the site on 7 September 1961. It should be noted that this witness, Teo Tian Teng (PW 2), saw no toilet in that hut on that date;

(c) on 17 January 1962 after the Chief Building Surveyor`s file, ex P1, on the subject had been sent to the Property Tax Department, Lim Seow Hiong (PW 3) inspected the premises and subsequently the annual value which had previously been assessed at $48 was revised to $204. This witness tendered his file, ex P2, in evidence which, on the pro forma, shows the results of his inspection and the reasons for his valuation not only of the main hut but also the back hut to which he refers as `an open-sided shed`. According to this witness he saw both the main hut and the back hut. Although this witness was chiefly concerned with the main hut which he found to be in good condition, he did not record the condition of the open-sided shed as he claimed that the department would not pay attention to subsidiary structures unless they are reconstructed. He was, however, positive that he did in fact see this shed and gave its measurements as 16` x 9` According to him the back hut or open-sided shed as he called it had four posts and a corrugated iron roof but he agreed that it might have had more than four pillars. What he was sure about is that at least one of the side walls was missing. It is difficult to believe that this witness would have...