Tai Wah Garments & Knitting Factory Pte Ltd v Tan Pui Liang and Others

• Jurisdiction: Singapore
• Judge: G P Selvam J
• Judgment Date: 06 May 1995
• Neutral Citation: [1995] SGHC 123
• Docket Number: District Court Appeal No 53 of 1993
• Date: 06 May 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Harry Elias and Tan Chee Meng (Harry Elias & Pnrs) and Paul Low (Peter Moe & Pnrs)
• Citation: [1995] SGHC 123
• Defendant Counsel: Morris John, Philip Lam and Anil Sachdev (Drew & Napier)
• Court: High Court (Singapore)
• Subject Matter: Land,Whether owner acted to assert rights of ownership,Animus possidendi,Whether shown,ss 9 & 13 Limitation Act (Cap 163),Whether the acts of party claiming adverse possession amounted to sufficient evidence of ouster of owner's rights,Adverse possession

The facts

Cur Adv Vult

This is an appeal against the decision of the district court. The subject matter of the case is the property known as 406 North Bridge Road, Singapore. The appellants herein who were the plaintiffs below had purchased the property from Tai Wah Trading Co Ltd in 1977. The conveyance was in respect of lot 178-2 (4,683 sq ft) of TS XI comprising Nos 404, 406 and 408 North Bridge Road, Singapore.

Tai Wah Trading Co Ltd itself had purchased the property in 1967. It was then in the occupation of Tan Pui Liang, the first defendant in the district court case, on a monthly tenancy. The first defendant had been paying rent to Tai Wah Trading Co Ltd. The plaintiffs, therefore, acquired the property subject to the tenancy of the first defendant and the possession and/or occupation by one or more of the other three defendants.

The events that led to the suit in the district court are as follows: The rent receipt issued by the plaintiffs` predecessors to the first defendant contained a condition that there would be no subletting, assignment or transfer of the tenancy.

In 1969 the fourth defendant (Tan Cheon Hock) had a meeting with one Mr Chee Choon Seng of Tai Wah Trading Co Ltd. The fourth defendant wanted a transfer of the tenancy from the first defendant to himself or alternatively he wanted to purchase the property. Mr Chee turned down the proposal. Nothing came out of that brief encounter.

The first defendant wrote a letter dated 30 July 1969 to Tai Wah Trading Co Ltd notifying them that he had assigned the tenancy of the premises to one Tan Kheng Guan and that Tan Kheng Guan would be responsible for paying the monthly rentals. No document purporting to evidence the assignment of the tenancy accompanied the letter. The fourth defendant was the son-in-law of the Tan Kheng Guan. On 3 November 1989 Tan Kheng Guan`s solicitors (M/s Tang & Tan) wrote to Tai Wah Trading Co Ltd forwarding the rental of $660 for the `8th, 9th and 10th Moons, Chi Iu Year` in respect of the property. This was followed by another letter of 12 December 1969 from the same solicitors forwarding the rental of $440 for the `11th and 12th Moons, Chi Iu Year.`

On 12 December 1969 Tai Wah Trading Co Ltd`s solicitors (CS Tay & Co) acknowledged the two cheques for $660 and $440 and sought the following information:

1 The date of your client`s occupation of the abovesaid premises as a tenant.

2 From whom did your client take over the tenancy from?

3 Any proof of agreement showing your client`s tenancy or the assignment of tenancy from the previous tenant?

4 Production of rent receipts or previous rent receipts.

There was no response in substance to the letter from Tang & Tan. So CS Tay & Co on 13 February 1970 wrote directly to Tan Kheng Guan as follows:

We act for M/s Tai Wah Trading Co Ltd.

We are instructed by our clients that they recently came to know that you are the new occupier of the abovenamed premises which premises belong to our clients.

We hereby request you to supply us the following enquiries under s 21 of the Control of Rent Ordinance (Cap 242).

1 The commencing date of your occupying the said premises and if there is any tenancy agreement, please furnish same to us for our inspection.

2 From whom did you take over the tenancy.

3 Any rent receipts or previous rent receipts for our inspection.

4 Whom did you tender rent before.

5 Any other tenants occupying the premises now other than yourself and their names and the date of occupation.

Please take note that failure to comply with our request for such inquiries shall render you to conviction for a term of imprisonment not exceeding six months or to a fine not exceeding one thousand dollars.

The letter made it abundantly clear that there was a Control of Rent Act problem.

Tan Kheng Guan`s solicitors once again on 17 February 1970 forwarded a cheque for $440 being the rents for `the 1st and 2nd Moons of the current year` and also said that they would write soon. This plainly meant that they would write on the information sought. But it was not done. So CS Tay & Co, wrote on 8 April 1970 to Mr Tang Liang Hong, Tan Kheng Guan`s solicitor, as follows:

We refer you to our letter dated 19 December 1969 and to our letter dated 13 February 1970 to your client upon which we have not received any reply.

We are instructed by our clients that your client came into the premises without our clients` consent and therefore he has no right of occupation in the said premises therein. Our clients recognize Tan Puay Lian as their tenant and there was an agreement between them that he cannot sublet or assign or transfer any part of the said premises to anyone unless written consent has been obtained from our clients.

In view of the above premises your client has not sought any consent from our clients, therefore our clients reject him as their tenant and therefore he is unlawfully occupying the said premises as a trespasser.

We return herewith the three cheques paid by your client. Kindly acknowledge receipt.

We hereby give your client notice and demand that he should remove and vacate the said premises within two (2) weeks or else our clients may have to take out legal proceedings to recover the said premises from your client. [Emphasis added]

What is clear is that as far as Tai Wah Trading Co Ltd were concerned, the first defendant continued to be the tenant and they recognized his contractual as well as statutory right of possession of the property.

There was also an unstamped, and undated as to date and month but bearing the year 1969, document which purported to be an assignment of the tenancy from the first defendant to Tan Kheng Guan.

Then on 8 February 1971 Tang & Tan wrote to CS Tay & Co on behalf of Tan Kheng Guan, offering $5,000 `with a view to rectifying the relationship`. This was again rejected by CS Tay & Co.

From the letters and the document it is abundantly clear that an assignment of tenancy was asserted on behalf of Tan Kheng Guan and not the fourth defendant, who, as far as Tai Wah Trading Co Ltd was concerned, did not show himself to them apart from the brief encounter he had with Mr Chee which resulted in nothing. It is also clear that it was Tan Kheng Guan who was treated as a trespasser by Tai Wah Trading Co Ltd and not the fourth defendant. The evidence before the court showed that Tan Kheng Guan was never in occupation of the property at any time. Accordingly, as far as the plaintiffs are concerned, there was no effective assignment of tenancy to Tan Kheng Guan. One further point that emerges from the letters and documents is that Tai Wah Trading Co Ltd was asserting its rights under the Control of Rent Act. It was appreciated that an action for possession had to comply with the provisions of the Control of Rent Act.

Nothing of moment happened until 1988 except that in 1977 the property changed hands to the plaintiffs who, in effect, were under the management of the same persons as their predecessors.

In the interim, the plaintiffs` rent collector was looking for the first defendant but failed to find him. The efforts made by him appear to be anything but strenuous.

The next main event occurred in 1988. Abraham Low and Partners, solicitors acting for the plaintiffs, on 17 November 1988 wrote to Jubilee Records Trading Co, the business name of the fourth respondent and Daguerre Photo Studio (the third defendants), referring to their occupation of the premises and asking how they came to occupy the property, the amount paid for such occupation, the party to whom the amount was paid and the address of all occupiers of the premises.

Drew & Napier, solicitors for Jubilee Electronic Pte Ltd , wrote saying that their clients had taken over the business and assets of Jubilee Records Trading Co. It was asserted that neither Jubilee Electronic Pte Ltd nor Jubilee Records Trading Co had paid any rent to the true owner nor had they acknowledged his title to the property for a considerable time. `Your clients,` the letter said, `as the owners have lost their right and our clients are not obliged to furnish them the information they require.`

Daguerre Photo Studio`s solicitors, Sukumar & Teo, wrote stating that their clients had been in occupation since 1942 and that no payment was made.

The suit in district court

In May 1989, Abraham Low & Partners served a notice to quit on the first defendant and commenced DCS 3983/89.

In their statement of claim the plaintiffs asserted that it was a term of the tenancy that there would be no subletting, assignment or transfer of the tenancy. They further asserted that the first defendant breached the alleged condition against subletting, assignment or transfer in that he purported to assign the tenancy or sublet the premises to one Jubilee Records Trading Co without the plaintiffs` consent. The plaintiffs, by a notice to quit dated 2 May 1989 and served on the first defendant terminated the tenancy and instituted proceedings seeking possession of the premises. The statement of claim said that the first defendant was not in occupation of the premises and resided at Blk 46, Circuit Rd, #06-646, Singapore.

The plaintiffs joined three other parties as defendants: the second defendants who were in occupation of the ground floor, the third defendants Lim Ming Joon and Chong Jeng Chong trading as Daguerre Studio who occupied the upstairs and the fourth defendant, Tan Cheon Hock alias Tan Chong Hock, who claimed to be in occupation of the premises. An order for vacant possession was sought against all the defendants.

Default judgment against the first defendant

The first defendant did not enter an appearance with the result that the plaintiffs were given judgment against him.

Defence and counterclaim of second defendants

The second defendants entered an appearance and filed a defence and a counterclaim. They said that they and the fourth defendants were `either jointly and/or separately` in...