Tan Ah Suan v Ng Aik Kern and Others

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 03 October 2002
• Neutral Citation: [2002] SGHC 231
• Docket Number: Suit No 697 of 1998
• Date: 03 October 2002
• Published date: 19 September 2003
• Year: 2002
• Plaintiff Counsel: Vincent Yeoh (Vincent Yeoh & Co) (instructed) and Loo Khee Sheng (KS Loo & Co)
• Citation: [2002] SGHC 231
• Defendant Counsel: Shriniwas Rai and A Ravi (Hin Rai & Tan)
• Court: High Court (Singapore)
• Subject Matter: Whether plaintiff acquires such title,Whether collecting rent amounts to exercising act of ownership adverse to title of registered owners,Conveyance,Whether physical occupation of house necessary to support claim of adverse possession,Acquisition of title by 12-year adverse possession,Land

and fourth defendants did not enter appearance in the action, Madam Tan obtained judgment in her favour. However, the judgment was set aside on the application of the personal representatives of OSB’s estate, who were then joined as the fifth and sixth defendants in this action. The fifth defendant, Madam Ng Chwee Lwee, and the sixth defendant, Mr Ong Geok Seng ("OGS"), claimed that the Jalan Daud property is owned by the estate and that Madam Tan did not acquire the title to the property by adverse possession because rent for the said property was paid to the late OSB and subsequently to his estate from 1944 to early 1996. OGS asserted that he collected the rent for the Jalan Daud property until around March 1996, when OST said that rent would no longer be paid because he discovered that OSB did not register his interest in the property under the Registration of Deeds Act.

Held

, dismissing the claim

(1) For adverse possession, there must be both factual possession of the property as well as the requisite intention to possess it or animus possidendi; Powell v McFarlane & Anor (1979) 38 P & CR 452 followed. There was no evidence that OSB occupied the property by staying there. However, that was not fatal to his case as a possessor need not personally be in occupation of the land to be in factual possession or to have the requisite animus possidendi. It is the exercise of the acts of ownership which is crucial and the receipt of rent or grant of licence in respect of the property would be an act of ownership that is adverse to the title of the owner; Soon Peng Yam v Maimon bte Ahmad [1996] 2 SLR 609 followed (see 6-8).

(2) From 1944 until his death in 1961, OSB collected rent from Madam Tan and her husband. As such, he exercised an act of ownership adverse to the title of the registered owners of the Jalan Daud property for more than 12 years. OSB had thus adversely possessed the property for more than 12 years before his death in 1961 (see 9-10).

(3) There is also no room for Madam Tan to contend that OSB’s estate did not exercise rights of ownership with respect to the Jalan Daud property between 1961, when OSB died, and March 1980. Madam Tan accepted that her tenancy did not end with OSB’s death and she admitted that she continued to pay rent to OSB’s first wife, his daughter or his eldest son from 1968 to 1980. In addition, some 10 years after OSB’s death, Madam Tan transferred her husband’s Public Utilities Board ("PUB") account to her name with the assistance of someone from OSB’s family. The letter addressed to the PUB was signed on behalf of OSB and stated that the Jalan Daud property was rented to Madam Tan (see 11-13).

(4) The certified public accountant who audited the accounts of Ong Siong Bee Private Ltd, the holding company for OSB’s family, testified that he personally checked the receipts issued from 1985 to March 1996 with respect to the rent paid for the Jalan Daud property. The handing over of the rent by the estate to Ong Siong Bee Pte Ltd did not affect the estate’s claim to the Jalan Daud property (see 17-19).

(5) A Notice and Return was sent by the Inland Revenue Department ("IRD") in August 1994 to No. 24 Jalan Daud seeking information regarding the owner of the property and whether or not any rent was paid for it. Someone in Madam Tan’s household completed the form by stating that the "owner or agent" to whom a monthly rent was paid was "Ong Gek Seng". This must surely be a reference to OGS. As such, the information in the IRD’s Notice and Return in 1994 corroborates the evidence of OGS that he is known to Madam Tan’s family because he had appeared much earlier than 1996 to collect rent for the Jalan Daud property (see 20-22).

(6) Madam Tan has therefore not discharged the burden of proving that she has become the owner of the Jalan Daud property by adverse possession for 12 years from March 1980. Her claim is accordingly dismissed and she is required to deliver vacant possession of the Jalan Daud property to the estate of OSB within three months from the date of the judgment (see 23).

(7) Before the end of the trial, counsel for the fifth and sixth defendants stated that if Madam Tan’s claim is dismissed and the title of the Jalan Daud property is vested in the estate of OSB, the estate would sell the property within six months and help Madam Tam relocate to another property by giving her $250,000 after the sale. In view of this, the fifth and sixth defendants amended their defence and counterclaim and applied for an order that Madam Tan be paid $250,000 after the Jalan Daud property has been sold by the estate within six months from the date of this judgment. Madam Tan did not object to the amendment. The said order was accordingly granted (see 24).

Cases referred to

Balwant Singh v Double L & T Pte Ltd

[1996] 2 SLR 726 (refd)

Leigh v Jack

(1879) 5 Ex D 264 (refd)

Powell v McFarlane & Anor

(1979) 38 P & CR 452 (folld)

Soon Peng Yam v Maimon bte Ahmad

[1996] 2 SLR 609 (folld)

Legislation referred to

Limitation Act (Cap 163) s 9

Registration of Deeds Act (Cap 269)

Judgment

GROUNDS OF DECISION Cur Adv Vult

1 The plaintiff, Madam Tan Ah Suan, sought a declaration that she acquired the title to and the ownership of No 24, Jalan Daud Singapore 419567 (the "Jalan Daud property") by adverse possession. The first second, third and fourth defendants, who are the registered owners of the Jalan Daud property under the Registration of Deeds Act, Cap 269, did not enter appearance in the action. The fifth defendant, Madam Ng Chwee Lwee, and the sixth defendant, Mr Ong Geok Seng ("OGS"), who are both personal representatives of the estate of the late Mr Ong Siong Bee ("OSB"), claimed that the Jalan Daud property is owned by the said estate and that Madam Tan did not acquire the title to and ownership of the said property by adverse possession because rent for the said property was paid to the late OSB and subsequently to his estate from 1944 to early 1996.

Background

2. Madam Tan, who is presently residing at the Jalan Daud property, and her late husband, Mr Ong Chwee Siak, first occupied a wooden house in the said property in 1944. It is common ground that they moved into the Jalan Daud property with the permission of OSB and that they paid him rent. The tenancy arrangements were not in writing.

3. The monthly rent for the Jalan Daud property, which was initially $15, was increased to $40 in 1968. Madam Tan said that the money was paid to OSB and subsequently to his widow, Madam Tan Lai Ho, his daughter, Ms Ong Chwee Lian, and his son, Mr Ong Teck Chuan ("Ah Chuan"), until March or April 1980. She claimed that no rent has been paid for the said property to anyone since March or April 1980. This was vehemently denied by the sixth defendant, OGS, who asserted that he collected the rent for the Jalan Daud property until around March 1996, when Madam Tan’s son, Mr Ong Swee Thay ("OST"), said that rent would no longer be paid because he had discovered that OSB did not register his interest in the said property under the Registration of Deeds Act.

4. In May 1998, Madam Tan instituted an action against the first, second, third and fourth defendants, claiming that because of her continued, uninterrupted and exclusive possession of the property from 1 April 1980 to 31 March 1992, a period of more than 12 years, she acquired ownership of the said property by virtue of adverse possession by 31 March 1992 at the latest.

5. As the first, second, third and fourth defendants did not enter appearance, Madam Tan obtained judgment in her favour on 14 August 1998. However, two personal representatives of the estate of OSB, who claimed the property on behalf of the estate of OSB, applied to have the judgment in Madam Tan’s favour set aside. On 3 September 2001, the judgment in question was set aside and it was ordered that these two personal representatives of the estate of OSB be joined as the fifth and sixth defendants in Madam Tan’s action.

Whether OSB became the owner of the Jalan Daud property

6. Although it was asserted that OSB purchased the Jalan Daud property during the Japanese occupation, no evidence of this was furnished. As such, it is necessary to determine whether or not OSB became the owner of the said property by virtue of adverse possession.

7. At the outset, it ought to be noted that when section 9 of the Limitation Act was amended in 1994 to abolish claims by way of adverse possession, the Jalan Daud property was held under the common law system regarding the registration of ownership of land. The effect of the 1994 amendments on a claim for adverse possession of land held under the common law system was considered by the Court of Appeal in Balwant Singh v Double L & T Pte Ltd [1996] 2 SLR 726. In that case, Goh Joon Seng J, who delivered the judgment of the Court of Appeal, said as follows at p 732:

Thus s 177 of the [1993 Land Titles Act] by sub-s 1 amended section 9 of the Limitation Act...