Tay Tuan Kiat and Another v Pritnam Singh Brar

• Jurisdiction: Singapore
• Judge: L P Thean J
• Judgment Date: 10 July 1986
• Neutral Citation: [1986] SGHC 19
• Docket Number: Suit No 3552 of 1977
• Date: 10 July 1986
• Year: 1986
• Published date: 19 September 2003
• Plaintiff Counsel: KS Lo (Allen & Gledhill)
• Citation: [1986] SGHC 19
• Defendant Counsel: Mohideen Rubin (Amarjit Rubin & Partners)
• Court: High Court (Singapore)
• Subject Matter: Nominal damages,When time begins to run,Mandatory injunction,Limitation of Actions,Trespass to land,Tort,Doctrine of laches,Land,Whether cause of action barred by Limitation Act,Trespass,Defence of laches,ss 6 & 12 Limitation Act (Cap 10, 1970 Ed),Retaining wall and structure encroaching on plaintiffs' land,Adjoining property

The plaintiffs are the owners of the property, Lot 24-18 of Mukim IV with a house thereon known as 18 First Avenue, Singapore. The defendant is the owner and occupier of the adjoining property, Lot 24-231 also of Mukim IV with a house thereon known as No 15 Second Avenue, Singapore. The plaintiffs` house faces the First Avenue, and the defendant`s house faces the Second Avenue, and they share a common boundary (the common boundary) at the back of the respective houses. The defendant`s property is much higher than the plaintiffs` property; the difference in levels of the two properties is about 15 feet.

The plaintiffs` property came to the family a long time ago. The first plaintiff`s father bought the property in 1936 and conveyed it to the first plaintiff`s mother in 1941. Subsequently, the mother conveyed the property to the first plaintiff in 1955, and in January 1976 the first plaintiff conveyed the property to himself and the second plaintiff as joint tenants and since then they have been holding the property as such. The defendant bought his property on 7 March 1967. At that time the defendant`s property sloped down steeply towards the plaintiffs` property at or near the common boundary. Separating the two properties was a fence of about five feet high at the top of the slope - on the same level as the land on which the defendants` house stands - and next to the fence on the slope were a hedge and lalang. There was no retaining wall at the slope, except a small white inlet wall at the bottom of the slope which was built by the predecessor in title of the defendant. The purpose of this inlet wall was of course to prevent earth on the top from slipping.

Immediately or soon after his purchase, the defendant removed the fence and the hedge and lalang separating the two properties and built a retaining wall in their place. The wall is almost perpendicular, the top of which is on the same level as the land on which stands the defendant`s house and along the edge of the retaining wall at the top the defendant erected a chain link fence of about five feet high. The bottom of the retaining wall rests on the plaintiffs` property. In 1974 or thereabout, the first plaintiff carried out renovation to his house and in the course of such renovation his architect, Lim Kok Cheng (PW 1), found that the retaining wall built by the defendant was standing wholly on the plaintiffs` property. He duly informed the first plaintiff, first over the telephone and subsequently by a letter (exh P 9). After receipt of his architect`s letter, the first plaintiff consulted his solicitors and they wrote a letter dated 19 July 1975 (exh AB 1) to the defendant, complaining that the retaining wall encroached on the plaintiffs` property and requesting it to be removed by 31 August 1975. This was followed by another letter of 14 August 1975 to the defendant, also written by the solicitors for the first plaintiff, complaining that the retaining wall was not structurally sound and that a shed or hut erected on the defendant`s property also encroached on the plaintiffs` property, and requesting the defendant to remove the shed and to reconstruct a wall in accordance with requirements of the planning authority. No action appeared to have been taken by defendant in response to such requests. About two years later, on 2 July 1977, the plaintiffs` solicitors wrote a further letter to the defendant complaining once again of the encroachment by the retaining wall on the plaintiffs` property and requesting the defendant to remove it within 14 days; the defendant however did not comply with this request. Then on 5 December 1977, the plaintiffs took o ut a writ against the defendant. In their statement of claim (which was subsequently amended, re-amended and further re-amended) the plaintiffs pleaded that during the period between March 1967 and October 1968, the defendant wrongfully built the retaining wall on the plaintiffs` land and thereby trespassed on the plaintiffs` land and wrongfully remained in possession of the portion of land occupied by the retaining wall and the plaintiffs have thereby been deprived of the use and enjoyment of the said portion of land. They claim for: (i) a declaration that the defendant is and has been in wrongful possession of the plaintiffs` land and has trespassed thereon; (ii) an order that the defendant do forthwith pull down and remove the existing retaining wall and erect a new wall in place thereof but standing within the boundary of the defendant`s land, and (iii) damages. The claim is resisted by the defendant and he raised two defences: (i) the claim by the plaintiffs is barred by the Limitation Act, and (ii) the plaintiffs` claim for relief is also barred by delay amounting to laches in that the plaintiffs did not make any complaint about the retaining wall until 19 July 1975 or thereabout and did not commence any proceeding until 5 December 1977.

It is not in dispute that the defendant had built the retaining wall at or near the slope abutting on the common boundary but on the plaintiffs` property. According to the survey plan (exh P 13) the retaining wall occupies an area of approximately 11.8 sq m of the plaintiffs` property. It is also not in dispute that the defendant having built the retaining wall, erected the chain link fence along the edge and on the top of the retaining wail: see exhs P8D, P8F and P13; thus the fence also stands on the plaintiffs` property. The defendant also erected a shed or hut on his land at or near one end of the retaining wall and a part of this structure stands on the plaintiffs` property. The defendant therefore has committed acts of trespass on the plaintiffs` property, and the plaintiffs have a claim against him. The question is whether this claim is barred by (i) the Limitation Act (Cap 10, 1970 Ed) (the Act) and (ii) laches, as pleaded in the defence.

Mr Rubin for the defendant submitted that the claim of the plaintiffs was for damages for trespass and not for recovery of possession of their property and the relevant period of...