Wong Kok Chin v Mah Ten Kui Joseph

JurisdictionSingapore
JudgeChan Sek Keong J
Judgment Date30 April 1992
Neutral Citation[1992] SGCA 31
Docket NumberCivil Appeal No 99 of 1989
Date30 April 1992
Year1992
Published date19 September 2003
Plaintiff CounselEng Hwi Cheng (JS Yeh & Co)
Citation[1992] SGCA 31
Defendant CounselGeorge Lim (Cynthia Chua & Co)
CourtCourt of Appeal (Singapore)
Subject MatterLand,Adverse possession,Whether adverse possessor had caveatable interest,Qualified certificate of title,Whether appellant's title to encroached land extinguished,Overview o legislative provisions with respect to qualified titles and acquisition of title to registered land by adverse possession,Conversion of land into registered land,Whether notice of reassertion of ownership by appellant prevailed over caveat lodged by adverse possessor,ss 19, 20, 42, 43 & 44 Land Titles Act (Cap 157)

Cur Adv Vult

In both these appeals, the appellant is the registered proprietor of the land comprised in Lot 1253 of Mukim 15 and the respondent is the registered proprietor of the contiguous land comprised in Lot 1252. When the parties took possession of their respective properties in 1969, there was a fence which purportedly demarcated the boundary between the properties. The fence was erected in 1969 and, unknown to both parties at that time, encroached upon part of the appellant`s land (`the encroached land`).

On 23 August 1974, the appellant`s land was brought under the provisions of the Land Titles Act (`the LTA`) (Cap 276, 1970 Ed) and a qualified certificate of title was issued in respect thereof.


Following the discovery of the encroachment, the appellant took down the fence on 6 June 1988 and, through his solicitors, gave written notice thereof to the respondent.
On 10 June 1988, the respondent, through his solicitors, notified the appellant that his title to the encroached land had been extinguished by the adverse possession of the respondent. On 16 June 1988, the respondent erected a new fence in the same position as the former fence.

On 23 June 1988, the appellant lodged a notice of reassertion of ownership under s 44 of the LTA (Cap 157).
On 27 June 1988, the respondent lodged a caveat against the appellant`s property, claiming an interest as adverse possessor in the encroached land.

In May 1989, the appellant commenced proceedings (Originating Summons No 468 of 1989) for a declaration that he was still the registered proprietor of Lot 1253, including the encroached land, and for consequential reliefs to give effect to the declaration.
On his part, the respondent commenced proceedings (Originating Summons No 635 of 1989) for a declaration that the title of the appellant in the encroached land had been extinguished by limitation, and for consequential reliefs to give effect to the declaration.

Lai Kew Chai J, who heard both actions, gave judgment for the respondent.
These appeals lie against those decisions.

Originating Summons No 468 of 1989

Prior to the coming into force of the LTA in parts, commencing from 1959, title to land in Singapore was evidenced by grants or leases issued by the East India Company, and later the successor state under the Crown Lands Ordinance (now known as the State Lands Act). All grants were either for estates in fee simple or estates in perpetuity. All subsequent dealings in land were effected by assurances under deed and all such deeds were not admissible in evidence to prove title unless they were registered under the Registration of Deeds Act. The object of the LTA was to simplify dealings in land by the introduction of a register of titles to mirror land ownership (`the register is everything` principle or the `what you see is what you get` principle). As a corollary to that principle, the bona fide purchaser will obtain the title of the vendor as mirrored in the land register (`the indefeasibility principle`). The system was intended to supersede, in the course of time, the registration of deeds system which had been in force in Singapore since 1886.

To achieve those objects, it was necessary to create a new estate in land to replace the estates and interests known to the common law and equity, viz the legal estate and interest and the equitable estate and interest.
In this respect, Mr John Baalman, the draftsman of the LTA, has made the following comments in The Singapore Torrens System (1961) at p 7:

The most fundamental change in law effected by the [LTA] is that which replaces the legal estate of the common law, with a statutory `registered estate`. Title to land under the provisions of the [LTA] rests, not on any rule of the common law which says that ownership passes from one person to another by the act of the owner in executing a certain document, but on certain sections of the [LTA] (notably ss 27[37] and 23[38]) which say that title passes when a certain government official enters and signs a memorial on the folium of a book - s 27[37]. It is the act of signing this memorial which divests the existing owner and vests in his successor a statutory title correspon, in most of its terminology and incidents, with a title under the common law ... .



Estates and interests in land under the [LTA] are either `registered` or `unregistered`.
Almost invariably the latter will be equitably estates and interests. And it is customary to call them such, just as it is customary to refer to the registered proprietor`s `legal` estate. But in estimating the relative vulnerability of an unregistered interest, nothing will hinge on whether it rests on doctrines of equity, or otherwise. It is simply an unregistered interest, and unless protected by caveat, has no status against a purchaser dealing with the proprietor of registered land.

The LTA deals primarily with legal estates in land by converting them into registered estates.
Upon conversion, the legal owner becomes the proprietor of the land. But the LTA does not abolish equitable estates and interests, whether existing before or after conversion. Such interests, being unregistered interests, continue to be valid, but in order that they do not fog the mirror, a scheme of caveats was also introduced to protect such interests against subsequent purchasers.

To activate the title registration scheme, land held under and subject to existing law has to be converted into registered land and registered titles issued in substitution for existing common law titles.
Under the LTA, this is done by way of primary applications by landowners or the Registrar of Titles who initiate the conversions. In making such conversions, the Registrar of Titles is authorized to issue unqualified titles or qualified titles for such lands. The only difference between them is that a qualified title is subject to all existing interests affecting the land prior to the date of issue of such title, whereas an unqualified title is free of all such interests. In the case of a qualified title, the certificate of title is indorsed with a `caution` which reads: `This certificate of title is held subject to any interest which may have affected the land comprised herein at the date of issue hereof.` The purpose of the caution is to warn the person dealing with the qualified proprietor that the proprietor does not have a clean title and that the registration of his transfer, per se, will not confer on him any better title. But, in all other respects, a qualified title is indistinguishable from an unqualified one.

Sections 19 and 20 - qualified titles

The legislative scheme with respect to qualified titles is set out in ss 19 and 20 of the LTA (Cap 157) which provides as follows:

(19) - (1) Upon the issue of a qualified certificate of title the Registrar shall endorse on the relevant folio of the land-register a caution warning persons dealing with the proprietor that the land therein comprised is held subject to any interest which affected it at the date of issue of the qualified certificate of title, and so long as the caution remains on the folio the land shall be so held.

(2) In favour of any purchaser from the proprietor, a caution lapses at the expiration of 5 years from the date of issue of the qualified certificate of title, and the purchaser may request the Registrar to enter on the folio of the land-register a notification of the lapsing.

(3) When the lapsing of a caution has been notified on the folio of the land-register , the certificate of title ceases to be qualified, and the land therein comprised is thenceforth held subject only to such interests as are registered or notified on the folio of the land-register and to such interests as are otherwise excepted by section 38.

(4) Any person deprived of land by the operation of subsection (3) does not by reason of that deprivation have any claim against the assurance fund.

(5) The proprietor of land comprised in a qualified certificate of title may at any time apply to the Registrar for cancellation of the caution endorsed thereon, and upon proof to his satisfaction that there are no outstanding interests which are not notified on the folio of the land-register the Registrar shall enter thereon a notification cancelling the caution.

(6) For the purposes of section 138, the person upon whose application a caution is cancelled shall be deemed to be the person upon whose application the land was brought under the provisions of this Act.

(20) - (1) The Registrar shall endorse on the folio of the land-register constituted by a qualified certificate of title a notification of any caveat or other subsisting encumbrance -

(a) which is apparent to him (whether by search in the caveat index or otherwise) at the time of issuing that certificate of title; or

(b) which is subsequently brought to his attention as in this section provided.

(2) Any person claiming an interest in land which was subsisting at the date of issue of a qualified certificate of title for that land may, so long as a caution remains on the folio of the land-register, protect that interest by a caveat pursuant to section 104, and the Registrar shall enter a notification of such a caveat in the land-register.

(3) The proprietor in whose name a qualified certificate of title is issued may lodge with the Registrar a statement setting out particulars of any subsisting interest affecting the land therein comprised which is known to him and which is not already notified as aforesaid, and the Registrar shall enter a notification of that interest on the relevant folio of the land-register.

(4) The proprietor named in a qualified certificate of title who has knowledge of an encumbrance or interest affecting the land therein comprised which is not notified on the relevant folio of the land-register, and who disposes of or otherwise deals with or creates any interest in that land without having lodged a...

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17 cases
  • Tan Beng Swee v Ho Lam Poh and Another
    • Singapore
    • High Court (Singapore)
    • 4 d4 Dezembro d4 1997
    ...[1965] 1 MLJ 69 (folld) Tan Siok Gek v Ng Kim Yeo [1997] 1 SLR (R) 487; [1997] 2 SLR 691 (distd) Wong Kok Chin v Mah Ten Kui Joseph [1992] 1 SLR (R) 894; [1992] 2 SLR 161 (distd) Land Titles Act (Cap 157, 1985 Rev Ed) s 42 (consd) Land Titles Act (Cap 157, 1994 Rev Ed) ss 50, 172 (7), 172 (......
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  • Fones Christina v Cheong Eng Khoon Roland
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    • Court of Appeal (Singapore)
    • 19 d1 Setembro d1 2005
    ...never lodged any caveat against No 12 before its title became unqualified. 29 Second is the case of Wong Kok Chin v Mah Ten Kui Joseph [1992] 2 SLR 161 (“Wong Kok Chin”) where the adverse possession commenced in 1969, the land was brought under registered land in 1974 with the issue of a qu......
  • TSM Development Pte Ltd v Leonard Stephanie Celine nee Pereira
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    ...above), Khoo J had also referred to the Court of Appeal’s judgment (delivered by Chan Sek Keong J) in Wong Kok Chin v Mah Ten Kui Joseph [1992] 2 SLR 161. I shall return to this case 34 Mr Gan pointed out that neither counsel nor Khoo J referred to Tan Siok Gek v Ng Kim Neo ([20] supra). In......
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2 books & journal articles
  • Land Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2005, December 2005
    • 1 d4 Dezembro d4 2005
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  • Land Law
    • Singapore
    • Singapore Academy of Law Annual Review No. 2000, December 2000
    • 1 d5 Dezembro d5 2000
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