Ho Hang Wan v. Ma Ting Cheung

CACV000042/1989

Headnote

1. A bare licence terminates automatically on the death of the licensor not on notice of that death.

2. Where for the purpose of establishing a possessory title to land, unequivocal conduct is relied upon as constituting dispossession, the concept of animus possidendi is significant. But if the possessory conduct is clear and unequivocal, animus is inferred.

On Appeal from the High Court in

Miscellaneous Proceedings No. 1032 of 1987

Coram: Hon Fuad, V-P, Hunter & Macdougall, JJA

Date of Hearing: 7 & 9 June 1989 and 12 December 1989

Date of Handing down of Judgment: 19 December 1989

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J U D G M E N T

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Hunter, JA :

1. On 3rd February 1989 Deputy Judge Litton, QC: -

(1) Dismissed the appellant plaintiff's claim for a declaration that she had acquired a good possessory title to land in the village of Tong, Yang San Chuen, Ping Shan in the New Territories and described as Lots 1139D, 1140D and a portion of Lot 114,10 all in Demarcation District No. 121 ("the land")

(2) Granted to the defendant respondent as personal representative of Ma Sz Tsang deceased on his counterclaim, orders for possession of the said land, for damages to be assessed and for costs.

From this determination the plaintiff appeals.

2. The basic facts found by the judge can be summarised in this way. The deceased was the registered proprietor of the land. In 1953 or 1954 he left the villageand remained away until he died intestate in Guangzhou on 21st April 1964. He left the management and use of his land in the village to the control of Madame Leung Lin. She grew sweet potatoes on tile land. In 1957 she was approached by the plaintiff and her husband who were looking for lane, and allowed there into possession of the land in return for the payment to her of $200 by way of compensation for the loss of her crop. She asserted then and later that she so acted as agent for the deceased. The judge so found, and the respondent's late attempt to challenge this finding on appeal cannot succeed. The judge also found that tile plaintiff and her husband entered upon the land as licensees and not in any way as adverse possessors as was contended by the plaintiff below. There is no challenge to this finding.

3. Up until the time of the plaintiff's entry the land was not fenced. This was done by her and her husband. According to the evidence of a villager, Mr Ng Sau, which the judge accepted, the plaintiff and her husband took possession of the whole land at the start, and then gradually erected structures all over it. This work seems to have been completed by about 1963 or 1964. We know that the published commencement date of the husband's retail store business was 1st August 1963.

4. The plaintiff and her husband lived and carried on their business on the site until the husband's death in 1963. The business was then registered in the plaintiff's name. It has been conceded that no distinction can be drawn between the position of the plaintiff and her husband.

5. In may 1907 the plaintiff first sought her present relief by originating summons. This resulted first in the defendant's appointment as personal representative; and secondly on 2nd November 1987 in the service by the defendant upon the plaintiff of a notice terminating her licence to occupy the land which licence was said to have been granted by Madam Leung Lin as agent for the deceased.

6. Having rejected the plaintiff's initial submission, and found that she entered upon the land as a licensee, the judge had to consider her alternative contention that upon such a finding: -

(1) This licence terminated by operation of law upon the deceased's death on 21st April 1964; and

(2) That thereafter the defendant's cause of action for possession of the land accrued within the meaning of section 13(l) of the Limitation Ordinance (Cap 347), and that the plaintiff's possession for more than twenty years, section was then both exclusive and adverse as it was no longer referable to her licence.

7. The judge rejected both contentions. On the first he acknowledged that the law was so stated in Halsbury's Laws (4th Edition) Vol 27 paragraph 7, but concluded that the statement was not supported by and was indeed contrary to the authorities there cited. Upon the second he found against the plaintiff on adverse possession upon the basis that she and her husband had not established any animus possidendi. This was first because their, possession was upon his first finding referable throughout to a licence; and secondly upon the basis that they did not know of the death of the deceased and

"nothing suggests that their state of mind was different before or after 1964. They regarded themselves throughout as licensees".

On this appeal the argument of both counsel, to whom we are indebted, has properly centered on these two issues.

Licence

8. Mr Robert Tang, QC now accepts that the judge erred and that the law was correctly stated by Lord Devlin in Terunnanse v Terunnanse [1968] AC 1066 at p 1095 where he said:

"A revocable licence is automatically determined by the death of the licensor".

But he seeks to arrive at tile same conclusion as the judge by a different route and by reliance upon tile trespass cases particularly Minister of Health v Bellotti [1944] RB 298 and Robson v Hallett [1967] 2 QB 939.

9. There are three stages to his argument. First, on the termination of tile licence, any licensee is entitled to a reasonable time to vacate premises. Secondly, until this reasonable time has elapsed, the licensor has no cause of action in trespass, or alternatively would obtain no order for possession. Thirdly, such reasonable time does not start to run on termination, ie death, but only when the licensee has knowledge of the death.

10. I cannot accept this third proposition. It denies the basic premise. It is not supported by authority, as tile trespass cases themselves suggest that time runs from termination not notice. Acceptance of it would involve rewriting the law, in that the licence would not automatically determine on death, but only upon notice of death. Further I think here is considerable force in Mr Denis Chang, QC's submission that propositions 1 and 2 may be right out are irrelevant, as the material cause of action here is not trespass but recovery of land or ejectment. I therefore conclude that this licence in fact terminated on the deceased's death.

Animus Possidendi

11. Mr Tang's argument here is hot based upon any objective test of conduct. It is admitted that the plaintiff, having covered the site with structures and used it as a store and a residence, could not wore plainly have demonstrated exclusive physical possession to the world. Nor is it based upon any allegation or admission of actual intent. In evidence the plaintiff denied any licence and asserted actual adverse intent from the outset. It is based upon a notional imputation of an intent to this plaintiff as a hypothetical reasonable licensee who had not forgotten the existence of the original licence. Such hypothetical licensee, not having known of the death, would have had, if challenged, to have conceded the right of the licensor to demand possession at sortie future date. A person in such a state of mind, actual or attributed, cannot Mr Tang asserts, shows sufficient animus. It matters not that to the outside world she could be seen to be in exclusive possession if there was ho animus to dispossess the licensor.

12. In my judgment Mr Tang's submission does not reflect the true significance of animus possidendi in these cases. The 19th century judges found no occasion to mention the phrase. When commenting upon the effect of "enclosure" in Seddon v Smith 36 LT 168 Cockburn CJ simply described it as "the strongest possible evidence of adverse possession". He did not find it necessary to explain or to add that this was because

"The act of enclosure manifested tile claimant possessor's intent to maintain the exclusivity of his possession and to exclude the world including tile true owner".

Perhaps he regarded such explanation as either unnecessary or self-evident.

13. Cockburn CJ admittedly referred to tile claimant's intentions in Leigh v Jack (1879) 5 Ex D 264, which was plainly a case where equivocal conduct was relied upon to constitute dispossession. This was noted in Littledale v Liverpool College [1900] 1 Ch 19, and it was in the context of, equivocal conduct in that case that we find tile first reported use of the phrase by Lindley MR: -

"Possess ion by the plaintiffs involves an animus possidendi - ie occupation with the intention of excluding the owner as well as other people".

This was coupled with the significant addition: -

"When possession or dispossession has to De inferred from equivocal acts, the intention with which they are done is all important see Leigh v Jack at p 203".

14. Dispossession in that case turned upon the function of the padlocked gate erected by the plaintiffs at tire Penny Lane end of the strip. Was it to perform the function of a ring fence, ie "to exclude everyone" with the result "that everyone was, in fact excluded" p 22; or was it simply to protect the plaintiff's right of way. The, court narrowly chose the latter. But the judgments made it clear that if the locked gate had stood alone, with no intruding right of way, the plaintiff's conduct would have been unequivocal and have constituted adverse possession. Significantly therefore animus possidendi is mentioned, and held to be significant, only where the material conduct was equivocal.

15. This association between equivocal conduct and intent is maintained in all the later reported UK cases. In Powell v McFarlane (1979) 389 P&CR 452, 476 Slade J put it thus: -

"a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily by itself, betoken an intention on his part to claim the land as his own and exclude the true owner".

Powell was the penultimate case in a line of authority where animus was alluded to. They include Williams Brothers Direct Supply Limited v Raftery [1958] 1 QB 159, Tecbild Limited v Chamberlain [1969] 20 PCR 633 and Wallis's Cayton Bay Holiday Cape Limited v Shell-Mex and BP Limited [1975] QB 94 and the most recently Buckinghamshire County Council v Moran (1988) 86 LGR 473, Hoffman J and [1989] 3 WLR 152, Court of Appeal.

16. To my mind these cases had the following elements in common: -

(1) They all concern dispossession alleged by a "person who originally entered ... as a trespasser" per Slade J. None concern persons originally let into exclusive possession as tenants or licensees claiming to be in adverse possession after the termination of the tenancy or licence.

(2) In none before Buckinghamshire County Council v Moran was the claimant able to show complete enclosure of the land by him, or conduct amounting to physically exclusive possession.

(3) All arose in a rural or semi rural context, more likely to occur in England than Hong Kong, and turned on conduct which fell short both of exclusive possession and full scale farming operations like ploughing and cropping. The claimants relied upon acts of user like growing, grazing, hay making and recreation; acts normally associated with ownership but marginally sufficient to constitute dispossession.

(4) Only in Buckinghamshire Council v Moran was the claimant able to show physically exclusive possession. It was this, the presence of the gate and padlock, which were decisive in that they objectively amounted to "a final unequivocal demonstration of Mr Moran's intention to possess the land" per Slade LJ at p 168.

17. It is too late to return to the simplicity of the last century and confine the relevance of animus possidendi to cases of equivocal conduct. But this in my judgment is still the only significant context when it is remembered that -

(1) The test of intention is objective, Buckinghamshire County Council v Moran.

(2) "What is required ... is not an intention to own or even an intention to acquire ownership, but an intention to possess" per Hoffman J in Moran, approved by Slade LJ at p 168.

(3) The intent need not be hostile or aimed at the owner, per Lord Diplock in Ocean Estates Limited v Pinder [1969] 2 AC 19 p 24;

it seems to we that such intent is necessarily establishes by unequivocal evidence of exclusive physical possession.

Or in the language of Anderson J in Beaudoin v Aubin 125 DLR (3rd) 277 at p 267: -

"In this case the possession is certain and unequivocal, and the animus possidendi is to be presumed".

18. In this case also the plaintiff's possession after 1964 was certain and unequivocal, and attributable to no continuing licence. The mental reservations sought to be attributed to her as a hypothetical honest or reasonable licensee, are no more effective to negative animus possidendi than were the mental reservations admitted by the possessory claimants in both Ocean Estates Limited v Pincer and Buckinghamshire Country Council v Moran. I would accordingly conclude that the plaintiff established the possessory title she claimed.

19. Therefore, I would allow this appeal; grant to the plaintiff the declarations she seeks; dismiss the defendant's counterclaim; and make an order nisi that the plaintiff have the costs of this appeal and the costs of action below.

Fuad V-P :

20. I agree that the appeal should be allowed for the reasons given by my Lord and with the order he proposes.

Macdougall, JA :

21. I also agree.

Representation:

D Chang, QC, Miss J Pinto (M/s Tai, Ho & Chan) for Appellant/Plaintiff

R Tang, QC, Louis Chan (M/s Tang & Co) for Respondent/Defendant