Chong Hing Kam v. Ching Yau Keung t/a Jan Cheong Sing Hardware

CACV000098/1988

Courts practice and procedure - possession order under rule 64 of the District Court Civil Procedure (General) Rules [similar in terms to RSC 0.113] - whether summary proceedings for possession appropriate in view of the disputed issues of fact and law involved.

IN THE COURT OF APPEAL

BETWEEN

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Coram: Silke, V.-P., Fuad, V.-P. & Penlington, J.A.

Date of Hearing: 7th October 1988

Date  of Judgment: 7th October 1988

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J U D G M E N T

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Fuad, V.-P.:

1. This is an appeal by the Defendant against an order by Judge Henry Wong dated 13 July 1988 in summary proceedings instituted by the Plaintiff for the possession of land under rule 64 of the District Court Civil Procedure (General) Rules ("the District Court Rules").

2. The Plaintiff took out his originating summons on 20 June 1988 to recover possession of part of the front portion of the mezzanine floor of No.16 Gillies Avenue, Kowloon. The summons was supported by an affirmation made by the Plaintiff saying that he was the registered owner of the property and that after he had bought it (the exhibited copy of the assignment was dated 26 February 1987) he discovered that the Defendant was in possession of that part of his property which was coloured in pink on the plan annexed to his summons, without his consent or licence. He exhibited two letters before action which the Defendant had ignored.

3. The Defendant filed an affirmation in reply saying that he was the sole proprietor of Jan Cheong Sing Hardware, and the registered owner and occupier of the front portion of the ground floor of No.16 Gillies Avenue, Kowloon. He admitted that the Plaintiff was entitled to possession of the property described in his summons, but denied occupying any part of it. He explained that his late father had bought the property on the ground floor in 1957 and exhibited a copy of the registered memorial of the assignment. His father had always used the property for his hardware business. When his father died in 1969 he had taken over the business and had become the registered owner of the property. Exhibited to his affirmation was a copy of the relevant deed of assent.

4. The Defendant by his affirmation then asserts that when his father took possession of the front portion of the ground floor, the part of the mezzanine loor later acquired by the Plaintiff did not extend right up to the pavement of Gillies Avenue, and this was the present position. When decorating his premises in readiness for his business, his father had built a cockloft in the space above his property. The cockloft, which was still there, had been in continuous use in the hardware business ever since it was constructed in 1957.

5. At the hearing, Counsel for the Plaintiff contended that the Defendant had not disputed the Plaintiff's ownership and invited the judge to compare the floor plans exhibited to the affirmations which indicated that the areas of the ground and mezzanine floors of the premises owned by the respective parties were the same. This, he submitted, showed that the Defendant's assertions were not supported by the plans, and suggested that the Defendant had not appreciated that he was occupying the Plaintiff's property. Further, the description of the property owned by the parties respectively, in the assignments exhibited to their affirmations was the same.

6. In reply, Counsel for the Defendant submitted that there was no evidence to support the Plaintiff's claim that his mezzanine floor was the same in size as the Defendant's ground floor. The Plaintiff's predecessor in might have purported to assign more than he had got. Moreover, there had been no answer to the assertion by the Defendant that his father and he had been in possession of the disputed area for over 30 years, which raised a limitation issue.

7. Counsel for the Plaintiff then submitted that if the Defendant relied upon limitation, it was for him to raise the issue and prove it. There was no evidence, he said, to show that the Defendant had been in continuous occupation of the disputed premises for over 30 years. He had not discharged the burden of proof. The Defendant could not on the one hand admit the Plaintiff's title to ownership of the suit premises and on the other allege continuous occupation of his land

8. The judge's "Ruling" is quite short and I will read it in full:

"    In para. 2 of his affirmation, Defendant admits that 'Plaintiff is entitled to possession of all that l equal undivided part or share of and in section H of subsection 9 of section A of Hung Hom Marine Lot No. 1 also known as front portion of mezzanine floor of No. 16 Girlies Avenue.' He also produces the title deeds of his own property which is the ground floor of that same address. A comparison of the two assignments shows that the premises owned by the parties are identical except that Plaintiff's property is, so to speak, above that of Defendant. In other words they are of the same size, have the same area and can be said that Plaintiff's land lies on top of Defendant's land.

There is a host of reasons for the present situation to arise, but whatever they may be the fact remains, and I so find, that Defendant has clearly trespassed upon or has wrongfully occupied Plaintiff's land.

As regards the allegation by Defendant's counsel that Defendant has had the use of the disputed land for over 30 years and that Plaintiff is thereby debarred from claiming the property by virtue of the limitation period, I hold the view that that allegation cannot stand because it has not been pleaded and there is no evidence in support thereof.

In the upshot, it is my judgment that the defence must fail and that Plaintiff should succeed in his claim."

9. I am bound to say that I am surprised that those advising the parties felt that it would be possible for the judge properly to decide the dispute which divides them by the summary procedure prescribed by rule 64 of the District Court Rules. It seems that everyone concerned failed to appreciate what kind of case rule 64 is designed to accommodate. That rule and RSC 0.113 are in virtually identical terms, and in their commentary on 0.113 the learned editors of the White Book say this at the end of para. 113/1-8/1 (pp.1470-1):

"On the other hand, like the default and summary procedures under 0.13 and 0.14, this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto."

10. Here, the affirmations revealed that difficult issues of fact and law had to be tried, including any title the Defendant might have acquired by adverse possession if it was' established that he was encroaching upon any part of the Plaintiff's property. Proper pleadings were necessary to define the issues and oral evidence to resolve them. In my judgment, the procedure adopted was wholly inappropriate and the judge's order for possession in favour of the Plaintiff cannot stand. I would therefore allow the appeal and set the order aside.

11. The District Court Rules do not contain provisions on the lines of RSC 0.28 which applies to all causes in the High Court begun by originating summons. However, 0.28 has application to proceedings in the District Court by virtue of rule 9 of the District Court Rules, "with such modifications as are necessary for that purpose". Under 0.28, as applied to the District Court, I would order the proceedings to continue as if the cause had been begun by writ. The affirmations are clearly not suitable in form or content to stand as pleadings. I would, therefore, direct that the Plaintiff file particulars of his claim in accordance with rule 12 of the District Court Rules within 14 days from today and that further steps in the action be taken in accordance with the Rules in the usual way. I would mention that it is common ground that the District Court has jurisdiction to hear and determine the action under s.36(b) of the District Court Ordinance.

12. It would, I think, be in accordance with good practice if a plaintiff who institutes, proceedings under rule 64 of the District Court Rules were to aver in his supporting affidavit that the District Court has jurisdiction, stating the rateable value or the annual value of his hereditament for the purposes of s.35 or s.36 of the District Court Ordinance.

Silke, V.-P.:

13. I agree with my Lord's conclusions his reasoning therefor and with the order he proposes.

Penlington, J.A.:

14. I also agree with the order as proposed by my Lord Fuad.

Representation:

Mr. Benjamin Chain (So & Karbhari) for the Appellant/Defendant.

Mr. Kenneth C.L. Chan (Augustine C.Y. Tong & Co.) for the Respondent/Plaintiff.