Man Kam Tong v. Man Lin Tai

Case No.HCA 5478/1981[1984] HKLR 181

Court

High Court CFI

Date29 Feb 1984

Judge—

Case Document

100%Judiciary

HCA005478/1981

No. 5478 of 1981

Claim by apparent title holder of rural lot to possession of land in occupation of defendant. Defendant held paper title to house lots, but no means of identifying these house lots on the ground. Held:

(1)	After protracted factual inquiry that house lots in fact comprised the area in defendant's occupation.
(2)	Defendant had good possessory title. Leigh v. Jack (1879) 5 Ex.D. 264, Williams Brothers v. Raftery Limited (1958) 1 Q.B. 159 and Treloar v. Nute (1977) 1 All E.R. 230 followed: Dicta of Lord Denning M.R. in Wallis's Clayton Bay Holiday Camp Ltd. v. Shell-Mex and B.P. Ltd. (1975) Q.B. 94 and Gray v. Wykeham-Martin (unreported) (1977) not followed.

Observations on inadequacy of present system of registration of titles and suggestions for its improvement.

No. 5478 of 1981

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

________

BETWEEN

MAN KAM TONG

Plaintiff

AND

MAN LIN TAI

Defendant

________

Coram: The Hon. Mr. Justice Hunter.

Dates of Hearing: 26, 27, 30, 31 January., 1, 6 to 10 February 1984

Date of Delivery: 29 February 1984

___________

JUDGMENT

___________

1. This case has underlined a sad and serious deficiency in the registration of titles in the New Territories. The plaintiff appears to possess a clear and unqualified paper title to Lot 3954 in Demarcation District (D.D.) 104. The defendant likewise appears to possess a clear unqualified paper title to Pok Wai Village House Lots 114, 125, 143 and 144 (the house lots). The plaintiff is able to point to the Land Office Map of D.D. 104 as showing the original boundaries of Lot 3954, and by this action claims possession of that area. The problem is that this area now includes part of the house occupied by the defendant and now known as 91A Pok Wai Village.

2. The site of this house is what the defendant thought she bought in 1971 when she took a transfer of the House Lots. It is certainly the property she has considerably improved and occupied ever since. But her paper title proves on investigation to be illusory. There is no Pok Wai Village House Lot map, nothing to give location and reality to the House Lots she owns. If, as I think, such a House Lot Map must have been created by the orginal survey team in 1905, it has long since disappeared. It may well have been a casualty of the war. An attempt to reconstruct it during the 1960s was abandoned; apparently because it was thought to be too complex or perhaps creative of disputes.

3. Be that as it may, the present position as revealed in this case, where house lots conflict with rural lots, could hardly be more unsatisfactory. A system of land registration is intended to be simple, clear and certain. It is intended to ease conveyancing. Especially in the New Territories, where I understand professional assistance to be the exception rather than the rule, it is intended to be operated by the parties themselves. It was so operated here. But this system has form and no substance. It gives a deceptive appearance of certainty without the essential reality. It "sold" to the defendant not in defined area of land, but the strain and expense of a law suit. It has taken ten days detailed evidence, much of it from the elders of the village and dependent upon mature memories, to determine what the relationship on the ground is between Lot 3954 and the house lots. As landlord and as keeper of the register the Crown can surely do better than this: it can hardly do worse.

4. Pok Wai Village was originally surveyed in 1905 by surveyors from India. Their handiwork shows:

(1)		That the area they called Lot 3954 lay to the west of the lane leading to the village, and was of approximately the shape and the dimensions shown on the original map D.D. 104, which they drew. I say approximately, because it was emphasised repeatedly to me in evidence that this map was drawn for fiscal purposes. Drawn as it was to a scale of 1 : 3960 it could not pretend to be, and was not intended to be, a precise statement of boundaries of small sized rural lots; and is still less of town lots.
(2)		The original field area statement describes Lot 3954 as being 0.01 of an acre waste, and 0.02 of an acre house. An identical description is given of the adjoining lot to the north, 3953.
(3)		The original schedule of lessees shows the tenant of "house and courtyard" of Lot 3954 to be Man Cheung Hing. No name is entered as tenant against 3953. Ditto marks appear to repeat the name above - the tenant of 3952. It has been impossible to listen to the evidence in this case without doubting the accuracy of this entry, and without wondering whether Man Cheung Hing was not in fact the both 3953 and 3954.
(4)		The original schedule of lessees shows Man Cheung Hing as being the sole tenant of all the house lots. Of these, 114 is described as "House"; the other three as "latrines".
(5)		The lots in question were thus all created in the original survey, but the surviving documentation from that gives no indication as to the location of the House Lots and how they related to Lots 3953 and 3954.

Titles

5. The titles of both parties therefore stem from Man Cheung Hing who was the plaintiff's grandfather. He died in 1911, and all the lots then passed to his two surviving sons Man Tim Yau: and Man Muk Tim who was the plaintiff's father and whom I shall call "father". Man Tim Yau died in 1918, and his share passed to his two sons Man To Lam.(Man T.L.) and Man Chuk Kan (Man C.K.). The holding of the senior surviving members of this branch of the Man family, namely father, Man T.L. and Man C.K. then comprised:

(1)		A number of rural lots which included 3954 but not 3953: and
(2)		A total of 6 town lots. Four of these were the material house lots. The two additional lots namely 87 and 88 were situate in Pok Wai Village itself.

6. The split came in 1934. On 13th October 1934 father, Man T.L and Man C.K. mortgaged the four house lots to one Mok Ping. The Defendant's title stems from this transaction. The succeeding steps were:-

(1)		8th June 1937 a transfer of the mortgaged property - the Town Lots - from the mortgagors to Mok Ping "in settlement of the mortgage debt". The memorial bears the words: "By order of the court".
(2)		3rd March 1950, sale Mok Ping to Chung Kiu.
(3)		23rd March 1954 sale Chung Kiu to Sin Shu Hing.
(4)		29th October 1971 sale Sin Shu Hing to defendant.

7. Lot 3954 remained in the Man family. Between about 1942 and 1948 father, Man T.L., Man C.K. and the plaintiff's mother and two elder brothers all died. Only the plaintiff, and his elder brother's wife, Madam Tang survived. There was considerable delay in making the necessary entries in the Register. On 20th November 1957 the plaintiff is shown as succeeding to the one-third shares in Lot 3954 of father and Man T.L. On 14th April 1981 he has shown as succeeding to the one-third share of Man C.K., as to 50% of this as trustee for his children. The nature of these transfers was such that they gave no occasion for any one to consider precise boundaries.

8. The plaintiff now claims possession of Lot 3954. To this the defendant raises two defences namely: -

(1)		The site of her present house she says is identical to the total site transferred to Mok Ping in 1937, so that the plaintiff's only claim is to the unassigned rump of the family holding, and this does not lie against her.
(2)		Since at least 1954 she and her predecessor in title Sin Shu Hing have been in physical possession of the site of her present property. Accordingly she has a good possessory title because either the plaintiff discontinued his possession or was dispossessed over twenty years before action brought.

1. Paper Titles

9. On the original D.D. 104 map, the presence of, houses in Pok Wai Village was shown conventionally by rectangular squares with diagonal hatching. These markings from their nature and location plainly relate to blocks of houses and to housing sites, not to individual houses. At some time similar hatched blocks appeared on D.D. 104 super-imposed on rural lots. When and by whom these entries were made, and with what accuracy they were surveyed is unknown. That they too were indicative of housing sites, can reasonably be inferred from the similarily in style to the village entries, and to the fact that they are to be found where old houses exist.

10. The effect of these entries is well illustrated by what has happened on a site situated immediately across the road way from the disputed site. On the original D.D. 104 there is here shown a large lot numbered 3951. Upon this there has been super-imposed a hatched rectangle. Within the area of this rectangle exist at least three house lots, numbers 90, 89, 126. From the evidence I have heard from their occupants and the documents of title produced it is apparent:-

(1)		That these houses are referred to and described in transfer documents by house lot numbers only and without reference to lot number 3951.
(2)		That these are houses of some antiquity.
(3)		That Lot No. 3951 is still referred to and described in transfer documents by this number alone, without any qualification, limitation or reference to these house lots.

The conclusion seems to be inescapable that in or after 1905 these house lots were carved out of the totality of Lot 3951. This was no doubt sensible and convenient. It may well be that their existence and approximate boundaries were then recorded on some Town Lot Map. What is remarkable is that no corresponding qualification seems to have been recorded on the title to Lot 3951, which still carries the appearance of extending to the whole of the lot as originally drawn.

11. At some unknown date a hatched square appeared on D.D. 104, super-imposed in the areas of Lots 3953 and 3954. It is also on the 1970 tracing of the original map. Since the war a complete aerial survey has been undertaken, supplemented by work on the ground. This was the basis first, of C-91-NE-D (the 1961 map) drawn in 1961 to the imperial scale of 1 : 1200; and secondly of 2-SE-21-D (the 1978 map) drawn in 1978 to a metric scale of 1 : 1000. These, and two aerial photographs taken in 1949 and 1967 respectively are all reliable evidence as to what existed on the ground at these dates. Surveyors on both sides have collated the information from these sources. They have enlarged both to a scale of 1 : 200. It is noteworthy that this involved an enlargement of the original D.D. 104 map of nearly 20 times. They have collated the apparent boundaries derived from these sources with the existing structure. The most useful drawings are exhibits D5, D6 and D7. These show that both the hatched area on D.D. 104 and the defendant's present site cover a substantial part of the original Lots 3953 and 3954.

12. The presence of this hatched square raises a strong suspicion that house lots were at one time carved out of the area of Lots 3953 and 3954. But it tells us nothing about the identities of these lots: and little about their precise boundaries. The problem is to identify on the ground the area of land in fact conveyed away by the Man family in 1937. For this purpose these documents have to be considered in the light of the history of the site i.e. the approximate area of Lots 3953 and 3954, as given in evidence.

13. As to this, my findings of fact upon the evidence which I have heard are as follows:

(1)

In the 1930s there were three habitable dwellings on the site. At the eastern end, fronting the path, were two adjoining houses. Their eastern walls were each 12 feet long, making a combined length of 24 feet. The return walls along the north and south sides of the block were each 32 feet long. These walls remain standing today in their original locations. They were then some 12 or 13 feet high. They are now somewhat higher. This pair of houses was built of green bricks and had a tiled roof. They were occupied by Man T.L. and Man C.K. respectively.

(2)

Behind this pair and on the north part of the site stood the third habitable dwelling. This was lower, smaller, and built of mud bricks. This was the plaintiff's parents home and where he was born. To the south of this house lay the site, and part of ruins, of a fourth mud brick house.

(3)

The house lots were knocked down to Mok Ping in satisfaction of the mortgage debt, and in the absence of any competitive bids, at an auction held by Order of the Court at the District Offices on 8th June 1937. This auction was attended by father and by the witness Fung Shum Ki. Despite his 74 years, I found Mr. Fung to be a very clear and convincing witness. His account of this auction, and of his contemporary conversations with both father and the plaintiff's mother left no room for doubt that these three habitable houses were part of the subject matter of this auction. Indeed there was on the evidence no other available subject matter.

(4)

The Man family was allowed to remain in possession of these houses until about 1947 when first the plaintiff and very shortly thereafter Madam Tang left them for good. The plaintiff himself emphasised his youth and inexperience at this time. Save for a passing curiousity on his very occasional visits between then and his departure for the United Kingdom in 1957, the plaintiff took no interest in the houses, and certainly made no arrangements for anyone to care for them. But for an event in 1979 I very much doubt whether any interest in this property would have been revived.

(5)

Madam Tang moved into the village; first into temporary accommodation, and finally into a house built for her by the plaintiff on the two retained village house lots No. 87 and 88. She did nothing towards looking after the house, and did not inform or protest to the plaintiff when third parties took possession. This is totally understandable had she known of the position of Mok Ping: extraordinary if she still thought the houses to be part of the Man family properties. She did not give evidence.

(6)

Between 1947 and the early 1950s two families, the Yus and the Poons, occupied the houses as their home. I infer that they did so as tenants of Mok Ping or possibly Chung Kiu. The state of repair was then such that a falling tile killed a young Poon child.

(7)

The 1949 photograph shows the site to be the location of two buildings: in the front the original pair of houses and behind this the single smaller house.

(8)

At the time of the sale in 1950 by Mok Ping to Chung Kiu special precautions were taken by District Office. It is reasonable to infer that these were prompted by the post-war absence of any Pok Wai House Lot Map. A surveyor was sent to measure the lots, and his measurements are bound up with the memorial on sale. They are helpful and assisted me to reach the dimensions findings in paragraph 1. There is also an instructive similarity between the dimensions given for the site of the demolished property and that of the structure now standing in the south-western segment of the site. But it would have been so much more helpful had the surveyor recorded on this document, by description, drawing or otherwise, the exact location of the site he was measuring. This I have had to piece together from all the evidence. My conclusion is that what he measured and called house lots 143 and 144 were the pair of houses formerly occupied by Man T.L. and Man C.L.: that what he measured and called Lot 125 was the separate house then standing behind them; and that what he measured and called Lot 114 lay to the south of this house.

(9)

Save that the Poons could have been his tenants, and that he may have allowed some members of his family to occupy, Chung Kiu seems to have made little use of the property.

(10)

On 26th March 1954 Sin Shu Hing bought as part of a joint venture with Wong Kwok Chor for the rearing of quail on this site. He carried out important works of repair and alteration. In particular

(1)	He built a low structure with a sloping roof, intended for the rearing of quail, which extended from the rear of the front block to the rear of the site. He incorporated in this the old small house and formed the roof from tiles from that and from part of the roof of the front block.
(2)	He repaired the roof of the front block in part with tiles and in part with asbestos sheets.
(3)	He erected a post and wire fence on what seemed to him to be the natural southern boundary of the site. There is an appreciable difference in levels between the site and the cultivated area which is Lot 3950. When Mr. Sin described this difference in height in 1954 and the drop on the inner side of this apparent natural boundary, I am satisfied that he was describing the bun, or raised dividing path, which originally ran between Lots 3954 and 3950. I think he erected his fence on the true natural boundary between these lots. Its presence and location is confirmed by the 1961 map.
(4)	He erected a front gate which I find he caused to be hung upon the front pillars which now exist.
(5)	Later he erected a length of wall on the western boundary of the property in line with the western end wall of the new low level structure.

(11)		The 1967 photograph clearly shows these works. It also shows the site then to be indistinguishable in apparent shape, size and location from the site of the defendant's home shown on D5.
(12)		Within two years the quail venture failed. Sin Shu Hing then allowed Wong Kwok Chor to use the site, and in particular the low level structure, for the rearing of pigs. This user seems to have subsisted to about 1960. After a pause it was followed by the granting of a tenancy to Wong Kwok Leung in 1962 or 1963. He eventually vacated leaving rent owing.
(13)		Sin Shu Hing then had no immediate use of the property. His commercial venture had failed and his tenancy experience was unsatisfactory. He was not prepared to spend more money on repairs, and regarded the premises as having more value as a site than as a house. He was prepared to wait for the buyer who was willing to repair or reconstruct. In the mean time he wanted someone to keep an eye on the place for him and he found Sit Tin Fat.
(14)		Sin Shu Hing and Sit Tin Fat came to an informal arrangement that so long as Sit kept an eye on the place and kept the gate secured with a padlock and chain, Sit could make what use he wished, of the premises. To Sin's knowledge, Sit used the premises as a store and as a kind of gaming-house. Without Sin's knowledge Sit let a man named Chau into possession. Chau installed knitting machinery and for about a year ran a knitting factory. He also repaired the roof. During this time Sit operated his store at the front of the property. Sit is now dead, and I am not prepared to infer that in his dealings with Chau he acted other than in what he thought was the best interests of Sin with a view, for example, of getting some necessary repairs done to the roof. Still less am I prepared to infer that either Sit or Chau had any intention at any time of claiming the premises for themselves, or thought that they were acting otherwise than with the consent or approval of Mr. Sin. Generally during this period, Sit kept the premises secure, as the defendant found when she first saw them. It was he who admitted Sin and the defendant when she first obtained access to the premises.
(15)		When the defendant bought on 29th October 1971 the premises were in serious dis-repair. The defendant spent considerable sums upon repair and reconstruction. She built up but not out. She replaced Sin's southern boundary fence in the same location. She erected the fence between the house and the path but only on the line of an existing dwarf wall. She repaired Sin's low level structure, and put in an extra storey on about the site of the old detached house. She erected further accommodation for her pigs on the site of the old demolished house, incorporating the old rear wall erected by Sin and seen in photograph no. 10. She confirmed but did not extend the boundaries defined by Sin.
(16)		The plaintiff returned for the first time to Hong Kong from England in 1970. I have no doubt that on his visit to the village he passed the site; but such was the inaccuracy of his description that I am sure he paid no attention to it.
(17)		The plaintiff told me that in 1979 he heard from Madam Tang that quite a considerable sum of money was being claimed from him by the Crown for rent in respect of his inherited holdings, including Lot 3954. Although none of the relevant documents was produced, I have no doubt that some such claim was made. If the Crown's records as landlord were either the same as or no better than those at the Land Office the claim is understandable. It revived the plaintiff's interest in the land and lead him to discover the defendant's occupancy. I am sure that it was the combination of this claim and the plaintiff's apparent unqualified paper title which led to this action.

14. It is impossible on the available evidence to write the history of these house lots and of their relationship with Lots 3954 and 3953. It is sufficient for the purposes of this action to find, as I do, that in 1937 the area of the four house lots conveyed and intended to be conveyed by the sale of 8th June 1937 was identical to the site originally defined by Sin Shu Hing and the site now occupied by the defendant. It follows that whatever interest the plaintiff retains under his title to Lot 3954, this interest gives him no right to possession of any of the land now in the plaintiffs occupation, and his claim for possession against her must fail.

2. Possessory Title

15. As this matter was fully argued and the case may go further it is right that I should deal with it.

16. At the outset I shall consider two particular points taken by the plaintiff. The first was that in any event there was no proof of continuous adverse possession because Sin Shu Hing was dispossessed by Sit and Chau as a result of the knitting factory incident. This fails on my findings of fact. Sit always remained Sin's custodian: there was no dispossession; and no animus possidendi as owner in either man.

17. The second point is more substantial, and is that the possession of Sin and of the defendant should not be regarded as adverse within the meaning of the Ordinance. The plaintiff, it is said, in and after 1947 had no immediate use for the property because he could not afford to repair it. This situation continued until well into the limitation period. The land was thus akin to development land and the possession of Sin and the defendant should be treated as being pursuant to a licence from the plaintiff. I was invited to follow the view expressed allegedly to this effect by Lord Denning M.R. in Wallis's Cayton Bay Holiday Camp Ltd. v. Shell-Mex and B.P. Ltd. 1975 Q.B. 94 because no corrective legislation existed in Hong Kong similar to section 15(6) and paragraph 8(4) of schedule 1 of the U.K. Limitation Act 1980.

18. This problem arises out of a line of authority in England dealing with the relevance of the paper title holder's intentions to a claim to a possessory title. It goes back at least to a decision of the Court of Appeal in Leigh v. Jack (1879) 5 Ex.D 264 where Bramwell L.J. said:

"In order to defeat a title by dispossessing the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purposes for which he intended to use it."

This principle was approved and followed by the Court of Appeal in Williams Brothers Direct Supply Stores Ltd. v. Raftery Ltd. (1958) 1 Q.B. 159. There the paper title holder's plans for development had been frustrated first by the war and then by a refusal of planning permission. Acts of user of the soil by the claimant by cultivation and the keeping of grey-hounds, with no attempt physically to exclude the true owner, were held not to amount to dispossession. It is noteworthy that almost by definition this principle is dependent upon proof of two factual situations namely:-

(1)		A proven intention to use the land only for some particular purpose; and
(2)		User by the claimant which is in fact not inconsistent with such purpose.

19. It does not apply unless both are proved. For example, manifest exclusive physical possession by fencing or otherwise is likely to be held inconsistent with any future purpose. These cases were again cited with approval by the Court of Appeal in Tecbild Ltd. v. Chamberland (1969) 20 P.CR 633.

20. The matter came before the Court of Appeal again in Wallis's case. It was another case of frustrated development. The petrol company could not erect its garage until the road went in. In the meantime the claimant farmed the surface. By a majority the Court found against the claimant. Lord Denning first summarised the effect of he authorities along traditional lines p.103C. He emphasised that the Act required adverse possession, and that acts of user not inconsistent with future intentions did not constitute dispossession. But unfortunately, as were the greatest respect I feel bound to say, he went on to suggest that the reason behind this rule was some imputed licence. Ormrod L.J. also made reference to a licence in a passage starting at p.116G. But as I read his judgment this was in a very different way and for a very different purpose. He also formulated the test on traditional lines. His reference to a licence was his means of testing the validity of his factual conclusion under my above head (2), that the claimant's user was in fact trivial and not inconsistent with future development. I cannot detect in this judgment any attempt to qualify or alter the formulation of principle or to engraft any licence requirement onto it.

21. Next came Treloar v. Nute (1977) 1 All E.R. 230 in the Court of Appeal. In giving the judgment of the Court Sir John Pennycuick referred again to this rule in traditional terms describing it as "one special type of case". He cited the traditional part of Lord Denning's re-statement in Wallis's case and added words to the effect that he did not think Lord Denning intended to extend or enlarge the principle.

22. If the matter had stopped there one would have had an unbroken line of authority extending over five decisions of the Court of Appeal, with obiter additional observations from Lord Denning. But the matter came before the Court of Appeal again in Gray v. Wykeham-Martin (unreported) Court of Appeal (Civil Division) transcript No. 10A of 1977. This case was referred to by Slade J. in Powell v. McFarlane and Another (1971) 39 P.CR. 452. I know no more about this unreported decision than what we are told by Slade J. From this it appears that in Gray the Court of Appeal found the Wallis and Treloar decisions to conflict; disapproved Treloar as being too narrow; and approved a view of Wallis which treated Ormrod L.J.'s judgment as dependent upon a hypothetical licence. Not surprisingly perhaps therefore, Slade J. felt bound to conclude that the need for a licence was part of the ratio of Wallis's case. Upon the advice of the Law Reform Committee (Cmnd. 6923) Parliament intervened apparently with the express object of restoring the authority of Sir John Pennycuick's judgment in Treloar.

23. In my judgment we can reach the same conclusion by a shorter route and without legislative assistance. We are free to choose. For my part I would have no hesitation, if a conflict really exists, in preferring Treloar and the earlier authorities to Wallis's and Gray. If I should happen to be right upon my reading of Ormrod L.J.'s judgment in Wallis's, the choice between the earlier authorities and Gray is even simpler.

24. Directing myself in this way the issue of possessory title is simple on my findings of fact. The plaintiff gave no evidence suggesting any special or peculiar use for this property. It is, and always was, when it was in repair, residential. When it fell out of repair it was used for animals. Both classes of user are quite in consistent with any potential contemplated future user by the plaintiff, and having regard to the enclosed nature of the site to any user by the plaintiff at all. The possession in succession of Sin and of the defendant was therefore of a quality sufficient to be adverse within the meaning of the Ordinance.

25. Secondly, I would if necessary have concluded that the plaintiff also discontinued his possession. Again in the words of Bramwell L.J. in Leigh v. Jack "the smallest act" is sufficient to negative discontinuance. It seems to me here that the plaintiff did not even do that.

26. It follows that the defendant's defence of possessory title also succeeds. I will hear counsel further upon the consequences, but my present view is that it would not right to grant the defendant any of the declarations sought in the counter-claim. The owner of Lot 3953 is not before the Court. In his absence I cannot grant any declaration which apparently affects his Lot, or purports to determine the true boundary between Lots 3953 and 3954. My present view is that my conclusion under this head leads to no more than the dismissal of the plaintiffs claim.

27. A final word about the future. No one could have listened to the evidence in this case, and watched the concerned faces of the litigants, without being appalled by the hollowness of the documents of title and the cruel mockery which is the present system. There was a hint in the evidence that the problem has simply been ignored as too difficult to solve. I must reject that as incredible and assume that the search for ways and means to improve the system continues. I would like therefore to add two things, which I hope may assist this process.

28. First I recognise that the risk of appearing to be involved in the determination or provocation of disputes may have been a deterrent. But this could I think be met by a policy of recording what is clear and noting the ambiguous. It is difficult to see what objection there could have been in the 1960s, or now, to the publication of a reconstructed Town Lot Map giving numbers to all lots where inquiry on the ground revealed defined undisputed boundaries and matching paper titles. In every other case suitably worded warnings or caveats could have been noted on titles where appropriate. This would have avoided the false sense of security the present system gives. In particular it would warn newcomers e.g. potential buyers or mortgagees of the unreliability of the paper and the need to take special precautions.

29. Secondly it may be helpful to record the specific steps or precautions which could materially have assisted the parties here. They are:-

(1)		The placing of some caveat or qualification on the titles to both Lots 3954 and 3953 when the hatched square was first super-imposed in a position which affected both. This could have caused the Crown to think twice before demanding rent for the whole of Lot 3954 in 1979; and the plaintiff to think twice before issuing his writ.
(2)		The practice in 1950 of recording the measurements of the sites of the town lots, and fastening them to the memorial was most useful, but incomplete. The measurements were not related to one or more of the fixed points on the D.D. 104 survey map: nor was the practice followed in 1954 or 1971. If in the future these two steps, namely the recording of site measurements and of their relationship to fixed points, are taken on the transfer of any town lots, the precise location of which is revealed as doubtful under the policy above suggested, the problem might be put on the road to solution.

(D.S. Hunter)
Judge of the High Court

Representation:

Thomas Lai instructed by M/s Rowdget W. Young & Co. for Plaintiff.

Paul Wei instructed by M/s Lawrence T.S. Ong & Co. for Defendant.

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