CHAN SAN v. HANS LI, the person appointed to represent the estate of KAM SHUI MAN, the Deceased AND OTHERS

CACV 189/2019

[2020] HKCA 166

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 189 OF 2019

(ON APPEAL FROM HCA 840/2012)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  The Plaintiff in this action sought declaration on adverse possession of the land in Yuen Long known as part of Lot No 1212 RP in DD 118 (“Area B”) and the northern part of Lot No 1215 in DD 118 (“Area A”). The two areas are collectively referred to as the Land. Those areas were identified in a plan attached to the judgment below as appendix 2. The 1^st Defendant was appointed to represent the estate of the deceased registered owner of such land.

2.  On 22 March 2019, Wilson Chan J (“the Judge”) found that adverse possession was established by the Plaintiff and granted declaratory relief in his favour.  The 1^st Defendant appealed against such conclusion. 

3.  The nature of the use and occupation of Area A and Area B was quite different.  The two areas were separated from each other by Lot No 1213 in DD 118.  Originally, there was also a claim for adverse possession by the Plaintiff against the owners of Lot No 1213. That claim was discontinued in November 2014.  It seems that there was a settlement under which the daughter of the Plaintiff was assigned a portion of Lot No 1213 which is identified as Section C of Lot No 1213 on 20 October 2014.

4.  The Plaintiff’s case on the use and occupation of Area A (including the use by his father and grand-uncle) was set out by the Judge at [6] to [11] of the judgment.  Previously, Area A was used by the Plaintiff’s grand-uncle and father for poultry farming.  Since 1972[1] after he had come to Hong Kong, it had been used by the Plaintiff for residence and farming, storage, honey bee farming, planting fruit trees and vegetables and raising poultry.  In the course of time, houses were built and torn down and rebuilt.  The Plaintiff, his then wife and 2 daughters and son lived there.  At one stage, a relative surnamed Lo also lived there for a while.  

5.  As for Area B, the Judge described the Plaintiff’s case on its use and occupation at [12] as follows:

“ In the 1990s, the plaintiff made [Area A] more accessible by constructing a road connecting Tai Shu Ha Road West to Area B. Further, he levelled the ground and pulled down trees on Area A and Lot 1213 so that the road passed through to Lot 1213 and eventually to Area A.”

6.  The Judge largely accepted the Plaintiff’s case regarding possession at least from 1997 and expressed his findings at [35] and [37] on Area A:

“ 35.  Taking this together with the first to third points set out above, I agree with the plaintiff that, at minimum, there is sufficient evidence to find that the plaintiff was the squatter, and his adverse possession of Area A should begin to run in 1997, more than 12 years before January 2014. 

…

37.  In respect of the areas outside the four structures (as residence or his home), I agree that by factual possession of the structures, the plaintiff had, at minimum, factually possessed Area A, if not the whole of Lot 1213 and Area B.  Again, as noted above, the experts agree that starting in 1997, the Yellow, Green, Blue and Pink Structures were consistent in terms of position, shape, size and orientation since their erections up to present.  It is clear from Appendix 2 that these four structures take up significant portions of Area A (especially the part which fall within the borders of Lot 1215).  Considering the stream to the north and west of the Land, and the footpath (and ditch) to the south, by exclusive possession of the four structures, I agree that the plaintiff must have factual possession of the entire Area A, insofar as the parts which fall within Lot 1215.”

7.  Regarding Area B, he found that in the 1990’s the Plaintiff cleared the land and constructed a road there to provide access to Tai Shu Ha Road West at [30]:

“ …I agree that considering the inherent probabilities of the evidence as a whole, this road was opened up by the plaintiff for his use: namely to transport construction materials for reselling and containers for storage purposes. The defendant’s expert accepts that by 1998 there was evidence of a road connecting Tai Shu Ha Road West to Lot 1215. The plaintiff’s and Mr Cheung’s evidence was that the plaintiff had opened up a road from Tai Shu Ha Road West to Lot 1215 all by himself. The plaintiff’s case is that he gradually opened up this road. Just from comparing the aerial photographs respectively for 1995 and 1997, it is apparent that the plaintiff had begun clearing Area B and Lot 1213 sometime between 1995 to 1997. By 2000 a large section of the road from Lot 1212RP to Lot 1213 had been paved. By 2003, trees on Lot 1213 had been cleared, and by 2005 Lot 1213 was also paved.”

8.  He addressed the question if these acts would be sufficient to constitute adverse possession at [39] to [42]:

“ 39.  Again, the importance of context has been rightly emphasized by the plaintiff when considering the ‘factual possession’ and animus of the plaintiff in respect of the road on Area B.  Given the nature of Area B, the land had realistically been subject to only limited activity of the squatter.  Nonetheless, enclosure and total exclusion are not pre-requisites to adverse possession.  Rather, what is important is how someone in the position of an occupying owner would ordinarily have used the land in question.  The nature of Area B had changed from rural land to predominantly a driveway leading to Lot 1213 and Area A.  I agree with the plaintiff that it is contrary to the nature of a driveway or road to be fenced off.  More so for a relatively remote area in the New Territories for a road which just leads to Lot 1213 and the Land.  To establish adverse possession, the plaintiff can simply rely on the constructed road from Tai Shu Ha Road West leading to Area A.  As noted above, this road only leads to Lot 1213 and Area A.  It did not serve any other land, and its enjoyment was exclusive to the plaintiff. 

40.  In the context of essentially a private driveway leading from Tai Shu Ha Road West to Area A, the question is what would one expect the plaintiff to have done to exclude the world at large?  What is evident and uncontroversial is that the plaintiff had singlehandedly built the road, and slowly improved it: from a dirt road, to a paved road and extended it into Lot 1213 and Area A.  Eventually he even connected the road to the footpath which had existed all along.  In Lot 1213 and Area A, there is photographic evidence of containers and other large items being stored there.

41.  The plaintiff singlehandedly (as confirmed by Mr Cheung) pulled down trees, levelled the land, paved the road, and extended the road into Lot 1213 and Area A.  This is all evident in the aerial photographs taken in 1995, 1998 and 2001.

42.  In the circumstances, even if the plaintiff had little physical control (for example, no barriers to prevent others from entering the road), I agree with the plaintiff’s submission that as a matter of law, there is still factual possession and the requisite intention on the part of the plaintiff regarding Area B.”

9.  In this appeal, Mr Chan SC (who did not appear below) argued 5 grounds of appeal[2]: Grounds 1, 3, 4, 5 and 6 in the Amended Notice of Appeal.  Grounds 1, 3 and 5 are relevant to both Areas A and B.  Ground 4 relates to Area A whilst Ground 5 relates to Area B.

Is it sufficient for the Judge to find continuous adverse possession since at least 1997?

10.  Dealing first with the general grounds, we can dispose of Ground 6 shortly.  Mr Chan submitted that it was unfair for the Judge to change the contest by reference to the possession of the land since 1997 instead of 1976 (as pleaded by the Plaintiff[3]).  The Judge explained his approach at [36] of the judgment:

“ I further agree with the plaintiff that there should be no unfair surprise to the 1^st defendant if it is argued that adverse possession begins to run at 1997 (or even 2000). The general thrust of the pleading is clear that the plaintiff and his family had occupied the Land since about 1976. See: Chang Shun Tak and Another v Leung Sun Fat and Others, Supra, at paragraphs 85 to 93, where such an argument was raised by a defendant and rejected by the court. Whilst the decision in that case was based on its own pleadings, I agree that it is no different in the present case. The greater must include the less.”

11.  Mr Chan argued that the Plaintiff pleaded a specific case based on a particular alleged sequence of historical succession.  Unless the succession is proved, the Plaintiff could not rely solely on the third phase of possession by himself based on the approach of the greater includes the less discussed in Chang Shun Tak v Leung Sun Fat HCA 13809/1997, 18 August 2010.  Counsel also submitted that the 1^st Defendant came to court to defend the specific claim pleaded by the Plaintiff (possession starting from 1976), it seriously prejudiced the 1^st Defendant when judgment is given on the basis of a claim for a shorter 12-year period starting from 1997.

12.  With respect, we cannot see any prejudice to the 1^st Defendant for the Judge to find adverse possession sufficiently established by reference to the use and occupation of the Land since at least 1997.  There had not been any change of contest.  It has always been the Plaintiff’s case that he had been in continuous occupation of Area A from the date of his first entering into possession (irrespective of whether such occupation started in 1972 or 1976).  As for Area B, though there was no distinct plea for commencement of occupation separated from the occupation of Area A, it was specifically pleaded at [8] of the Re-re-re-re-Amended Statement of Claim that the gradual process of construction of a road there took place in 1990s. 

13.  As the Judge observed, the 1^st Defendant did not plead any positive case.  The Amended Defence and Counterclaim of 9 November 2018 only consists of non-admissions and bare denials.  In particular, there is no plea of any interruption of use and occupation of the Land by the Plaintiff. Nor is there any plea that the road at Area B was constructed by a person other than the Plaintiff.

14.  Evidence was led on the full period of use and occupation relied upon by the Plaintiff, including survey maps and aerial photos and expert evidence.  The 1^st Defendant’s trial counsel had every opportunity to challenge such evidence, including the evidence of use and occupation from 1997 to 2014. 

15.  Whilst the requisite limitation period differs depending if dispossession commenced before or after the change of the law in 1991[4], given the respective position adopted by the parties highlighted above and the fact that the counterclaim for possession was only made in 2014, the limitation period would have expired in any event irrespective of adverse possession being started in 1972 (expiring in 1992) or 1976 (expiring in 1996) or 1997 (expiring in 2009).

16.  The present case is like the situation before this Court in Grand Wayfair Investment Co Ltd v Chan Yung Kan CACV 238/2013, 26 September 2014 where it was held that there was no injustice for the court to reach a conclusion on adverse possession based on a shorter period than the one pleaded so long as it was clear that the squatter’s case was one of continuous possession, see in particular [14] to [22] and [32].  See also another decision in similar vein by another division of the Court of Appeal in Yu Siu Cheuk v Realray Investments Ltd CACV 181/2009, 10 November 2009.

17.  The Judge was correct in holding that it was sufficient for the Plaintiff to establish adverse possession since at least 1997.

No need to prove gift or succession

18.  Grounds 1 and 3 can be considered together.  Again they can be disposed of shortly.  The underlying premise of these grounds is that the Plaintiff has to establish on his own right the claim of adverse possession without relying on the successive periods of dispossession by his father or his grand-uncle.  Thus, under Ground 1, counsel submitted that as possession in law is single and exclusive it is not possible for possession to be held severally by several persons at the same time.  It was then argued under Ground 3 that the Judge failed to consider if the Plaintiff’s possession was single and exclusive as opposed to a joint possession with other members of his family. Counsel highlighted the lack of assessment by the Judge on the claim of passing of possession to the Plaintiff and the evidential deficiencies in respect of (1) the date of demise of the grand-uncle; (2) the uncertainty on giving of possession to the Plaintiff or he was only given a licence; and (3) lack of evidence of gift.

19.  With respect, the underlying premise is wrong in law.  In Young Ivy Shui Heung v Yau Koon Sum [2019] HKCA 221, this Court held at [13]:

“ In respect of adverse possessory title, a squatter can take the benefit of the adverse possession of another squatter provided that the possession continued with his own possession. There is no need for any assignment of possessory title to achieve that result. So long as the paper title owner has been continuously dispossessed, the last squatter would have acquired a superior title, see Megarry & Wade, The law of Real Property 8^th edn, paragraphs 35-021 & 35-022; Jourdan & Radley-Gardner’s Adverse Possession 2^nd ed at paragraphs 6.51 and 6.52; Ng Lai Sim v Lam Yip Shing HCA 2963/1998, 22 Nov 1999; Chong Hing Bank v Fairview City Ltd [2018] HKCFI 1732.”

20.  Thus, even if the Plaintiff had to rely on some periods of adverse possession by his father or grand-uncle, so long as the dispossession has been continuous, no gift or assignment needs to be established. 

21.  Further, as discussed above, it is sufficient in the present context for the Plaintiff to establish adverse possession starting from 1997.  Having regard to the facts of the case, it is wholly unrealistic to suggest that the possession since 1997 could have been a joint possession with the grand-uncle or the father.  The clear evidence is that the grand-uncle had already passed away in 1976 and the reference to 2002 in the Plaintiff’s opening submission is obviously a mistake.

22.  On the evidence, the structures were built by the Plaintiff on Area A over the years.  They were used by him and later his own family as residence.  The clearing of Area B to construct the road or mud path was done by him.  He permitted a relative to reside at one of the structures for a short while.  Even though the father had not yet passed away in 2014 (he died in 2015), it is fanciful to suggest he had an interest or retained possession in the Land after all these years.

23.  Moreover, the point about licence was not pleaded anywhere in the Defence.  It was not a point taken in the closing submissions of the 1^st Defendant.  Mr Chan was unable to show to us the allegation that the Plaintiff had at all times been occupying the Land as licensee of the father had been put to him in cross-examination.  In the circumstances, this is not a point open to the 1^st Defendant: see Cheung Kwong Yuen v Sun Hui Fang [2019] HKCA 225; Mui So Bing v Wan Chi Shing [2019] HKCA 1341.

Adverse Possession of Area A

24.  Turning next to Ground 4, Mr Chan submitted that the Judge’s finding on the use and occupation of Area A by the Plaintiff was plainly wrong.  His main arguments are:

(a)  The Judge did not assess the evidence of Mr Cheung properly;

(b)  The Judge wrongly found that the electricity supply on the Land evidenced the Plaintiff’s single and exclusive possession of Area A;

(c)  The Judge erred in regarding the mud path connecting Tai She Ha Road West as evidence of the Plaintiff’s occupation of Area A;

(d)  The Judge wrongly regarded the four structures as sufficient evidence of possession beginning in 1997 of the entire Area A;

(e)  The Judge erred in relying on the existence of the fences on the southern side of Area A.

25.  In our judgment, these arguments (whether taken individually or collectively) do not make good a case of upsetting the Judge’s finding as plainly wrong.  The matters identified by Mr Chan were not the only evidence before the court.  The Judge also alluded to other evidence in coming to his finding, including the Plaintiff’s own evidence, the survey maps and aerial photos and the expert reports. 

26.  The Judge addressed the evidence of Mr Cheung at [26] of the judgment.  The main criticism of Mr Chan in that regard is the failure of the Judge to grapple with Mr Cheung’s evidence that he only learnt at the court hearing that the Plaintiff lived on the Land.  He previously thought that the Plaintiff lived with his father at a house at Nam Hang Tsuen.  Mr Cheung also acknowledged that his witness statement was prepared by lawyer and he only signed it.

27.  With respect, whilst these are comments which counsel could make (and in the court below Mr Wong did make them in his closing submissions), they are by no means conclusive in refuting the Judge’s approach to Mr Cheung’s evidence at [26].  The Judge clearly acknowledged that there are problems with his witness statement.  He was correct in stating that Mr Cheung did give evidence that the son of the Plaintiff lived at Area A and the son and the father lived at the same place.   

28.  The other contentions of Mr Chan relating to the evidence of Mr Cheung and the electricity bill were essentially subsidiary to the above argument based on single and exclusive possession as opposed to the factual occupation and use of Area A.  In that regard, we do not need to repeat what has been said above.

29.  Insofar as the Judge relied on the electricity bill and confirmation (as he did at [28] of the judgment) to reinforce the Plaintiff’s case that there had been electricity supply to Area A in 1981, we do not find that to be erroneous.

30.  As regards the mud path, the Judge did not take the construction of it as direct evidence of the Plaintiff’s occupation of Area A.  At [30] of the judgment, the Judge pondered upon the purpose behind such construction and arrived at a common sense answer.  In other words, the Judge considered the matter from the angle of inherent probabilities.  The Judge was clearly aware that the road was constructed progressively as he described the works at different stages over the years. 

31.  There is also no merit in the challenge on the Judge’s reliance on the four structures.  As the Judge made clear at [33] and [34], he was aware that the four structures were erected at different times.  The Judge did not find adverse possession of the entire Area A based on a misconception that the four structures had been there in 1997.  The aerial photos show that over the years, there had been structures at various parts of Area A and they had been pulled down and rebuilt at different times.  In this connection, the Judge adequately explained his reasoning at [37] of the judgment in respect of the other parts of Area A which were not covered by the structures. 

32.  On the fencing at the southern side of Area A, the Judge was aware that it did not enclose the whole area, see [38] of the judgment.  The extent to which the fence enclosed the land was explored in the evidence of the Plaintiff as well as his surveyor.  The surveyor of the Plaintiff accepted that the fence did not enclose all the land.  The Plaintiff maintained there was fence at the land but it is not very clear from the way in which he was cross-examined and his answer whether he insisted that the fence enclosed the entirety of the land.  In any event, the Judge only referred to the existence of fences on the southern side of Area A as supporting factual possession of Area A by the Plaintiff.  The Judge’s approach on fencing was explained at [25]:

“ As submitted by the plaintiff, if the court accepts that he had lived on Area A for the sufficient number of years, it is abundantly clear factual possession and the animus possidendi has been proved for Area A. Residing on Area A, exclusive possession of Area A, must be unequivocal conduct of factual possession with the required animus possidendi. Whether there is fencing or not has little or no bearing to the question of a squatter who lived on the land.”

33.  On the facts and evidence in the present case, we agree with this approach.

34.  As pointed out by Mr Leong SC, the Judge obviously had regard to the aerial photos and the survey maps with the assistance of the expert evidence in coming to his finding regarding Area A. 

35.  Mr Chan failed to persuade us that this is a case where this Court can legitimately interfere with the findings of the Judge in respect of Area A in accordance with the principles on appellate intervention of findings of fact discussed in China Gold Finance Limited v CIL Holdings Limited CACV 11/2015, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015; ZJW v SY CACV 10/2017, 1 December 2017.

36.  Counsel also advanced a submission that the Judge had taken some paragraphs from the opening and closing submissions of the Plaintiff and adopted the same as the main parts of his judgment.

37.  Whilst large scale copying from counsel’s submissions is not a practice which we would endorse, the crucial questions are (1) whether the Judge had exercised his independent judgment over the matter; and (2) whether adequate reasons were given by the Judge in the judgment for coming to his decision, see Tsang Wing Kwai v Tsang Wing Fai [2019] HKCA 163.

38.  In the present case, Mr Chan submitted that the judgment did not contain: (1) any discussion on the evidence of the 1^st Defendant and submissions; (2) any analysis of the Plaintiff’s pleaded case and how it differs from the aerial photos and survey plans; or the substantial deviations between the Plaintiff’s pleadings and his live evidence; and (3) any discussion of the credibility (or lack of credibility) of the Plaintiff or Mr Cheung.

39.  As far as independent judgment is concerned, we are satisfied that the Judge had independently considered the issues in the case and assessed the evidence.  As it had been said in Tsang Wing Kwai v Tsang Wing Fai [2019] HKCA 163 at [38], the matter has to be approached by reference to the competing contentions before the court.  The Judge correctly identified at [21] of the judgment that the 1^st Defendant had no positive case and on the evidence it was largely uncontroversial that there had been squatters in Area A since as early as 1969, and definitely no later than 1978.

40.  As we have seen, instead of accepting the Plaintiff’s case in its entirety, the Judge focused on possession after 1997 for the reasons he gave at [35] and [36] of the judgment.

41.  In the court below, counsel for the 1^st Defendant had placed great emphasis on the issue of single and exclusive possession and considerable submissions were made in relation to the occupation and use of Area A prior to 1997 (including the discrepancies in the various versions of pleadings and the Plaintiff’s evidence).

42.  Had those matters been relevant to the outcome, we would accept that it is not satisfactory for the Judge not to address the evidential issues pinpointed by counsel for the 1^st Defendant. 

43.  However, for the reasons we canvassed above, the Judge was right in holding that it is sufficient to consider the possession of the Land since at least 1997.  As we observed above, by that stage in light of the objective evidence it would be fanciful (when no positive case had been put forward by the 1^st Defendant) to suggest that the father or the grand-uncle had any possession. 

44.  In the particular circumstances of the present case, we do not see any merit in Mr Chan’s submissions in this regard in respect of Area A. 

45.  Having said that, we must stress that the way in which a judge expresses himself in a judgment is an important part of the judicial process. A judgment informs the litigants and the appellate court how the judge assesses the issues and the evidence before the court.  Whilst sometimes it may be convenient to refer to submissions of counsel, substantial copying from such submissions should be avoided as it may give rise to an impression that the judge had not fully apprised of the issues independently, see Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387 at p.515 to 517.  Further, it is always better for a judge to express in his own language on how a finding or a conclusion on law is reached because in so doing the judge could refine his reasoning and explain the same in a more pertinent and coherent manner.

46.  As a matter of caution, we have examined the evidence of the occupation and use of Area A since 1997 afresh and we come to the same view of the Judge, viz that the Plaintiff had adversely possessed Area A since at least 1997.

Adverse possession of Area B

47.  Area B is not contiguous with Area A.  As shown in the survey plan in Appendix 2 to the judgment, Lot 1213 sections A and B were situated between them.  Whilst it was the Plaintiff’s claim that Lot 1213 had been in adverse possession of the Plaintiff, such claim was discontinued and the Judge did not make any finding in respect of the same. 

48.  Further, as clearly shown on Appendix 2, only a small portion of Lot 1213 (Lot 1213 Section C) formed part of Area A.  Section C was assigned to the daughter of the Plaintiff in 2014.  The other sections in Lot 1213 belonged to others.    

49.  The footpath leading from the south of Area A to Area B had to pass through other parts of Lot 1213 (Lot 1213 RP), Lot 1214 and Lot 1211 RP before joining the road at Area B (at Lot 1212 RP), see the survey plans in Appendix 2, Bundle C p.415, 421, 422, and 501.  That footpath had been in place since at least 1986: see Bundle C p.514 and it obviously served different lots of land other than Area A. 

50.  Another road system apparently started to develop since 1998, with the construction or widening of the mud path at Lot 1212 RP, with a track branched off into Lot 1213 leading to Area A, see Bundle C p.522-528.

51.  In light of such evidence, it is difficult to understand the basis on which the Judge reached a finding that Area B had changed from rural land to predominantly a driveway serving only Lot 1213 and Area A.  Such finding fails to take account of the footpath (which had been there since at least 1986) which is also situated at Area B and serves other land as described in [49] above.  Insofar as the Judge referred to the mud path and track constructed since 1998, it does not cover the entire area of Area B.  Further, apart from serving Area A occupied by the Plaintiff, it also served Lot 1213 Section B and possibly Section D and Section E.

52.  At [40] of the judgment, the Judge placed emphasis on the fact that the mud path was essentially a private driveway leading from Tai Shu Ha Road West to Area A before coming to the assessment that the Plaintiff had done sufficient to exclude the world at large in respect of Area B.  That was the basis for his conclusion that the Plaintiff had the requisite intention for adverse possession notwithstanding that he had little physical control to prevent other persons from entering. 

53.  Mr Leong relied on [39] to [42] to support a finding on animus possidendi regarding Area B.  But in those paragraphs, the Judge proceeded on the basis that the plaintiff can simply rely on the constructed road from Tai Shu Ha Road West leading to Area A to establish adverse possession since this road only leads to Lot 1213 and Area A and it did not serve any other land, and its enjoyment was exclusive to the plaintiff.

54.  As we have seen, it is wrong to equate the mud path with the whole of Area B.  Further, even if one is only referring to the mud path, the Judge failed to take account of it serving land in the vicinity other than Area A.

55.  Mr Leong further submitted that counsel for the 1^st Defendant at the trial did not take issue on the private nature of the mud path. 

56.  However, as observed by the Court at the hearing, the burden is on the Plaintiff to establish animus possidendi regarding Area B. 

57.  At [8] of the Re-re-re-re-amended Statement of Claim where the construction of the road was pleaded, there is no averment that the road covered the entire area of Area B.  Nor is there any plea that the road served Area A exclusively. 

58.  Whilst the Re-amended Defence and Counterclaim only pleaded a bare denial in response to [8], in the closing submissions at the trial counsel for the 1^st Defendant did allude[5] to the footpath having been there since 1978 and the history on the use of Area B thereafter.

59.  As mentioned, the Judge did not address such issues.

60.  Further, as Mr Chan demonstrated, [39] to [42] of the judgment were all taken from the closing submissions of the Plaintiff. 

61.  Unlike the case in respect of Area A, we are of the view that there are serious issues regarding Area B (as discussed above) which the Judge failed to address. 

62.  In the circumstances, we are driven to the conclusion that the declaration of the Judge regarding Area B must be set aside.

63.  We would allow the appeal in respect of Area B but dismiss the appeal in respect of Area A.

64.  As regards costs here and below and the course to take in relation to the claim on Area B, we shall invite submissions from counsel, including whether the claim should be dismissed or remitted to the Judge.   We direct:

(a)  The Plaintiff shall lodge and serve submissions on the above matters within 14 days from the handing down of this judgment;

(b)  The 1^st Defendant shall lodge and serve submissions on the above matters within 14 days thereafter.

(c)  The Court shall then decide if we can decide the same on the papers.