雲秀玲 v. 所有佔用香港沙田渡頭灣村51及52號(丈量約份第206約地段第811號餘段)之人仕及另二人

DCCJ 3844/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3844 OF 2010

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J U D G M E N T

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Introduction

1.  This is a dispute over the ownership of the property known as the Remaining Portion of Lot No 811 in Demarcation District No 206 (“811RP”) in To Tau Wan Village (渡頭灣村), Shatin.  According to the Land Search Record, the registered owners of 811RP are as follows :-

(a)   From 30 July 1986 to 5 June 1995: Chan Kwan Hor Louis;

(b)   From 5 June 1995 to  22 June 2001: Ruffa  Ltd;

(c)   From 22 June 2001 to 3 June 2010 : Richco Properties Ltd; and

(d)   From 3 June 2010 to present: the plaintiff.

2.  The plaintiff seeks possession of 811RP from the defendants. The 2^nd and 3^rd defendants (who are father and son) rely on the defence of adverse possession.

3.  The 2^nd and 3^rd defendants counterclaim that by virtue of sections 7(2) and 17 of the Limitation Ordinance,Cap 347 (“the Ordinance”), the plaintiff’s right of action to recover 811RP has expired as a result of adverse possession by the 2^nd and 3^rd defendants since 1962.

4.  Alternatively, the 2^nd and 3^rd defendants counterclaim that by virtue of sections 23(1)(a) and 17 of the Ordinance, the plaintiff’s right of action to recover 811RPhas expired in 2006, when the right of action started to accrue in 1986 and expired after 20 years of adverse possession by the 2^nd and 3^rd defendants.

5.  It is common ground between the parties that for the 2^nd and 3^rd defendants to establish their defence under the Ordinance, the 2^nd and 3^rd defendants are required to show 20 years of adverse possession.

The plaintiff’s case

6.  The plaintiff’s case is simple and straightforward.  The plaintiff says that as the current owner of 811RP, she is entitled to recover possession of 811RP.  The burden is on the 2^nd and 3^rd defendants to adduce sufficient and credible evidence to establish the defence of adverse possession.

7.  The plaintiff seeks only the following relief: -

(a)   the 2^nd and 3^rd defendants to demolish the structures erected on 811RP  ; and

(b)   the 2^nd and 3^rd defendants to deliver vacant possession of 811RP to the plaintiff.

8.  In his written closing submissions, Mr Roy Lau, counsel acting for the plaintiff at this trial, confirmed that the plaintiff will not pursue the claim for damages against the 2^nd and 3^rd defendants.

The 2nd and 3rd defendants’ case

9.  The 2^nd and 3^rd defendants admit that the plaintiff is the current owner of 811RP.  Further, the 2^nd and 3^rd defendants accept that the burden is on them to establish the defence of adverse possession.

10.  As part of her oral closing submissions made at the hearing on 27 February 2013, Ms Selina Kung, counsel acting for the 2^nd and 3^rd defendants, made it clear that the 2^nd and 3^rd defendants would only rely on two periods of adverse possession but not the others, namely:-

(a)   from 1962 to 1982; and

(b)   from 1986 to 2006.

11.  Accordingly, the court is only tasked to determine whether the 2^nd and 3^rd defendants can successfully establish the defence of adverse possession during those two periods of time.  For instance, any act done by the 2^nd and 3^rd defendants on 811RP after 2006 is not relevant and cannot assist the 2^nd and 3^rd defendants in establishing the defence of adverse possession.

Relevant legal principles

12.  The burden of proof is on the defendants to establish on a balance of probabilities that the evidence is sufficient to establish both factual possession and an intention to possess (animus possidendi).

13.  Factual possession signifies an appropriate degree of physical control.  Everything must depend on the particular circumstances, but broadly, what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so [see: Powell v McFarlane (1979) 38P&CR452 at 470-471 per Slade J].

14.  An intention to possess is an intention to exercise such custody and control in one’s own name and on one’s own behalf to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow [see : Powell v McFarlane, Supra, at 471-472; JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at paragraph43; Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55 at 68 E-J].

15.  The question of intention to possess, as with any other question of intention, is one of fact.  Whether it can be established depends on an assessment of all the circumstances in a particular case [see: Wong Tak Yue v Kung Kwok Wai (No 2), Supra, at 69A].

16.  The onus of proof on the defendants is a heavy one.  Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the court should approach them with some scepticism.  The court would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve.  Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the court would usually accord to them considerable weight [see: Wong Tak Yue v Kung Kwok Wai (No 2), Supra, at 69AB-C].

17.  The heavy onus on the defendants have been described by Slade J in Powell v McFarlane, Supra, at page 472 as follows :-

“An owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession. The position, however, is quite different from a case where the question is whether a trespasser has acquired possession. In such a situation the courts will, in my judgment, require clear and affirmative evidence that the trespasser, claiming that he has acquired possession, not only had the requisite intention to possess, but made such intention clear to the world. If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.”

The benefit of any doubt should be given to the owner.

Analysis of evidence

18.  By way of preliminary comments, I would like to point out that the 2^nd and 3^rd defendants’ case depend almost entirely on the credibility of the 3^rd defendant as a witness.  The 2^nd and 3^rd defendants’ case is essentially unsupported by any contemporaneous documentary evidence. 

19.  Further, the defendants have filed a total of 4 Witness Statements to support their case on adverse possession.  However, the 2^nd defendant (father of the 3^rd defendant), being the key witness who claims to be in occupation of 811RP since 1962, did not come to prove the defendants’ case on adverse possession at all.  In particular, the 2^nd defendant expressly did not adopt paragraph 2 of his Witness Statement (which purported to confirm the truthfulness of the matters stated in the 3^rd defendant’s Witness Statement) as part of his evidence-in-chief.  The other 2 witnesses: (i) Cheung Wing Sang – village representative of the To Tau Wan Village; and (ii) Fong Chi Wai – villager of To Tau Wan Village, who had signed Witness Statement to state that the 2^nd and 3^rd defendants were living on 811RP since 1962, were not called to give evidence to support the 2^nd and 3^rd defendants’ claim.

20.  The net result is that the 2^nd and 3^rd defendants’ case depends almost entirely on the credibility of the 3^rd defendant as a witness.

1960s

21.  In paragraph 12 of the Amended Defence and Counterclaim, it is pleaded that the 2^nd defendant came to Hong Kong in the early 1960s, and in 1962 built a wooden hut on 811RP and the nearby Remaining Portion of Lot No 791 (“791RP”).

22.  However, the 3^rd defendant’s evidence is inconsistent with the pleadings.  The 3^rd defendant said in 1962, he and his parents and his younger sister came to Hong Kong from Mainland China and built a wooden hut on the current location of House No 51.  From the Lot Index Plan, it can be seen that House No 51 is not located within 811RP or 791RP at all.

23.  Further, I agree with Mr Roy Lau that the 3^rd defendant’s evidence is not credible or reliable at all.

(a)   In 1962, the 3^rd defendant was only 5years old. Even by 1969, the 3^rd defendant was only 12years old.  It is clearly difficult for this court to rely on the 3^rd defendant’s memory to recall clearly what had happened when he was at such a young age.

(b)   The 3^rd defendant repeatedly told the court that for a lot of matters, he was merely told by his father and did not have any personal knowledge.  As the 2^nd defendant was not able to come up to proof, it is very difficult for this court to attach any weight on the 3^rd defendant’s evidence.

(c)   Even on the 3^rd defendant’s evidence, only a wooden hut (House No 51) was built at that time.  It is apparent that House No 51 was not located on 811RP.

(d)   The 3^rd defendant agreed that in the 1960s, no-one lived on 811RP.

(e)   In paragraph 12 of the Amended Defence and Counterclaim, it is pleaded that the 3^rd defendant since the mid-1960s grew vegetables, sweet potatoes, peach flower trees and potted plants for living on 811RP and 791RP; and erected a brick and wooden structure for storing manure as well as a cowshed on 811RP.

(i) The Defence and Counterclaim was amended on the first day of trial to match the 3^rd defendant’s Witness Statement adopted as his evidence.  The original Defence and Counterclaim stated that two wooden huts were built on 811RP and nearby land.  More importantly, it was stated that the 3^rd defendant has been living in the two wooden huts since the 1960s.  The original Defence and Counterclaim was endorsed with statements of truth signed by respectively the 2^nd and the 3^rd defendants.  As the 3^rd defendant was so mistaken as to which house he actually lived in, I simply find it very difficult to place any weight on his evidence.

(ii) The 2^nd and 3^rd defendants did not mention in the original Defence and Counterclaim about the structure for storing manure or the cowshed.  Keeping animal as livestock is obviously very different to growing crops or flowers.  It is difficult to see how this can be missed out in the original pleadings.

(iii) The 2^nd and 3^rd defendants produced aerial photographs of 811RP dated 14 December 1973 (exhibit D1).  The 3^rd defendant was unable to point out the structure for storing manure and the cowshed. 

(iv) As regard the crops, the original Defence and Counterclaim only covered peach flower trees and potted plants.  However, in the evidence of the 3^rd defendant, it was expanded to cover vegetables and sweet potatoes.  If the farming was really done for the livelihood of the 2^nd defendant’s family at that time, I agree with Mr Roy Lau that it is not possible for the 3^rd defendant to forget to put down the correct types of crops that they were growing.

(v) In the original Defence and Counterclaim, it was stated that since mid-1960s, the 2^nd defendant surrounded the land (which included 811RP) with metal wire and wooden sticks.  However, the 3^rd defendant’s evidence did not touch upon the alleged enclosure of the land in the mid-1960s.  Under cross-examination, the 3^rd defendant agreed that there were two different versions in respectively the original Defence and Counterclaim and his evidence.  His explanation is simply that he had made a mistake.  I do not find this explanation credible.

(vi) In paragraph2 of his Witness Statement, the 3^rd defendant also said that in 1966, the squatter control unit assigned yellow numbers to their huts, the structure for storing manure and the cowshed.  However, under cross-examination, the 3^rd defendant agreed that he could not produce any document to support these allegations.  Further, the 3^rd defendant accepted that the assignment of numbers by the squatter control unit was actually not within his own knowledge, he was simply told by his father (who did not come up to proof).  In the circumstances, little weight can be put on the 3^rd defendant’s hearsay evidence.

24.  For the reasons stated above, I am not satisfied that the evidence of the 3^rd defendant is sufficiently credible or reliable to prove factual possession or intention to possess by the 2^nd and 3^rd defendants of 811RP during the 1960s.

1970s

25.  The 3^rd defendant’s evidence is that more siblings were born to his family in the 1970s.  The 2^nd defendant’s family expanded to a total of 8 persons.  As the living environment was too crowded, the 2^nd defendant built on 811RP:  (i) a new hut with wood and asbestos tiles for the 3^rd defendant to live in; and (ii) a storeroom for storing miscellaneous items and farming utensils.  In the witness box, the 3^rd defendant maintained that the new huts was built in 1976 for his sole occupation and later became House No 52.  I agree with Mr Roy Lau that there are a number of problems with the 3^rd defendant’s evidence:-

(a)   The 3^rd defendant’s evidence is against common sense and inherently improbable.  If the reason for building the new huts was to relieve the crowded living condition of the family of eight in House No 51, why was it that only the 3^rd defendant moved to live in the new hut, leaving the other 7 members of the family squeezed in House No 51.

(b)   The 3^rd defendant’s evidence is inconsistent with the case pleaded in the original Defence and Counterclaim that two wooden huts were built in the 1960s.  Further, the alleged new hut built with wood and asbestos tiles was never mentioned in the original pleadings. 

(c)   The allegation that the new hut was built in 1976 is inconsistent with the finding in the expert report, prepared by Mr Eric Tang of Eric Tang & Associate Ltd for the purpose of ascertaining the boundary and the alleged usage and duration of occupation of 811RP by the defendants.  In the expert report, Mr Eric Tang came to the conclusion that House No 52 was erected in around 1979.  Mr Eric Tang came to that conclusion after examining historical aerial photographs from the 1970s and 1980s.  Mr Eric Tang’s conclusion is also consistent with the fact that House No 52 first appeared in the 1980 version of the Government Survey Sheet.  By the order of Master I Wong dated 18 June 2012, the expert report of Mr Eric Tang was admitted as evidence at trial, without Mr Eric Tang having to give any oral evidence.

(d)   The 3^rd defendant agrees that the alleged storeroom cannot be seen on the two aerial photographs of 811RP dated respectively 14 December 1973 (exhibit D1) and 3 February 1981 (exhibit D2).

26.  For the reasons stated above, I am not satisfied that the evidence of the 3^rd defendant is sufficiently credible or reliable to prove factual possession by the 2^nd and 3^rd defendants of 811RP during the 1970s.

1980s

27.  In paragraph4 of his Witness Statement, the 3^rd defendant stated that in 1981, the squatter control unit re-assigned new numbers to all the houses in To Tau Wan Village and the numbers were changed from yellow to red, and from that time, the defendants were required to pay rates to the government up till now. Again, the 3^rd defendant’s evidence is difficult to accept for the following reasons:-

(a)   There is no documentary evidence whatsoever to prove the payment of rates by the 2^nd and 3^rd defendants.

(b)   When the 3^rd defendant was cross-examined on the fact that rates payment was actually made by the plaintiff and the plaintiff’s predecessor, namely, Richco Properties Ltd (see : demand notes for March 2003, April 2005 and October 2010), the 3^rd defendant failed to give any satisfactory answer .

(c)   Clearly, the 3^rd defendant has failed in his attempt to show that the defendants had treated themselves as the occupiers of the land by paying rates.  To the contrary, the plaintiff has demonstrated that the owners exercised their ownership by paying rates.  As stated in Powell v McFarlane (see: paragraph 17 above), such slightest acts done by the owner should be found to negative discontinuance of possession.

28.  More importantly, on the 3^rd defendant’s own evidence, the 3^rd defendant stated that it was only from 1981 onwards, when the 2^nd and 3^rd defendants began to have the sole right to use 811RP and 791RP （從那時開始便擁有Lot 811RP 及 791RP DD206 的獨自使用權）.  By so stating, the 3^rd defendant has clearly admitted that the 2^nd and 3^rd defendants did not have sole right to use 811RP and 791RP before 1981.

29.  Further, when the 3^rd defendant was examined on the presence of “outside people”, the 3^rd defendant explained that there were people coming onto 811RP for travelling (有人入嚟旅行).  From such evidence, it is apparent that the 2^nd and 3^rd defendants did not exercise exclusive possession of 811RP and had no intention to exclude the world at large from the land.

30.  In the Wong Tak Yue case, the court of Final Appeal has made it clear that where the occupier has made statements as to what was his intention and such statements are against his interest, the court would usually accord to them considerable weight.

31.  Further, when the 3^rd defendant was cross-examined on the aerial photograph dated 3 February 1981 (exhibit D2), there are a number of points that affected his credibility and showed that the defendants had no intention to exclude the world at large :-

(a)   On exhibit D2, the aerial photograph shows a wide and well constructed road leading onto 811RP.  The 3^rd defendant gave different stories regarding the road :

(i)   Initially, the 3^rd defendant said the road was built in 1981 by his family by hand-digging and it was a mud road.

(ii)   When the 3^rd defendant was cross-examined why the road was so wide and well constructed and did not appear to have been made by hand-digging, the 3^rd defendant changed his story and explained that the road was initially hand-dug and became flat and wide because a lot of cars used the road.

(iii)   When he was cross-examined that the aerial photograph was taken in February 1981 and it was not, therefore, possible for his family to have hand-dug the road in 1981, the 3^rd defendant further changed his evidence that the road was built sometime between 1978 and 1983/4.  When the 3^rd defendant was cross-examined as to why such an important construction by the family was not included in the pleadings and the Witness Statements, the 3^rd defendant simply could not offer any satisfactory answer. 

(iv)   The 3^rd defendant also explained that part of road was actually built by the government.  However, when he was asked which part was built by his family and which part was built by the government, the 3^rd defendant arbitrarily put a dividing line on the road.  It is difficult to see on the aerial photograph the difference between the alleged hand-dug portion and the portion constructed by the government. 

(v)   At some point, the 3^rd defendant said there was a gate across the road inside 811RP.  However, in re-examination, the 3^rd defendant was not able to point out the location of the gate in the aerial photograph.

(b)   More importantly, the 3^rd defendant said the villagers of To Tau Wan Village would walk through the road at 811RP in order to access the village houses behind House No 52 (many such houses can be seen on the aerial photographs).  Further, towards the end of his cross-examination, the 2^nd defendant also made a clear admission that for all these years till now, villagers can freely walk through 811RP in order to go home.  This evidence clearly shows that all along, the 2^nd and 3^rd defendants did not have the requisite intention to exclude the world at large as the villagers were free to use the road and walk through 811RP.

32.  Again, the 3^rd defendant’s evidence that in 1989 plant shelters were built to protect the plants is problematic.  In the aerial photograph dated 17 July 1990 (exhibit D3), the 3^rd defendant attempted to point out the location of the shelters.  If one compares that with the Lot Index Plan (page 24H of the trial bundle), it is apparent that the major portion of the shelters identified by the 3^rd defendant were outside the boundaries of 811RP and 791RP. The 3^rd defendant has failed to show that the shelters were built within the boundary of 811RP.  If there is any doubt on this point, the benefit of such doubt should be given to the plaintiff (see: paragraph 17 above).

33.  For the reasons stated above, I am not satisfied that the evidence of the 3^rd defendant is sufficiently credible or reliable to prove either factual possession or intention to possess by the 2^nd and 3^rd defendants of 811RP during the 1980s.

1990s

34.  It is the 3^rd defendant’s evidence in paragraph 6 of his Witness Statement that he renovated the two houses (ie Houses No 51 and 52) in around 1997 and due to the renovation, the red numbers assigned to Houses No 51 and 52 could not be preserved.  On that day, he recorded the numbers assigned by the squatter control unit to Houses No 51 and 52 on a piece of paper (page 85 of the trial bundle).

35.  Again, I find it hard to accept the 3^rd defendant’s evidence :-

(a)   Previously in his evidence, the 3^rd defendant had said that the dimension of House No 52 was 10 ft x 12 ft x 8 ft.  However, the record made by the 3^rd defendant (page 85 of the trial bundle) stated the dimension to be 10 ft x 8 ft x 8 ft.  When the difference was pointed out to the 3^rd defendant, he explained that “he got it wrong”.  It is difficult to accept that the 3^rd defendant, who had allegedly been living in House No 52 for so many years, would get the dimension of his own home wrong.

(b)   According to the letter from the Rating and Valuation Department dated 12 November 1999 (page 99 of the trial bundle), House No “52 To Tau” was formally assigned in 1999.  The last sentence of paragraph6 of the 3^rd defendant’s Witness Statement is to the same effect.  Accordingly, it was not possible for the 3^rd defendant to have marked “沙田渡頭村52號” on the piece of paper (page 85 of the trial bundle) as alleged in 1997, because in 1997, House No 52 had not yet been assigned.

36.  Further, it is the 3^rd defendant’s evidence that he applied for electricity supply after completion of the renovation works in 1997.  However, the CLP Power Deposit Advice produced by the 3^rd defendant (page 101 of the trial bundle) stated that the deposit was not due to be paid until 23 September 1999, some two years later.  No explanation was given by the 3^rd defendant to explain the delay. 

37.  Again, I am not satisfied that the evidence of the 3^rd defendant is sufficiently credible or reliable to prove factual possession by the 2^nd and 3^rd defendants of 811RP during the 1990s.

After 2000

38.  In 2003, the boundary of 811RP was surveyed by Mr Eric Tang or under his direct supervision.  It is clearly stated in the expert report that at that time, no fence of any type or wall had been erected at or to enclose 811RP.  The evidence from the independent surveyor thus goes directly against the allegation of the 2^nd and 3^rd defendants that fences had been built before 2003.  Moreover, the defendants have not provided any photographic evidence to support their bare allegations that fences had been built before.

39.  More importantly, Mr 温道生(“Mr Wan”) gave the following evidence in his Witness Statement (which was adopted as his evidence-in-chief) and under cross-examination regarding the events in 2003:-

(a)   In 2003, his employer, Messrs C M Li, Chow, Pang & Chan solicitors, and the surveyor were instructed by Richco Properties Ltd to confirm the boundary and area of 811RP.

(b)   He and the surveyor could enter 811RP freely (自行進入). It was the surveyor who confirmed that they had reached 811RP and pointed to him the rough boundary of 811RP.

(c)   When he and the surveyor entered 811RP to carry out the survey, he met Mr Tsang (ie the 2^nd defendant) outside a stone hut.  He was asked by the 2^nd defendant what they were doing.  He replied that he was Mr Wan, a representative of Messrs C M Li, Chow, Pang & Chan solicitors, and he together with the surveyor were instructed by the owner of 811RP to carry out a survey on the boundary an area of 811RP.  Significantly, their entry onto 811RP and the performance of the surveying work were not hindered or interrupted by anybody (including the 2^nd defendant).

(d)   This clearly shows that by 2003, the 2^nd and 3^rddefendants still did not have the requisite intention to exclude from 811RP the world at large including the owner.

(e)   Further, Mr Wan testified that after he and the surveyor got off the taxi, they walked along a path with grassland on either side.  After about 5 to 10 minutes, they arrived at an open area, and he was told by the surveyor that they have arrived at 811RP.  Mr Wan did not see any metal wire and wooden sticks surrounding 811RP.  It can be noted that Mr Wan’s evidence is consistent with the observations as stated in the expert report.  This goes against the allegation of the 2^nd and 3^rddefendants that fences had been built in the 1980s.

40.  In paragraph18 of the Amended Defence and Counterclaim, it is pleaded that between 2004 and 2008, the 2^nd and 3^rddefendants had let out part of 811RP and 791RP to a tenant for parking vehicles.

41.  Again, there are problems with the defendants’ allegations :-

(a)   Most importantly, there is no evidence in the Witness Statements of the 2^nd and 3^rddefendants to support such allegations in the pleadings.

(b)   There is no documentary evidence to support the defendants’ allegation as to the letting out for car parking purposes.

(c)   The allegation is vague.  It is unclear as to which part of 811RP was let out to a tenant.

Conclusion

42.  For the reasons stated above, I am not at all satisfied that the evidence produced by the 2^nd and 3^rd defendants at trial is sufficiently credible or reliable to prove adverse possession by them of 811RP during the two periods in question, namely, (1) from 1962 to 1982; and (2) from 1986 to 2006.

The Chinese Note made in 1986

43.  It is the plaintiff’s case that on 25 July 1986, her predecessor, Chan Kwan Hor Louis signed a Chinese written document (page 110 of the trial bundle) in which the 2^nd defendant admitted that Chan Kwan Hor Louis was the owner and regarded himself as “user 用地人”.  Further, it is the plaintiff’s case that the 2^nd and 3^rd defendants thereafter occupied 811RP with the permission of  (i) Chan Kwan Hor Louis; (ii) Ruffa Ltd; and (iii) Richco Properties Ltd, because all the owners had no plan to develop 811RP.  The plaintiff seems to suggest that the 2^nd and 3^rd defendants were thus not in adverse possession because the use of 811RP did not conflict with the intention of the respective paper owners as to their present or future use of the land.

44.  On this point, I agree with Ms Selina Kung’s submissions that it is hard to see how the intention of the paper title owners (unless known to the squatter) can affect the intention of the squatter to possess the land.  However, this does not in any way affect the result of the trial.  For the reasons stated above, I find that the 2^nd and 3^rd defendants have simply failed to discharge the burden of proof on them to prove adverse possession of 811RP during the two periods in question.

45.  For the foregoing reasons, I would allow the plaintiff’s claim against the 2^nd and 3^rd defendants in this action and dismiss the 2^nd and 3^rd defendants’ counterclaim.

Order

46.  I give judgment in favour of the plaintiff against the 2^nd and 3^rd defendants for the following order :-

(1)   that the 2^nd and 3^rd defendants do give the plaintiff vacant possession of 811RP;

(2)   that the 2^nd and 3^rd defendants do forthwith pull down, demolish or remove so much of the structure(s) as is erected on any part of 811RP; and

(3)   there be liberty to all parties to apply as to the carrying out of the order under (2) above.

47.  The plaintiff shall have the costs of this action and the counterclaim against the 2^nd and 3^rd defendants, including any costs reserved (if any).  Such costs shall be taxed, if not agreed, with certificate for counsel. 

48.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

49.  Lastly, I thank counsel on both sides for their helpful assistance in this matter.