WAN KIN SHING v. THE INCORPORATED OWNERS OF CITY CENTRE BUILDING AND OTHERS

HCA 354/2015

[2023] HKCFI 815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 354 OF 2015

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JUDGMENT

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A.  INTRODUCTION

1.  The subject matter of this action is a “Wall Shop” situated on a scavenging lane (“the Lane”) between City Centre Building and Century Court[1] in Wanchai. The address of the Wall Shop is Side-lane entrance, 12 Stewart Road, Hong Kong.

2.  The Lane is longitudinally divided into two halves. On paper, the northern half is owned by the 1^st defendant, and the southern half is owned by the 3^rd defendant.[2]

3.  The Wall Shop, which according to a survey plan prepared by the expert for the plaintiff (“the Plan”) is 23.1m² in area, is immediately adjacent, or attached, to City Centre Building. I attach as Annex I a copy of the Plan to this Judgment.

4.  The 1^st defendant is the Incorporated Owners of City Centre Building (“the IOCCB”). It was incorporated on 11 December 1989. The Wall Shop is partly situated on the half of the Lane owned by the IOCCB, which also owns the external wall of the City Centre Building. Part of the external wall had been demolished (see [6] below) and some other area of the external wall is completely enclosed by the Wall Shop.

5.  The 2^nd defendant was the owner of a part of the ground floor of the City Centre Building known as Shop F, which it divided into two parts by a deed poll dated 4 April 2018 (i.e. after the issue of the writ herein on 16 February 2015). On that date, it sold and assigned one part thereof (called “Section A of Shop F”) to the 4^th defendant, which therefore became (and still is) the owner of Section A of Shop F. This action only concerns Section A of Shop F, and not the remainder of Shop F.

6.  In about 1968 or 1969, the Wall Shop intruded (and remains intruding) into a part of Shop F (which is now a part of Section A of Shop F) when that part of the external wall of City Centre Building adjacent to Shop F was demolished, and a new wall was built further inside Shop F, thereby creating an extended area for the Wall Shop. According to the plaintiff, two windows of Shop F were (and remain) sealed up at about the same time. This extended area (called the “Extended Portion”) consists of what was formerly part of the external wall (owned by the IOCCB, called “Extended Portion A”), as well as part of Section A of Shop F (now owned by the 4^th defendant, called “Extended Portion B”).

7.  The Wall Shop is also partly situated on the half of the Lane owned by the 3^rd defendant, which acquired Century Court and the southern half of the Lane by virtue of an assignment dated 15 March 1997. Outside the enclosed area of the Wall Shop, and situated on the 3^rd defendant’s half of the Lane, there is a knee-high brick wall attached to the Wall Shop on which plants are placed (“the Planter”). According to the Plan, the area occupied by the Planter is 2.1m². On and extending from the top of the Wall Shop is a canopy (of about 5m²) which overhangs the part of the Lane owned by the 3^rd defendant, including the Planter, as well as an enclosed space (called the “Orange Enclosed Space”). I attach as Annex II a photograph taken on 11 December 2017 showing the Planter, the Orange Enclosed Space and the canopy. According to Mr Liu Long San (“Mr Liu”), the only witness called by the 3^rd defendant, the Planter was built sometime after 21 November 2013, as photographs retrieved by him taken on that date show that the Planter did not exist at the time. In cross-examination, the plaintiff says that the Planter was put in by him in March 2013. The plaintiff has confirmed that he is making no claim for the area occupied by the Planter, making it unnecessary to find exactly when it was built save that it could not have been earlier than March 2013, but he is claiming the canopy and the Orange Enclosed Space.

8.  The Plan is prepared by the expert for the plaintiff and which the expert for the 3^rd defendant agrees to adopt (as far as the 3^rd defendant’s land is concerned, namely the cyan, yellow and violet areas) as showing the locations and areas occupied by various parts of the Wall Shop, as well as the Planter and the canopy.[3] The pink area is that part of the Wall Shop occupying land owned by the IOCCB. The green area is the Extended Portion. The orange area is another part of the Wall Shop occupying land owned by the IOCCB (but on a lot different from the lot on which the pink area is situated). The cyan and yellow areas are the part of the Wall Shop and the Planter occupying land owned by the 3^rd defendant.[4] The violet area is the area occupied by the canopy, overhanging land owned on paper by the 3^rd defendant. I accept and adopt the Plan as evidence of the size, area and location of various parts of the Wall Shop, the Planter and the canopy, and on which paper owner’s land each of them is occupying as at December 2017 (the date of the Plan) and now.

9.  The only defendant which participates in this trial is the 3^rd defendant, which owns Century Court (or the site on which it was built), and part of the Lane on which the Wall Shop is partly, and on or over which the Planter, the Orange Enclosed Space and the canopy are, situated. Neither the IOCCB nor the 4^th defendant has taken any part or steps in these proceedings, without even filing any pleadings. As for the 2^nd defendant, while it has filed a defence (subsequently amended), it has been granted leave to be excused from attendance at the trial but shall be bound by the judgment, save that it has the right to address the Court on the question of costs after trial.[5]

B.  THE ISSUES AND THE EVIDENCE

B1.  The plaintiff’s case

10.  In the following paragraphs, I set out the plaintiff’s case.

11.  According to the plaintiff, his parents, Wan Ming Hoi and Wong Choi Kam, entered into and took possession of an area on the Lane in the early 1950’s, without the consent or authority of the relevant owners. It was used by Wan Ming Hoi as a shoe repairing business, and soon, in the first half of 1954, Wan Ming Hoi and Wong Choi Kam began using the area as their residence as well. The place therefore became their home as well as being used for the shoe repairing business. Over the years, it had also been used for other business purposes by the family.

12.  The couple gave birth to five children (a daughter and four sons) between 1954 and 1966, including the plaintiff (born in 1956), and the children all lived with their parents at the Wall Shop after they were born until 1974, when the family moved to live in a unit in City Centre Building. Wan Ming Hoi and his family, however, continued to possess the Wall Shop for business purposes, including, since 1982, by a business called K Wah & Co, and since 1984, by a company called K Wah International Limited, both established by the plaintiff. The shoe repairing business in fact ceased in 1968. At the time of its incorporation, the plaintiff owned 57% of the share capital of K Wah International Limited, with the rest being held by Leung Kit Fun (33%), Wan Ming Hoi (5%) and Wong Choi Kam (5%). The latter two transferred their shares to Leung Kit Fun in 1993. Leung Kit Fun is the plaintiff’s wife.

13.  However, the exact area occupied by the Wall Shop, while always on the Lane, changed over the years. From 1952 to 1968, it was located immediately adjacent to an unnamed three-storey building (on which site a building called Hua Yuan Building (later renamed Century Court) was later developed), leaving a gap on the Lane between the then Wall Shop and the building on the other side of the Lane (on which City Centre Building was later developed (its occupation permit was issued on 9 September 1966)). The Wall Shop then “shifted” to immediately adjacent, or attached, to City Centre Building in about 1969, fully enclosing part of the external wall of City Centre Building, and leaving a gap on the Lane between the Wall Shop and Century Court. Around that time, according to the plaintiff, the Wall Shop had enlarged by extending into the Extended Portion (see [6] above).

14.  The evidence of the plaintiff in his witness statement on the circumstances of the extension of the Wall Shop into the Extended Portion consists of one paragraph, which I set out in full:

“In 1968, Shop F on the ground floor of City Centre Building was occupied by one Cheung Fung (張峰) running his business in the name of Cheung Fung Kee Shoes Shop (張峰記鞋店). At that time, since my father wished to expand the useable area of the Wall Shop, he thus had entered into an agreement with Cheung Fung (張峰) of Cheung Fung Kee Shoes Shop (張峰記鞋店) that the Wall Shop area was allowed to protrude into Shop F (by 1’ x 18’ by shifting the entire window panel wall back inside the shop F) in consideration of HK$2,000 paid by my father. Such an agreement was recorded in a document dated 15 September 1968 (which was exhibited in Annex 13 hereto) stating that:

‘茲收到

溫明開交來貳仟元正計為史釗域道十四号橫巷牆邊舖一尺乘十八尺物業價值.

割讓人 張峰

壹九六八年 九月十五日 立據’”.

15.  It is the plaintiff’s case that the Wall Shop (in its various extents at various times) had been in the exclusive possession of Wan Ming Hoi and his family since Wan Ming Hoi and Wong Choi Kam entered into and took possession in the early 1950’s. He refers to various matters evidencing the continuous exclusive possession of the Wall Shop by the family since the early 1950’s, including acts by the Government, utility companies, and the IOCCB, which all recognised the possession of the relevant area by Wan Ming Hoi and the family. I shall deal with the question of whether it was Wan Ming Hoi alone, or Wan Ming Hoi and his family, who had exclusive possession at Section C6 below.

16.  According to the plaintiff’s pleadings, in about December 1990, it was resolved at a family meeting that the plaintiff would take over the exclusive possession and/or the title of the Wall Shop completely as from January 1991. What the plaintiff says in his pleadings are as follows:

(1)  At [47] of the Re-Amended Statement of Claim:

“In about December 1990, it was resolved in a family meeting that the Plaintiff would take over exclusive possession and/or title of the Wall Shop completely starting from January 1991”.

(2)  At [20] of the Amended Reply and Defence to the 3^rd defendant’s Counterclaim:

“(6) Further, or in the alternative, the resolution at the family meeting in about December 1990 was recorded on a hand written document:

i. It was signed by Mr. Wan Ming Hoi (the Plaintiff’s father), Mr. Wan Kin Shing, Mr. Wan Kin Cheung, Mr. Wan Kin Hung (the Plaintiff’s brothers), and Ms. Wong Choi Kam (the Plaintiff’s mother) (who also signed on behalf of Wan Yuk Ngan’s interest if any – Wan Yuk Ngan being the Plaintiff’s sister).

ii. Wan Kin Fung migrated to Singapore since April 1990 and confirmed he would not share any interest in the Wall Shop (mentioned in inter alia an email dated 18^th December 1990). Wan Yuk Ngan got married and left the Wall Shop forever since getting married in 1979 and since then did not have any interest in the Wall Shop. She passed away in 1997. Wong Choi Kam had signed on behalf of her interest if there would be any.

(7) The resolution was:

i. To put on record that the Plaintiff had borrowed money from Mr. Wan Ming Hoi for purchasing his first property in 1982 jointly with Mr. Wan Kin Fung. Subsequently, the Plaintiff had paid for the purchase of the property in the name of Mr. Wan Kin Cheung to use as a dental clinic in 1986. (The principle was that the father helped the eldest son. The eldest son in return helped his younger brothers.)

ii. The Plaintiff would pay his mother HK$30,000.00 for all the existing stocks in the Wall Shop for her to retire.

iii. Mr. Wan Ming Hoi and Madam Wong Choi Kam would retire.

iv. The Plaintiff would take over forever the exclusive possession and/or title to the Wall Shop from January 1991 onwards.

v. The Plaintiff would help his younger brothers if they needed his help”.

17.  The pleaded case of the plaintiff is that the written document was kept at the family’s unit in City Centre Building but in about 2007 Wong Choi Kam discovered that the document had been lost after a refurbishment.

18.  In his witness statement, the plaintiff says that at the family meeting in December 1990:

“it was resolved, in accordance with the my father’s [sic] direction, that my wife (Leung Kit Fun), and I, together with our children to be born in the future, would succeed and take over the Wall Shop completely as from January 1991”.

That is, according to the statement, at Wan Ming Hoi’s direction (which suggests that the owner of the Wall Shop as at the date of the alleged meeting was Wan Ming Hoi alone: this is an issue to which I will return below) the Wall Shop was to be taken over not by the plaintiff alone, but by him and his wife and, if they were going to have children, by the children as well.[6] This is also what the plaintiff says during cross-examination (see [20] below). Putting aside the question of formalities and validity, the alleged intention was that the Wall Shop was given to the plaintiff and his own immediate family (i.e. his wife and children). This is not only at odds with the pleadings, which states that only the plaintiff was given the Wall Shop, but also with the fact that only the plaintiff is now seeking various reliefs in relation to the Wall Shop based on adverse possession, proprietary estoppel, acquiescence and laches, but not his wife or their three children. He seeks, for example, a declaration that

“The Plaintiff has acquired an absolute legal title of the Wall Shop …”,

and an order formally vesting the title of the Wall Shop in him alone.

19.  Notwithstanding his pleadings which pleads the discovery of the loss of the written agreement by Wong Choi Kam as a fact (and not simply that he was told by Wong Choi Kam that it was lost), in his testimony the plaintiff says he has a doubt whether the document has in fact been lost. He does not believe his mother who told him that the document had been lost.

20.  The plaintiff has been put to vigorous cross-examination by Mr Kenny Lin,[7] counsel for the 3^rd defendant, on this alleged agreement, to which I shall return. However, I note here that even though no written document is produced, the plaintiff, in the witness box, recalls the various paragraphs of this document as follows:[8]

[日期]

與溫健豐打了長途電話, 確認今次會議由 [Wong Choi Kam] 代表簽署.

溫玉顏由於是外嫁女, 其權益亦由[Wong Choi Kam] 代表.

按傳統俗例, 外嫁女不能繼承家庭資產.

父母已超過60歲, 在香港各弟兄應提供每月2000 元作為供養父母退休之用, 由於溫健豐旅居海外, 不需要承擔義務.

溫明鮮果牆舖將由溫健成家庭繼承.

溫明開, 溫健成, 溫健豐及溫健祥之間的貸款處理如下:
溫明開在1982年借給溫健成15萬買入新城大廈,與溫健豐聯名, 餘款由溫健成支付.
溫健成出資以溫健祥各義買入金軒商業大廈5樓B室作為溫健祥診所之用.
1986年 溫健成將新城大廈賣出套現.
1988年 溫明開付出大約36萬支付嘉華公司銀行欠款
溫健成應付18萬給溫明開.

簽字確認.」

The document was then signed by Wan Ming Hoi, Wong Choi Kam, the plaintiff and his two brothers.

21.  According to the plaintiff, under the alleged agreement, other than having to give Wan Ming Hoi HK$180,000, and although not written as such, as a condition for the Wall Shop to be given to his family, he had to give up his interest in the clinic at which his brother, Wan Kin Cheung, operated his dental practice. However, unless and until he obtains title to the Wall Shop (by which I take him to mean a declaration from the Court), he is still entitled to his interest in the property which had been used as the clinic.

22.  I have set out what the plaintiff says about this alleged agreement in his pleadings and in his witness statement at [16] and [18] above.

23.  According to the plaintiff, he and his wife did take over the possession of the Wall Shop as from January 1991 (but in his testimony he says that he and his wife and (at that time) their only son started to live in the Wall Shop from about 18 December 1990, upon their return from New Zealand, to where they had emigrated). They lived there for a few months before moving out to rented accommodation, but the Wall Shop continued to be used for various business purposes, with K Wah International Limited continuing to operate its business there, while a floral business was also started there (to which notice of interim valuation was issued by the Commissioner of Rating and Valuation in 1991). One of their sons would also stay there overnight on weekends and holidays. The plaintiff had since 1991 been responsible for the payment of rates for the Wall Shop. The plaintiff had also been paying the electricity and water charges for the Wall Shop since 1991, and had refurbished the Wall Shop on a few occasions. However, I note that the telephone bills were issued to Leung Kit Fun, who also signed as a contracting party a licence agreement which allowed the use of the Wall Shop for telecommunications purposes. Other bills regarding the Wall Shop were issued to K Wah International Limited. Further, in some documents to the Commissioner of Rating and Valuation, it was one of the three sons of the plaintiff who was named as an (and not the) owner of the Wall Shop, and in some other such documents another son was so named.

24.  On 27 August 2010, Wan Ming Hoi passed away. The schedule of assets and liabilities of the estate of Wan Ming Hoi did not include the Wall Shop. The plaintiff is not an executor of the will of Wan Ming Hoi.

25.  It is the plaintiff’s case that the paper titles of the four defendants to the areas occupied by the Wall Shop (or various parts thereof) had been extinguished by virtue of the plaintiff and/or Wan Ming Hoi and/or his family’s adverse possession. Further or in the alternative, the defendants are estopped from asserting their titles by virtue of proprietary estoppel and/or acquiescence and/or laches.

26.  The plaintiff asks for the following substantive reliefs:

“(1) A declaration that the 1^st, 2^nd, 3^rd Defendant and/or the 4^th Defendant’s paper title and ownership of the Wall Shop and/Extended Portion, and/or the part of City Centre Building’s external wall that is enclosed by the Wall Shop, and/or the Shop F window panels as shown in at Annex 1A and Annex 2A (the plan for the years 2007 to 2015) has been extinguished by virtue of adverse possession and/or proprietary estoppel and/or acquiescence and/or laches;

(2) The Plaintiff has acquired an absolute legal title of the Wall Shop and/Extended Portion, and/or the part of City Centre Building’s external wall that is enclosed by the Wall Shop, and/or the Shop F window panels as shown in at Annex 1A and Annex 2A (the plan for the years 2007 to 2015) by virtue of adverse possession and/or proprietary estoppel and/or acquiescence and/or laches;

(3) An order formally vesting the title in the Wall Shop and/Extended Portion, and/or the part of City Centre Building’s external wall that is enclosed by the Wall Shop, and/or the Shop F window panels as shown in at Annex 1A and Annex 2A (the plan for the years 2007 to 2015) in the Plaintiff;

(3A) A declaration that the owner of Shop F does not have any right in light nor any easement of light through the Shop F windows; alternatively that such right or easement (if any) has been abandoned and/or lost and/or impliedly released by the owner(s) of Shop F”.

B2.  The counterclaim

27.  The part of the Lane which belongs to the IOCCB is subject to a right of way for the owners and occupiers for the time being of Lot 2756-L, i.e. the lot on which Century Court was partly situated (“Right of Way”). This is not in dispute. It is, however, the plaintiff’s case that the Right of Way has been abandoned by the 3^rd defendant, which has also lost the right to authorise others to exercise the Right of Way. That is, the plaintiff says that he has acquired title to the Wall Shop free from the Right of Way. On its part, the 3^rd defendant counterclaims for an injunction restraining the plaintiff from preventing, obstructing or hindering it from exercising the Right of Way, as well as for possession of that part of the Lane owned by the 3^rd defendant on which the Wall Shop is situated, and the demolition thereof.

B3.  The earlier action by the IOCCB

28.  In 2006, the IOCCB commenced an action[9] (“the 2006 Action”) against Wan Ming Hoi (as the 1^st defendant there) and another person occupying another part of the Lane. According to the Re-Amended Statement of Claim of the IOCCB:

“3. At a date unknown to [the IOCCB], and in any event, before 1989, [Wan Ming Hoi] and/or his servants, workers or agents wrongfully and without the consent or approval of [the IOCCB] entered into a portion of the scavenging lane of the Building by erecting certain building works (“[Wan Ming Hoi’s] Building Works”) thereon and using, occupying the same as a store etc. therein. The said portion is coloured pink on the plan annexed hereto for identification purpose (‘Portion A’).

There followed claims in trespass, breach of the Building Management Ordinance[10] and the deed of mutual covenant of City Centre Building.

29.  In the Re-Amended Defence and Counterclaim of Wan Ming Hoi, originally dated 24 May 2006 and amended twice on 5 May 2008 and 7 July 2008, and which the plaintiff confirms to have been prepared according to his instructions alone and that he was in overall charge and control thereof (as Wan Ming Hoi had retired and was living in Macau):

(1)  The occupation of “Portion A” by Wan Ming Hoi and his family was pleaded. Adverse possession “by [Wan Ming Hoi] and his family members” was claimed. Acquiescence and laches were also pleaded.

(2)  In particular it was stated at [5]:

“(k) [Wan Ming Hoi] has been living, occupying and enjoying quiet possession in the wall shop as owners continuously for over 50 years;

(l) [Wan Ming Hoi] has paid the utility charges and rates incurred by the wall shop”.

(3) Then, at [9]:

“[Wan Ming Hoi] has expanded a lot of money in erecting the wall shop structure(s) and also in maintaining, daily cleaning and improving the same in the expectation that the wall shop and Portion A and the extended portion was his property”.

(4) Wan Ming Hoi’s counterclaim was as follows:

“20. By reason of the matters pleaded hereinbefore, [Wan Ming Hoi] is entitled to a possessory title of the Portion A and the extended portion.

AND [Wan Ming Hoi] claims:-

(1) a declaration that [Wan Ming Hoi] is entitled to a possessory title of the Portion A;

(2) a declaration that [the IOCCB’s] title to the Portion A is extinguished;

(3) an order vesting the Portion A in [Wan Ming Hoi]”.

It is to be noted that the alleged family meeting and agreement in December 1990 was not mentioned in the pleadings,[11] and, although adverse possession of “Portion A”, which is essentially those parts of the Wall Shop owned by the IOCCB, by Wan Ming Hoi and his family was mentioned, it was Wan Ming Hoi alone who was claiming, in 2006, a possessory title.

30.  By a consent order dated 30 August 2010, both the 2006 Action by the IOCCB against Wan Ming Hoi, and his counterclaim, were wholly discontinued.

B4.  Other matters regarding possession of the Wall Shop

31.  Further, in about February 2002, the plaintiff intended to make a complaint on some matters. He drafted a Chinese letter dated 13 February 2002 which was addressed to the parent company of the 3^rd defendant, copied to the IOCCB and Protech Property Management Limited (“Protech”), which had managed Century Court since 2001 and is a company affiliated with the 3^rd defendant. The letter was in the name of Wan Ming Hoi but signed by the plaintiff, who admits that he used the name of Wan Ming Hoi without his consent. In the letter, it was stated:

「本人 [meaning Wan Ming Hoi] 擁有寮屋登記四十五年」.

32.  I note that Protech replied by way of a letter dated 18 February 2002, addressed to Wan Ming Hoi. In it, Protech stated:

「本處重申未有對 閣下商舖是否合法進行質疑. 」

33.  The only witness called by the 3^rd defendant is Mr Liu, a senior property officer employed by Protech and who has been involved in the management of Century Court since Protech started doing so in 2001.

34.  In his testimony, Mr Liu confirms that Protech had been aware of the existence of the Wall Shop since 2001 and,

“given that the shop had been there for such a long time [Protech] would not make any particular complaint”.

Protech, according to Mr Liu, has never complained about, or demanded entry into, the Wall Shop. Mr Liu says that he was only aware that the Lane was separately owned by the IOCCB and the 3^rd defendant after the commencement of this action. Before that, he just considered the Lane to be a public scavenging lane which everyone could walk by.

C.  DISCUSSION

C1.  Adverse possession: the legal principles

35.  Regarding the general principles regarding adverse possession, I need to cite two authorities only. The first is the judgment of Nazareth NPJ[12] in Incorporated Owners of San Po Kong Mansion v Shine Empire Ltd:[13]

“The principles for the application of ss. 7(2), 17 and the associated provisions of the Limitation Ordinance are well settled. They were formulated and set out by Slade J in Powell v McFarlane (1979) 38 P&CR 452, approved by the House of Lords in JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, and adopted by this Court in Wong Tak Yue v Kung Kwok Wai (1997–98) 1 HKCFAR 55. Their application has not been disputed in these proceedings, and they have been relied upon by both parties. The authorities mentioned, not only approve those principles, but provide explanation of them and guidance in their application. Of particular relevance to dispossession are the following passages in Slade J’s judgment in Powell v McFarlane:

…

(2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (animus possidendi).

(3) Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances … acts of possession done on parts of land to which a possessory title is sought may be evidence of possession of the whole. Whether or not acts of possession done on parts of an area establish title to the whole area must, however, be a matter of degree … 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.

(4) … the animus possidendi involves the intention, 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.

…

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 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 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. (pp.470–472.)”

36.  The relevant provisions in the Limitation Ordinance[14] were set out, and the general principles on adverse possession were comprehensively reviewed, by Marlene Ng J in Lau Kwai Ping Joyce, the Executrix of the estate of Tsang Fung Ying (deceased) v Fulland International Ltd[15] as follows:

“13. The starting point is sections 7, 8, 13 and 17 of the LO:

‘7(2) No action shall be brought by any person to recover any land after the expiration of 20 [12] years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person. …….

8(1) Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

13(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of [the LO] any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall be deemed to accrue unless and until adverse possession is taken of the land.

17 Subject to the provisions of section 10, at the expiration of the period prescribed by [the LO] for any person to bring an action to recover land ……, the title of that person to the land shall be extinguished.’

To establish possessory title based on adverse possession, the squatter must be shown to have both factual possession of the suit lot and the requisite intention to possess (animus possendendi) for the whole of the relevant period.

14. Factual possession In Powell v McFarlane & anor, Slade J said as follows:

‘(3) Factual possession signified an appropriate degree of physical control. It must be a single and conclusive possession, …… The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. …… but broadly, I think 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.’

15. Possession must be single and exclusive, and the person in actual possession has effective control of the land. Lord Hope in J A Pye (Oxford) Ltd & anor v Graham & anor said as follows:

‘70. The general rule ……, is that only one person can be in possession at any one time. Exclusivity is of the essence of possession. …… Once possession has begun, …… his possession is presumed to continue. But …… it can …… be lost when it is given up or discontinued. When that happens, possession can be acquired by someone else. ……’

16. Permission/licence Possession is never adverse if it is enjoyed under lawful title, so if a person occupies/uses land under licence of the paper title owner, he is not in ‘adverse possession’ against the paper title owner. In Moses v Lovegrove, Romer LJ contrasted adverse possession with ‘permissive possession or possession as of right’, ie whether from the position of the occupier his right to occupation is derived from the owner in the form of permission, agreement or grant.

17. Period of possession A second squatter can rely on the period of possession of the previous squatter in addition to his own period of possession in order to complete the period for establishing adverse possession.

18. Intention to possess In Wong Tak Yue v Kung Kwok Wai & anor (No 2), the Court of Final Appeal said that:

‘As Nourse LJ pointed out in Bukinghamshire County Council v Moran [1990] Ch 623 at p.644, adverse possession can be described as ‘possession as of wrong’ and with limitation it is the intention of the squatter that is essential.

The requisite intention to possess has been referred to …… under its Latin tag “animus possidendi”. I shall refer to it simply as the intention to possess. As Slade J observed in Powell v McFarlane …… at pp 471-472, the intention to possess requisite for adverse possession:

… involves the intention, 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 process of the law will allow.’

This has several consequences: (a) the occupier must intend to exercise exclusive control for his own benefit but need not have a conscious intention to exclude the true owner, and it is enough that he intends to exclude the owner ‘as best as he can’ or ‘so far as reasonably practicable and so far as the process of the law allows’, (b) an intention to own the land or intention to acquire ownership is not required for establishing animus possidendi, and (c) animus possidendi can be established even if the occupier mistakenly believes himself to be owner of the land.

19. Burden of proof Both factual possession and intention to possess are questions of fact to be determined by assessing all the circumstances, including the inherent probabilities of the case. The burden of proof is on the party claiming adverse possession, and the evidence he has to adduce must be compelling. But it does not alter the standard of proof, and all it means is that the evidence adduced must be of such a quality/nature that, if accepted on the balance of probabilities, is sufficient to establish both factual possession and intention to possess. Slade J in Powell said at p 472 as follows:

‘…… where the question is whether a trespasser has acquired possession …… the courts will, in my judgment, require clear and affirmative evidence …… If [the occupier’s] 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.’ (my emphasis) (page 472)

‘…… I adopt the approach followed in Conway v Regan, an Irish decision to which Mr Wakefield, on behalf of the second defendant referred me. Black J said:

[……] When the acts are equivocal – when they may have been done equally with either intention – who should get the benefit of the doubt, the rightful owner or the trespasser? I think it should be given to the rightful owner.’ (page 478)

Thus, where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation, those acts of themselves will be insufficient to establish the intention to possess. But where the acts of physical occupation are unequivocal, ie the squatter ‘occupied the land and made full use of it in the way in which an owner would’, a squatter need not adduce additional evidence to establish the intention to possess after he has established occupation and use of the land in the manner as an owner would and in such a way that the owner is excluded. However, this does not mean there is any presumption of animus possidendi from exclusive physical possession, and the burden of proof that falls on the squatter to establish the requisite intention does not thereby shift.”

37.  Regarding the positions between the person with the legal ownership of the land on paper, person(s) in actual possession and the rest of the world, I refer to the following authorities:

(1)  In Nam Ching Wun v Tsun Un Pawn Shop,[16] DHCJ Marlene Ng (as she then was) said:

“The 2^nd effect of lapse of time against a sole true owner is that the squatter acquires a ‘possessory title’. As explained above, the LO does not transfer the dispossessed owner’s estate to the squatter. The squatter’s ‘possessory title’ is an independent title that stems from his possession of the land. On the principle of ‘property ownership’ and relativity of title discussed in paragraph 162 above, possession by itself gives good title against the world except someone having a better legal right to possession. Such ‘possessory title’ becomes impregnable after lapse of time because (a) as against the dispossessed owner, the dispossessed owner’s right/title is extinguished by virtue of the LO, and (b) as against strangers having no title to the land, the squatter’s possession is itself ‘title’. Thus, the operation of the LO in giving ‘possessory title’ is merely negative by extinguishing the right/title of the dispossessed owner, and leaving the squatter with a title gained by the fact of possession and resting on the infirmity of the right of others to eject him. So if the squatter’s possession is disturbed by a stranger (eg another occupier), the squatter’s possession is itself title and he can sue on the strength of his own possession. But if the stranger lays claim to the land by a title of his own or if he shows title in a third party through whom he claims, he can put the squatter’s title in issue”.

(2)  In Ng Tung v Grand Wayfair Investment Company Limited,[17] Lam VP[18] (as he then was) said:

“If the registered owners were not minded to disturb a squatter’s possession, it is not an abuse for a squatter to be contented with his possession for the time being. There is no duty on the part of a squatter to come to seek a declaration based on his adverse possessory title. Until the running of the full limitation period under the Limitation Ordinance, his possession is not perfect as it could be defeated by a claim for possession by the registered owner. However, his possession is still good against the whole world except the registered owner. Upon expiry of the limitation period, his possession cannot be defeated by the registered owner as the latter’s title is extinguished vis-à-vis the squatter. The possessory title of the squatter becomes indefeasible in that sense. A squatter does not need to seek a declaration to perfect his possessory title though such a declaration may serve as a proof of his possessory title for conveyancing purposes”.

(3)  In Ricas Properties Ltd v Armed Forces Trading Co Ltd,[19] HHJ Lok (as he then was) said:

“18. In this regard, it is trite law that a second squatter can add the period of possession of the first squatter to his own period of possession in order to complete the period of adverse possession (see: Ng Lai Sim v Lam Yip Shing & Anor (HCA 2963/1998, unreported), decision of P Cheung J, as he then was, on 22 November 1999). However in the present case, the Grandfather had acquired the right of an adverse possessor of the Land for a continuous period of 20 years prior to his death, and the Grandson himself had occupied the Land for a period less than 20 years when he granted the tenancy to the 3^rd defendant in 1999. In such case, can the Grandson still rely on the period of possession by the Grandfather in defeating the plaintiff’s title?

19. Mr Szeto, counsel for the plaintiff, argues in the negative. According to him, the right of the Grandfather had already crystallised at the time when he possessed the Land for 20 years. This was a right accrued to him personally, and so the subsequent squatter cannot rely on the period of his occupation with a view to defeat the plaintiff’s title. However, Mr Szeto frankly admits that there is no legal authority to support his proposition in this regard.

20. Despite his able submissions, I cannot accept Mr Szeto’s argument. In my judgment, there is no reason why the Grandson cannot rely on the period of the prior occupation by the Grandfather in asserting the right vis-à-vis the plaintiff. Assuming squatter A occupied the land for over 20 years and then squatter B occupied the land for, say, another 2 years, squatter B should then be able to rely on the period of previous occupation by squatter A in asserting his right vis-à-vis the paper owner. Squatter B, however, cannot assert the right vis-à-vis squatter A, unless squatter B occupies the land himself for a period of 20 years for the purpose of this case or 12 years under the existing statutory regime. As I see it, time started to run against the paper owner from the time when the adverse possession began.

21. Support for this proposition of the law can be found in the Privy Council’s decision in Sze To Chun Keung v Kung Kwok Wai David [1997] 2 HKC 231 …

24. This case clearly shows that squatter B, though in possession of the land for a short period of time, can rely on the occupation of the land by the previous squatter, squatter A, in dispossessing the paper owner. This is the case even if squatter A had occupied the land for more than 20 years. In the judgment of the Privy Council, Lord Hoffmann had expressly pointed out that at the time when the proceedings were commenced, the 1^st defendant had been in possession on his own account for only 2 years. Prior to that, the Crown had been in adverse possession of the land for over 20 years, and yet the 1^st defendant was able to rely on the previous occupation by the Crown in defeating a claim for possession by the paper owner. In fact, Lord Hoffmann said the following in the judgment:

‘At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiff’s right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The right inter se of the successive persons who may have been in possession adversely to the plaintiff since he was dispossessed are for this purpose irrelevant.’ (at p 235A-C)

Hence, the key is that the paper owner had already lost his right vis-à-vis all the squatters of the land in question after he was dispossessed for 20 years.

25. Further support for my reasoning can be found in the following passage in Megarry & Wade on the Law of Real Property, (6 Ed) at para 21-022:

‘(b) Squatter dispossessed by squatter. If a squatter is himself dispossessed the second squatter can add the former period of occupation to his own as against the true owner. This is because time runs against the true owner from the time when adverse possession began, and so long as adverse possession continues unbroken it makes no difference who continues it. But as against the first squatter, the second squatter must himself occupy for the full period before his title becomes unassailable. This has already been explained, but a simple example may be useful here. If land owned by A has been occupied by X for eight years and Y dispossesses X, A will be barred when 12 years have elapsed from X first taking possession. But although at the end of that time A is barred, X will not be barred until 12 years from Y’s first taking possession; for Y cannot claim to be absolutely entitled until he can show that everybody with any claim to the land has been barred by the lapse of the full period.’

(4) I also note what was said by Lord Diplock[20] in Ocean Estates Ltd v Norman Pinder:[21]

“At common law … there is no such concept as an ‘absolute’ title. Where questions of title to land arise in litigation the court is concerned only with the relative strengths of the titles proved by the rival claimants. If party A can prove a better title than party B he is entitled to succeed notwithstanding that C may have a better title than A, if C is neither a party to the action nor a person by whose authority B is in possession or occupation of the land”.

Thus, when one talks about someone having an “absolute legal title” in a particular piece of land, it must be understood in this sense, i.e. it means that no one in the world has, relatively, a better title in the land than that person. It is in this sense that I refer below to absolute legal title or ownership, which is a declaration which the plaintiff is claiming in this case.

38.  Based on the above cases, the position can be stated as follows:[22]

(1)  In a simple case where S1 is in possession of land without the authority of the person having the ownership on paper, O, and before the relevant limitation period[23] expires, only O, and no one else, can lawfully dispossess S1. As possession is good title against the whole world except the owner,[24] from the first day of his possession, S1 has a good possessory title which can be defeated only by O. That possessory title is derived from S1’s possession, and not from O.[25] Once O loses the right to dispossess S1 because the relevant limitation period has expired, and with his legal title extinguished,[26] S1’s possessory title becomes indefeasible by anyone in the world (including O), without the need for a declaration from the court, unless and until another person acquires an indefeasible possessory title against S1 himself in the same way. S1 has thereby become the “absolute legal owner” of the land in the sense explained above, i.e. no one in the world has a better title to the land relative to him, and no one can lawfully dispossess him.[27] It appears that S1’s ownership after the expiry of the limitation period against O is such that he cannot abandon it afterwards.[28]

(2)  But where there is another person (S2) who succeeds to S1 in the possession of the land, then one has to consider separately the situations where (a) S2 takes over possession before the relevant limitation period as against O expires; and (b) S2 takes over possession after the relevant limitation period as against O expires.

(3)  In a case where S1’s possession of the land is succeeded by another trespasser, S2, before the expiry of the relevant limitation period for O to recover possession, the possession of S1 and S2 can be tacked together to extinguish O’s title, unless there is a break in possession.[29] For example, using twelve years as the relevant limitation period, where S1 has been trespassing on the land for eight years and then S2 goes into possession and trespasses for another four years, O’s title is extinguished, because O has failed to take action to recover possession for the land for twelve years. As stated by Megarry and Wade and quoted by HHJ Lok in Ricas Properties,

“This is because time runs against O from the time when adverse possession began, and so long as adverse possession continues unbroken it makes no difference who continues it”.[30]

As far as O is concerned, it does not matter whether S2 has been let into possession by S1, for example under a lease or a licence granted by S1, or whether S2 dispossesses S1 himself (i.e. S2 is a trespasser himself vis-à-vis S1, who has a better title than S2), provided there is no break in adverse possession against O.[31] As far as O is concerned, as his title is extinguished after the relevant limitation period, and thus he longer has any right to dispossess S2, as between O and S2, the latter’s possessory title is indefeasible. However, as between S1 and S2, if S2 is let in possession by S1, S2 must yield up possession once the arrangements end according thereto, and in the meantime no limitation period runs as between them (unless S2 overstays without S1’s consent, in which case the relevant limitation period starts to run). If S2 goes into possession without the consent of S1, then unless S1 has abandoned his possession, S1 has a right to recover possession from S2 based on his own possessory title, until S1 himself is barred by the relevant limitation period as against S2, which starts to run against S1 as from the time S2 takes possession.[32]

(4)  But where S2 enters into possession after O’s title has been extinguished by S1’s adverse possession and the latter has become the “absolute legal owner” as explained above, S2 has a possessory title of his own, good against the whole world (including O whose title has been extinguished by S1’s possession) except S1. If S2 is let into possession by S1, then the possession of S2 is not adverse to S1, who does not have a cause of action to evict S2 as long as the authorisation remains, and the relevant limitation period never runs as between S1 and S2 (unless S2 overstays without S1’s consent, in which case the relevant limitation period starts to run). But where S2 is a trespasser as against S1, then S2’s possessory title is defeasible by S1 before the expiry of the relevant limitation period, which starts to run when S2 enters into possession without S1’s consent, and becomes indefeasible by S1 (nor by anyone else in the world) after the expiry of the relevant limitation period as against S1. Thus, as between S2 and O, S2 has a better title as soon as S2 enters into possession, as O, by then, having his title extinguished, is in no better position than anyone else in the world. But, as between S2 and S1, unless and until S2 obtains an indefeasible possessory title by having adverse possession as against S1 for the relevant limitation period, S1 has a title superior to S2 and S2 cannot, before the expiry of the relevant limitation period (if it runs at all) as against S1, obtain a declaration that he is the absolute legal owner generally (meaning to the exclusion of S1 as well). To repeat what HHJ Lok said in Ricas Properties:[33]

“Assuming [S1] occupied the land for over 20 years and then [S2] occupied the land for, say, another 2 years, [S2] should then be able to rely on the period of previous occupation by [S1] in asserting his right vis-à-vis [O]. [S2], however, cannot assert the right vis-à-vis [S1], unless [S2] occupies the land himself for a period of 20 years for the purpose of this case or 12 years under the existing statutory regime”.

That is, while S2 is perfectly entitled to claim a declaration that O’s title has been extinguished (with the result that O can no longer dispossess S2 by action), he is not entitled to a general declaration of absolute legal ownership because S1 has a better title, which cannot be defeated by S2 as long as S2’s possession is with S1’s consent, or not until the relevant limitation period as against S1 has expired if S2’s possession is not with S1’s consent.

(5)  A possessory title, whether before or after the expiry of the relevant limitation period as against the owner on paper, can be conveyed or transferred in the usual manner. If it is transferred before the expiry of the relevant limitation period, then the period continues to run as against the owner on paper as from the original possession by the transferor.[34]

C2.  The position up to December 1990

39.  Mr Harprabdeep Singh[35] for the plaintiff confirms that in so far as the claim in adverse possession is concerned, he is relying on the period from 1991 onwards only. He submits that since January 1991 the plaintiff has been in exclusive possession of the area occupied by the Wall Shop, which is more than sufficient when this action commenced on 16 February 2015, more than twenty years later. The facts relating to the position before 1991 are only relied upon by the plaintiff in relation to the question of abandonment of the Right of Way. He submits that I do not have to decide whether adverse possession had been successfully established by late 1990 as against any of the defendants (or their predecessors in title).

40.  I do not agree that the question of adverse possession before January 1991 is not important and not necessary to be decided, even given Mr Singh’s stance. Instead, in my judgment, the legal positions as between, on the one hand, Wan Ming Hoi and his family, and, on the other, the various paper owners (i.e. the defendants or their respective predecessors in title), as at December 1990, vis-à-vis the Wall Shop, are of critical importance, as what were such positions, and depending on what I find to have (or have not) happened at the alleged family meeting in December 1990, the legal nature of the plaintiff’s possession of the Wall Shop as from January 1991 and what rights if any he derives from such possession (assuming that I accept the plaintiff’s case of exclusive factual possession of the Wall Shop by him alone since January 1991) will be affected. In particular, since the plaintiff’s claim is primarily based on adverse possession since January 1991, assuming he did have exclusive possession of the Wall Shop since that time, the crucial question is against whom such possession is supposed to be adverse, if at all, and that can only be the person(s) who had a cause of action to recover the land from him,[36] namely person(s) who had a title which was superior to the possessory title of the plaintiff. As Mr Singh himself submits:

“what P has to prove is that before the commencement of the present action in February 2015, and starting from 1995 at the latest, P has been in continuous adverse possession of the Wall Shop Area for over 20 years”.

However, without finding who had the right to dispossess the plaintiff as from 1991 or 1995, how can I decide whether the possession was adverse?

41.  I find that sometime in 1989, Wan Ming Hoi and/or[37] his family had extinguished the titles of the paper owners[38] in the various parts of the Wall Shop save for Extended Portion B (which I shall called “the AP Parts”).[39] That is, the titles of the IOCCB and the 3^rd defendant (or their predecessors) at the AP Parts now occupied by the Wall Shop as shown on the Plan had been extinguished by December 1990 at the latest, when the alleged family meeting was supposed to take place, and Wan Ming Hoi and/or his family had an indefeasible possessory title as against them in those parts of the Wall Shop as indicated on the Plan, for the following reasons.

42.  I accept the evidence of the plaintiff, as set out at [11]-[13] and [15] above and find that Wan Ming Hoi and/or his family had been in continuous exclusive possession of the Wall Shop which, since at least 1969, was as shown on the Plan. That such possession has been without the consent of the IOCCB or its predecessors is evidenced by the 2006 Action itself (although no judgment has been handed down therein) and is not in serious dispute. That such possession is without the consent of the 3^rd defendant or its predecessors is also not disputed by the 3^rd defendant (and indeed it is counterclaiming for possession of the same). Whilst it is the case of the plaintiff that the exact area occupied by the Wall Shop had changed since 1952, his evidence, which I accept, is that the area occupied by the Wall Shop has remained the same since 1969 notwithstanding various works done. I find that during the period of 1969 to 1990, the Wall Shop was a permanent structure on the Lane, which was an enclosed area[40] the access to which was under the exclusive control of Wan Ming Hoi and/or his family, who used the Wall Shop exclusively for residential purposes (until 1974) and also for various business purposes of their own. Despite its small size, I accept the evidence of the plaintiff that it was in fact used as a residence of the Wan family, with electricity and water supplies at various stages being obtained from neighbours before the Wall Shop obtained its own independent supplies, and I do not accept the challenge of Mr Lin in this regard. I also accept the evidence of the plaintiff that Wan Ming Hoi did pay for all utility charges during this period.[41] It is also clear to me, and I find, from the various acts and conduct during the exclusive possession, that the necessary animus possidendi existed.[42]

43.  Mr Lin questions whether the plaintiff has shown that the area occupied by the Wall Shop has remained the same throughout the said period, or that it has remained, since 1969, as shown on the Plan now. He points to various works which the plaintiff says had been done at the Wall Shop and suggests that the area occupied must have varied from time to time. However, the evidence of the plaintiff, who can speak from his own personal knowledge regarding the position since 1969, is clear, and which I accept, in that the area occupied by the Wall Shop remains the same up to now, save for the making of a small dent in the middle made in about 2007. The various points made by Mr Lin, for example, that the installation and replacement of roller shutter gates must have affected the exact area occupied by the Wall Shop, have not been put to the plaintiff specifically, save the general point that the area had changed.

44.  In particular, the plaintiff has (before the Plan was prepared) prepared various plans himself, which he says he prepared based on available public records, as well as his own measurements and memory, showing the Wall Shop at different times. The one for the period 1969-1973 and the one for the period 1974-2006 are basically the same (the latter has an additional area attached to Century Court which is not in the Plan and not in issue here). While the plaintiff is not a professional architect or surveyor and so I will not take his plans as precise depiction of the area occupied, I accept the same as his evidence that the area occupied by the Wall Shop remained the same from 1969 to at least December 1990. The dent which appears on the plan for 2007-2015 prepared by the plaintiff does not appear on the Plan, but that is probably because, on the Plan, the dent would have been covered by the canopy. It also appears that a small triangular area in the southwest corner was set back in 2007 but that appears not to be part of the Wall Shop itself. Given the largely consistent dimensions given in the Plan and the various plans of the plaintiff, I find that the Plan represents the various areas or parts of the Wall Shop since 1969 up to its date (namely December 2017), save for the dent which was only set back in 2007. As the set back of the dent (which appears to cut across the central line of the Lane) appears to have taken place not before 2007, the titles of the IOCCB and the 3^rd defendant (or their predecessors) therein were also extinguished in 1989. That is, the dent is part of the AP Parts.

45.  In finding the extinguishment of the titles of the IOCCB and the 3^rd defendant (or their predecessors) in the AP Parts, I have not taken into account any possession before 1969, when the Wall Shop was moved to the present location. By then, even on the plaintiff’s own case, the relevant limitation period of twenty years had not expired, since the alleged possession by Wan Ming Hoi and/or his family commenced only after 1949, and with the shift of location some areas previously occupied had ceased to be so, whereas some other areas became occupied for the first time. Some areas probably remained occupied throughout. But there is no reliable evidence before me as to the exact locations and areas occupied before the shift in 1969.[43] There is therefore no basis for me to find any part of the Wall Shop on the Plan had been occupied or possessed before the shift in 1969, and the exclusive possession by Wan Ming Hoi and/or his family over the relevant areas, under the Wall Shop as indicated on the Plan, adverse to the paper owners for present purposes could only be found to have commenced in 1969, so that by 1989 the paper titles to the AP Parts had been extinguished.

46.  While the plans prepared by the plaintiff, which he annexes to his Re-Amended Statement of Claim, and on which he bases his claims, are not identical to the Plan, I do not find this to be an impediment to the grant of any reliefs to which he is otherwise entitled. The annexed plans serve as a general indication of the nature and extent of his claims which I find to be sufficiently accurate for the defendants to be able to respond adequately without any prejudice. While the declarations sought refers to the annexed plans, the wording can be adjusted accordingly.

C3.  Extended Portion B

47.  I shall explain why I exclude Extended Portion B from the AP Parts. The circumstances under which the Wall Shop extruded into Shop F in about 1968 or 1969 are stated at [6] and [14] above, which I find as facts.

48.  According to the land search record, the registered owner of Shop F in 1968 was Hip Hing Investment Company Limited (“Hip Hing”). There is no evidence on the relationship between Hip Hing and Cheung Fung, or whether the agreement between Cheung Fung and Wan Ming Hoi was made with the knowledge and consent of Hip Hing or any of the successors in title of Hip Hing, or whether Cheung Fung had any authority to make the agreement binding on the Hip Hing (or its successors in title). Simply because Cheung Fung was not the registered owner does not necessarily mean, as Mr Singh invites me to find, that the possession of a part of Shop F by Wan Ming Hoi was without the owner’s consent. The nature and effect of the agreement, by which Cheung Fung purported to “割讓” a part of Shop F to Wan Ming Hoi, is obscure. Certainly, as between Wan Ming Hoi and/or his family on the one hand, and Cheung Fung on the other, there was no question of adverse possession. Whether there had been adverse possession as against the registered owner of Shop F at any time is wholly unclear. For example, if Cheung Fung was in fact at the time a lessee of Shop F, then during the terms of his tenancy the owner might or might not (depending on the terms of the lease) have a cause of action to evict Wan Ming Hoi and/or his family: if it did not then the relevant limitation period did not run. If Cheung Fung did have a lease in 1968, it appears from the evidence of the plaintiff that it might have ended by 1970, as he says that in 1970 Shop F was occupied by a Dong Hing Restaurant. But there is no evidence of the relationship between Cheung Fung and Dong Hing Restaurant (or any subsequent owners/occupiers of Shop F). Of course the aforesaid are all speculation from me but the point is that without any evidence of the relationships between the registered owner at any one time, Cheung Fung, the occupier at any one time and Wan Ming Hoi and/or his family at various times since 1968, in relation to the use, occupation and possession of Shop F or Extended Portion B, there is simply no basis for me to find whether any person had any cause of action to claim possession of Extended Portion B against Wan Ming Hoi and/or his family, and if so when did the cause of action arise, and whether the relevant limitation period had expired by December 1990 (or even at the time when this action was commenced). Assuming that there was factual exclusive possession of Extended Portion B by Wan Ming Hoi and/or his family since 1969, and by the plaintiff since January 1991, there is simply no evidence for me to find whether the same was or was not with the consent of whoever was the registered owner of Shop F at the time. The difference between Extended Portion B and the rest of the Wall Shop is that there was some consensual basis for Wan Ming Hoi and/or his family to enter into possession originally, and it is not clear to me what has been the continuing effect (if any) of that consent. The denial of the 2^nd defendant, and the inaction of the 4^th defendant, do not thereby prove the plaintiff’s case.

C4.  The external wall enclosed by the Wall Shop (including the two sealed up windows of Shop F)

49.  Regarding the external wall, in Sunbroad Holdings Ltd v Unknown Occupiers,[44] Tang VP[45] (as he then was), following Leung Kwok Kau v Tam So Wa,[46] said:

“just as there could not be a lease of the surface of a wall, there could be no adverse possession of such surface”.

50.  Mr Singh argues that the present case does not just involve the surface of the external wall. He argues that since the Wall Shop consists of heavy steel framework attached to the external wall, there must have been attachments which penetrate the wall rather than the framework just resting against it. He refers to a judgment to that effect of Chief District Judge Ko in Chan Siu Cheung Henry v Cheung Wing Keung Peter.[47]

51.  However, in Chan Siu Cheung Henry, there was in fact expert evidence that the defendant’s stall was attached to the external wall by iron brackets, and thus the depth of the wall was engaged.[48]

52.  There is no such expert evidence in this case and I do not think that I can make the finding that there must have been penetration of the external wall by any means of attachment at any time. I have no evidence as to how heavy such steel framework must have been and whatever its weight the way to secure it. For example, does it have to be attached to the wall by nuts and bolts, or can it be secured by fastening it to the floor only? If the latter, then the claim for adverse possession of the external wall is not justified. Of course I am not making, and I cannot make, any findings in this respect, but am only making the point that Mr Singh’s submissions that there must have been some penetration without evidence are unsound.

53.  Further, in so far as possession of the external wall is said to arise by the means of attachments into the wall, what were/are the locations of the attachments, how deep were/are they, and was/is possession limited to those specific parts and to such depths? There is also no evidence of how long were any such attachments had been at each location.

54.  Assuming two windows did exist at the external wall which Wan Ming Hoi and/or his family did seal up, after sealing up, there could have been no adverse possession thereof as the window panels then simply became a part of the body of the external wall, and the same analysis above applies.

C5.  The canopy and the Orange Enclosed Space

55.  The plaintiff claims adverse possession of the canopy and the Orange Enclosed Space, relying on Tang Sau Lin v Youngfield Ltd.[49] However, there are difficulties in such a case.

56.  In relation to the canopy itself, it is not clear at all from the evidence as to when the canopy, or any canopy, was constructed at the Wall Shop. There is evidence that in 2006, the plaintiff was required by the Building Authority to set back the canopy, then attached to Century Court, to the central line of the Lane. That is, the canopy, in so far as it was overhanging the 3^rd defendant’s side of the Lane, was to be removed. The evidence of the plaintiff is that he did cut back the canopy himself personally by about two feet. However, according to the Plan, as at December 2017, a canopy still extended beyond the central line. In so far as any part of the canopy existing as at December 2017 was still hanging over the 3^rd defendant’s side of the Lane, it is not clear how long had it been there: was it before or after 2006?

57.  There is no evidence as to when the canopy depicted in the Plan, assuming that it was also there as at the date of the writ herein, was first constructed, and whether there was any break in between. If it had not been there for a continuous period of twelve years starting from 16 February 2003, then no claim for adverse possession based on the plaintiff’s own possession could be made herein. The only evidence referred to by Mr Singh in his closing submissions is the plaintiff’s witness statement that

“The Wall Shop had also undergone a structural alteration (such as reinforcement by steel framework) and had since developed the current outlook” (original emphasis).

58.  In my judgment, this is imprecise and I do not read it to include matters like a canopy. It is the plaintiff’s own evidence that the Planter was only constructed by him in 2013 but if the word “outlook” is meant to include something like the canopy it certainly would include something more permanent like the Planter. If “outlook” does not include the Planter, I see no reason to read it to include the canopy. The need to resort to such evidence in support of the case on the canopy is itself suggestive that the plaintiff’s case thereon lacks evidential foundation.

59.  As for the Orange Enclosed Space, there is no specific pleading or evidence of when it was first constructed. The photograph depicting the Orange Enclosed Space (i.e. Annex II) shows an angle equivalent to the triangular area set back in about 2007 according to the plaintiff’s own plans, and this suggests that the Orange Enclosed Space might only be constructed in 2007. Earlier photographs of the Wall Shop also do not show the Orange Enclosed Space. But I need not make any positive findings on this save to remark that the plaintiff has now shown by evidence as to when the Orange Enclosed Space was built.

C6.  Who had possessory title as at December 1990

60.  As to the AP Parts, while I find that, as from 1969, it was exclusively possessed by Wan Ming Hoi and/or his family, the question remains whether the exclusive possession was by Wan Ming Hoi alone, or by him jointly[50] with some or all of his family members from time to time, so that the possessory title, which became indefeasible by the paper owners after the expiry of the relevant limitation period, was with Wan Ming Hoi alone, or with Wan Ming Hoi and members of his family jointly. Since possession has to be single and exclusive, and the concept of exclusive possession connotes control over the land to the exclusion of the world including the paper owner, the question is whether the Wall Shop (including the AP Parts) was being exclusively controlled by Wan Ming Hoi solely, who in turn allowed his wife and children, and later K Wah International Limited, to use the Wall Shop as licensees, or whether the exclusive control and possession was exercised by all the family members jointly from time to time.

61.  According to the plaintiff’s own evidence, the Wan family is a traditional one, where a daughter who has got married (外嫁女) would have no right to family assets, and that a woman who marries into the family has an even lower status. On this basis, it seems that at all times, Wong Choi Kam would not have been intended to have any rights in relation to the Wall Shop, or intended to be in joint control and possession of the Wall Shop with Wan Ming Hoi (and/or other members of the family). However, there is no dispute that when a unit in City Centre Building was purchased in 1974 for the family to reside in, it was purchased in the joint names of Wan Ming Hoi and Wong Choi Kam, which is inconsistent with what the plaintiff says to be the family tradition, and a matter which he cannot explain.

62.  As for the children, when the Wall Shop moved to its present location in about 1969, the eldest one was 15 and the youngest one was three, and it seems to me unreal to say that in 1969, or at any time before that when the Wall Shop was at a different location on the Lane, that it was intended that any of the children was to have, or that they did exercise, control over the Wall Shop jointly with Wan Ming Hoi in the sense required. Thus, unless at some time later, for example, when each child came of age, then there was a change so as to include that child jointly with those already having such possession, it is difficult to see that at any time before December 1990 any children, including the plaintiff, had joint control and possession, instead of occupying the Wall Shop as permitted by Wan Ming Hoi (and possibly Wong Choi Kam). But there is no basis to make any such finding.

63.  The case of the plaintiff himself is equally unclear as to whether it was Wan Ming Hoi alone who had exclusive possession, or whether it was Wan Ming Hoi and his family members jointly (all emphasis in the quotes are added by me):

(1)  In his Re-Amended Statement of Claim, the following are stated:

“15. In the early 1950’s, Mr. Wan Ming Hoi entered into and took exclusive possession of the area occupied by the Wall Shop …

18. Then, sometime in the first half of 1954, Mr. Wan Ming Hoi and Madam Wong Choi Kam started to live in the Wall Shop overnight. Together, they continued their exclusive possession of the Wall Shop …”.

(2) The births of each child in 1954, 1956, 1959, 1961 and 1966 are pleaded, followed each time by the sentence:

“The family continued their exclusive possession of the Wall Shop”.

(3) The Re-Amended Statement of Claim then states:

“30. After City Centre Building was completed [in 1966], Mr. Wan Ming Hoi continued his exclusive possession of the Wall Shop …

32A. [After the change of the position of the Wall Shop in about 1969] … The family took exclusive possession of the Wall Shop and the part of City Centre Building’s external wall that was completely enclosed by the Wall Shop.

32B. [Regarding the two windows of Shop F that were sealed up around 1968/1969] … Since that time, the family took exclusive possession of those two windows …

33. The successive owners and occupiers of the Shop F at No. 14 Stewart Road never challenged Mr. Wan Ming Hoi and his family’s exclusive possession of the Extended Portion. Nor did any owners of City Centre Building challenge Mr. Wan Ming Hoi and his family’s exclusive possession of any part of the Extended Portion and/or the rest of the Wall Shop.

36. [Referring to the purchase of a unit in City Centre Building in 1974] … Before that date, Mr. Wan Ming Hoi and his family had already been in exclusive possession of the Wall Shop for over 20 years and they acquired title to the Wall Shop by adverse possession and/or proprietary estoppel and/or acquiescence and/or laches.

37. Further, or in the alternative, Mr. Wan Ming Hoi, Madam Wong Choi Kam and/or their children continued their exclusive possession of the Wall Shop.

64. … [The paper title] has been extinguished by virtue of the Plaintiff and/or Mr. Wan Ming Hoi and/or his family’s adverse possession …

65. Further, or in the alternative, the 1^st, 2^nd, 3^rd and/or the 4^th Defendants and their predecessors in title were aware of and acquiesced in the Plaintiff and/or Mr. Wan Ming Hoi and/or his family’s exclusive possession …

66. The Plaintiff has good title to the Wall Shop and/or Extended Portion, and/or the part of City Centre Building’s external wall that is enclosed by the Wall Shop, and/or the Shop F window panels by virtue of adverse possession and/or proprietary estoppel and/or acquiescence and/or laches”.

(4) In his Amended Reply and Defence to Counterclaim in relation to the 3^rd defendant, it is stated:

“14(3). By 10^th July 1974, the Plaintiff was already in possession and occupation of the Wall Shop together with Wan Ming Hoi and his family …

20(1). … by 10^th July 1974, Mr. Wan Ming Hoi and his family (including the Plaintiff) had already been in exclusive possession of the Wall Shop for over 20 years and they (including the Plaintiff) acquired title to the Wall Shop by adverse possession.

(4) Further, and in the alternative, the Plaintiff’s claim of proprietary estoppel is based on the Plaintiff’s and/or his family’s combined occupation and possession of the Wall Shop from 1952 onwards up to the date of the writ and/or the present date (the Plaintiff’s occupation and possession from January 1991 onwards)”.

(5) In his witness statement, the plaintiff says:

“9. … [In around July 1950, Wan Ming Hoi] has entered into and taken exclusive possession of a small piece of land in that private land since then …

29. The successive owners and occupiers … has never challenged my father and my family’s exclusive possession of the Extended Portion …

38. … [At the family meeting in about December 1990] … in accordance with the my father’s direction, that my wife (Leung Kit Fun) and I, together with our children to be born in the future, would succeed and take over the Wall Shop completely as from January 1991.

61 My father defended the 1^st Defendant’s claim in HCA 279 of 2006 by way of adverse possession (on the basis of the facts deposed hereinabove), laches, acquiescence and delay, by which the 1^st defendant’s paper title to the Wall Shop should be extinguished by virtue of section 17 of the Limitation Ordinance, Cap. 347. He counterclaimed for a declaration that (i) he should be entitled to a possessory title to the Wall Shop; (ii) the 1^st Defendant’s paper title to the Wall Shop should be extinguished; and (iii) an order vesting the Wall Shop to him.

64. Since my father’s entering upon and settling down in the Service Lane (in 1950’s) and extended portion (in 1968) which has been succeeded by me and my wife in early 1991 …

65. Since my father’s exclusive possession of the Wall Shop, no one (except the 1^st Defendant’s action HCA 279/2006 as noted in paragraph 60 above) has never come to claim possession and ownership of the same …

(6) I also refer to [28]-[29] and [31] above.

(7) During his cross-examination, the plaintiff says that, as at November 1990, i.e. just prior to a family meeting in December 1990, the owner of the Wall Shop was Wan Ming Hoi. He does not say that he, or any other member of the Wan family, was a joint owner with Wan Ming Hoi.

(8) The plaintiff’s written opening[51] and closing[52] submissions are also prepared on the basis that up to the December 1990 family meeting, it was Wan Ming Hoi who was in possession of the Wall Shop, which he abandoned in favour of the plaintiff. During his oral opening, Mr Singh also states that before 1991, Wan Ming Hoi was the sole possessor.

64.  It is not possible for me to resolve the question of whether the exclusion possession of the Wall Shop between 1969 and December 1990 was by Wan Ming Hoi alone, or by Wan Ming Hoi jointly with his family members (and even possibly K Wah International Limited). The only person before me who can shed light on this is the plaintiff, but his case and evidence is unclear and inconclusive. However, I do not think it matters in so far as extinguishment of the titles of the paper owners is concerned, as exclusive possession by different individual squatters or different joint squatters successively can be added together to “fill up” the relevant limitation period, and there is no need for one single squatter, or one single group of joint squatters, to have exclusive possession for the entire period. In my judgment, there is no doubt, and I find, that during the whole of the period from 1969 to December 1990, the Wall Shop was exclusively possessed as a matter of fact by Wan Ming Hoi and his family in the sense that use of and access to the Wall Shop at any one time was exclusively limited to Wan Ming Hoi and his family. Either the control vested solely with Wan Ming Hoi, or with Wan Ming Hoi and his family jointly. There is no basis to find, and I do not find, that Wan Ming Hoi and various members of his family were at any time exercising separate, several control or possession of the Wall Shop.[53] That is sufficient to extinguish the paper titles to the AP Parts. Within the family, whether it was Wan Ming Hoi who was in sole control, or there was joint control by him and some or all other members of the family, does not affect the question of extinguishment, but only to the question of who owned the possessory title to the Wall Shop, with the possessory title to the AP Parts having become indefeasible by anyone else by 1989. That may be Wan Ming Hoi alone, or Wan Ming Hoi and his family members. It is not necessary to resolve this.

C7.  Whether the plaintiff has “absolute legal title” of the AP Parts

65.  Wan Ming Hoi and/or his family having extinguished the titles of the IOCCB and the 3^rd defendant (or their predecessors) and became the “absolute legal owner” of the AP Parts in the sense as I explained above, no doubt the plaintiff, assuming that he has been in exclusive possession thereof by himself since January 1991 up to now as he alleges, can resist any claim for possession of the AP Parts by the IOCCB and the 3^rd defendant, the titles of which had been extinguished, but does it follow that he has then become the “absolute legal owner” of the AP Parts, as he prayed for in one of the declarations being sought?

66.  I note that the declaration the plaintiff asks for is a declaration that he has become the “absolute legal owner” of the relevant land. The use of the word “absolute” suggests that he is not seeking a declaration of the position just between him and the defendants. It may be that such a declaration binds the defendants only and not other persons not parties to this action, but nevertheless the use of the word “absolute” is liable to create confusion or misunderstanding.

67.  Applying the principles stated at [38] above, given my finding that as at December 1990 Wan Ming Hoi and/or his family had become the “absolute legal owner” of the AP Parts, if and in so far as the plaintiff is seeking to be declared as the current “absolute legal owner” of the AP Parts himself generally, the plaintiff needs to satisfy me that:

(1)  Wan Ming Hoi and/or his family has/have validly transferred ownership of the AP Parts to the plaintiff; or

(2)  The plaintiff has obtained an indefeasible possessory title against the world (including as against Wan Ming Hoi and/or his family) by way of adverse possession himself, from his own exclusive possession of the AP Parts since, as his claims, January 1991.[54] However, since as at January 1991 the titles of the IOCCB and the 3^rd defendants (or their predecessors) in the AP Parts had been extinguished, and it was Wan Ming Hoi and/or his family who had become the absolute legal owner, if the plaintiff is to obtain an absolute legal title himself by way of adverse possession, it has to be by way of possession which is adverse to Wan Ming Hoi and/or his family, and not against the IOCCB or the 3^rd defendant (or their predecessors). It is incorrect for Mr Singh to submit that

“As a result of P’s exclusive and continuous possession of the Wall Shop Area since January 1991 for more than 20 years, Ds’ titles to the Wall Shop Area were extinguished in 2011 through the operation of sections 7, 17 and 38A of the LO”.

In January 1991, the titles of the IOCCB and the 3^rd defendant (or their predecessors) in the AP Parts had already been extinguished. The plaintiff could not extinguish something which had already been extinguished and ceased to exist.

68.  In either case, the answer hinges on whether the agreement which the plaintiff alleges was made between members of the Wan family in December 1990 was in fact made, and if so what was its effect. However, as one can see, the two scenarios referred to in the preceding paragraph are inconsistent and mutually exclusive, in the sense that if the plaintiff went into exclusive possession of the Wall Shop because Wan Ming Hoi and/or his family did somehow validly transfer ownership to the plaintiff, there was no adverse possession. If Wan Ming Hoi and/or his family did not so transfer, then unless the plaintiff has shown that his exclusive possession was adverse to Wan Ming Hoi and/or his family with the necessary animus possidendi, he could not have extinguished the title of Wan Ming Hoi and/or his family and became the absolute legal owner himself.

69.  The difficulty, however, for the plaintiff is this. Despite the fact that the alleged agreement is pleaded in the first version of the Statement of Claim, and elaborated further in the first version of the Reply and Defence to Counterclaim as against the 3^rd defendant, and maintained in the subsequent versions, on his pleadings the plaintiff’s claim to an absolute legal title is based only on adverse possession, proprietary estoppel, acquiescence and laches, and not because he has validly succeeded to the title of Wan Ming Hoi and/or his family by transfer: see the reliefs claimed which I set out at [26] above. Indeed, Mr Singh has expressly confirmed that the plaintiff’s case rests upon his own adverse possession of the Wall Shop since January 1991. However, it is not the plaintiff’s case that he is claiming adverse possession as against Wan Ming Hoi and/or his family. That is, neither scenario is the plaintiff’s pleaded case.

70.  In any event, I do not accept the plaintiff’s evidence that an agreement regarding inter alia the Wall Shop was entered into in December 1990 between him and the other members of the Wan family, for the following reasons:

(1)  The plaintiff’s case is that the alleged agreement was reduced to, or was evidenced in, writing. The fact that the alleged agreement was reduced to, or was evidenced in, writing is not mentioned in the Re-Amended Statement of Claim and the witness statement of the plaintiff (although this is mentioned in the Amended Reply and Defence to Counterclaim in relation to the 3^rd defendant). The plaintiff’s explanation that when he used the word “resolved” in those documents, it is implied that the agreement was in writing. I do not find this convincing at all.

(2)  No copy of the alleged agreement is produced. The explanation by the plaintiff has changed. In his pleading he says, as a fact, that the document had been kept at the family home in City Centre Building but after a refurbishment in 2007, Wong Choi Kam discovered that it had been lost (not that he pleads that she told him that it had been lost). That is, the fact as pleaded, which the plaintiff verifies by a statement of truth, is that Wong Choi Kam discovered that the document had been lost. That the document had actually been lost is implicitly pleaded as a verified fact too. In his testimony, however, he says that he does not believe his mother when she told him that the written document had been lost (and that is why he does not mention the loss in his statement). The inference is therefore that his mother was lying to him, there was no discovery that the document had been lost, and she was deliberately concealing the document from him. He even says during cross-examination that they might be some conspiracy behind this. I cannot see any rational basis for her to do so, especially if, as he alleges in cross-examination, his mother and brothers are utterly not interested in this litigation. In the premises, there is no satisfactory explanation of why the alleged document is not produced before me.

(3)  The plaintiff’s explanation of why he never took and kept a copy of the alleged document, namely that there was no need to as he trusted his family, is incredible given the importance of the document, which he says were “clear guidelines” or an “important guideline”, was “very critical”, and which is the very foundation of his alleged ownership of the Wall Shop, and is at odds with the fact that the alleged agreement needed to be written down at all despite the alleged trust amongst family members. Indeed, the plaintiff says in cross-examination that it was he who initiated the family meeting, as well as the idea of setting out the agreement in writing (despite his earlier testimony that given the trust nothing in writing was needed): it is odd that, if that were so, that he did not even take the trouble to make and keep a copy for himself.

(4)  The plaintiff says in cross-examination that he last saw the document himself in 2006, when he was looking into the box file to see if there were documents which would be relevant to the defence of the 2006 Action. According to him, Wong Choi Kam told him that she discovered that the document had been lost sometime after 2007. Thus, according to the plaintiff, when he was looking into the box file in 2006, the document was still there and it is the plaintiff’s evidence that he did mention the alleged agreement in his witness statement (prepared in 2008) for the 2006 Action. Yet no copy of the document was provided to the solicitors then acting for Wan Ming Hoi under the plaintiff’s sole direction in 2006. The plaintiff’s explanation that he did not consider the document to be important enough for him to provide to the solicitors is in my judgment incredible, given the nature of the document, the issues that arose, and the fact that he did give instructions to the solicitors about the alleged agreement as it found its way to the witness statement. More importantly, the plaintiff says that he had an argument with the solicitors after they had “just received the action”, because he thought that he ought to be the defendant, not Wan Ming Hoi, because, inter alia, “I got the family agreement”. With that thought, how could the plaintiff have considered that he did not need to show the solicitors a copy of the document recording the family agreement? Indeed, he ought to, if the alleged agreement did exist. He did not, and as I said his explanation is not credible.

(5)  The plaintiff insists that because the family meeting in December 1990 was so important it was “burned” in his mind. Although he does not claim to remember what was written down word for word (nor do I expect him to be able to), what he says to have been agreed in substance in his pleadings are at variance with what he says during his testimony. See [16]-[18] above. Most importantly, while in his pleadings he says that he was to be given the Wall Shop, in his evidence (both written and oral) he says that the Wall Shop was to be given to him and his family. Indeed, his statement mentions his wife as a recipient expressly (although in his testimony he clarifies that to be his “interpretation” only). This part of the alleged agreement is of course absolutely the most crucial to the plaintiff in the context of this case, yet his own case and evidence are inconsistent. I do not think that the plaintiff has given any acceptable explanation to this glaring inconsistency. What he says during cross-examination is that because he is now claiming by himself, then he does not need to disclose that it was his family who was given the Wall Shop. While confirming in the witness box that under the alleged agreement it was his family that was given the Wall Shop, and being asked by me why does he put down himself only as the recipient in the pleadings, he says:

“…To answer that question is, well, I am having a case while I’m taking myself to claim … This is the action that I myself … This is the action that I claim against D3, all right? And regarding the context of the agreement, it is my family, right? But I – I do not need to disclose at that moment. I did not. I did not need to disclose that, well, actually I have that wall shop because subject to such and such conditions and also, well, this is my family and not only myself. I think, well, I am legally entitled to say that, particularly I – I am the main economical support of my family, right? So I – I do not see here is anything wring in – in making a statement based on …”

If that is the true explanation, that is a stark admission by the plaintiff that he would plead a matter which is, to say the least, misleading, if not downright false, just to suit his case. This is not merely not disclosing something. If this is what the plaintiff considers to be litigation tactics, that must be condemned in the strongest term.

(6)  Given his own evidence that his sister, a 外嫁女, had no right to family assets at all, he is unable to explain satisfactorily why she needed to sign, to be done by Wong Choi Kam on her behalf. The plaintiff’s explanation is that she had to sign to confirm that she had no rights, but if so why was it that his wife did not sign to confirm that, as the plaintiff alleges, she also had no rights (although this was contradicted by the plaintiff’s evidence that she was given a share of the Wall Shop, but if true this also suggests that she should sign)? Ultimately, the plaintiff says it was because everyone forgot about her, which frankly is utterly incredible. Further, it is the plaintiff’s evidence that that Wong Choi Kam would sign on behalf of the sister was agreed right at the start of the meeting, when the sister was still there and when no one knew that she would (as it turned out) leave before the conclusion of the meeting. Again the plaintiff is unable to provide any satisfactory explanation, save to insist that it was so agreed from the start and so recorded in the document.

(7)  I have pointed out at [61] above of the unsatisfactory aspect of the plaintiff’s evidence that according to the family tradition a 外嫁女 has no right to family assets at all and someone married into the family has an even lower status, which does not seem to apply to Wong Choi Kam. Rather confusingly and inconsistently, and I must say totally without any rational foundation, during cross-examination, he says:

“because my mother was a senior, so she is a senior position, by Hong Kong law she has the same right as my father”.

(8)  There is a further inconsistency between the plaintiff’s pleadings, where he says that Wong Choi Kam signed on behalf of the sister, with his testimony, where he says that Wong Choi Kam signed on behalf of the sister as well as the brother who was in Singapore. This inconsistency is not satisfactorily explained by the plaintiff, save to blame it on his solicitors who drafted the same. He says that he spotted the mistake in the draft pleadings, when the reference to Wong Choi Kam signing “on behalf of her interest” should have been a reference to “on behalf of his interest”, and informed the solicitors, which somehow failed to rectify in the final version. He then changes his evidence later in his cross-examination and says that the correct reference should be “on behalf of their interests”. However, he says when the pleadings was amended, he did not notice that the mistake had not been rectified, as he is not a very careful person. That is minutes after he says that he is a very careful person. Indeed, during his cross-examination, the plaintiff comes across as a very meticulous person, sometimes even overly pedantic as he often quibbles (most often unnecessarily) with words used by Mr Lin in his questions. I do not believe that the plaintiff would have overlooked the fact that the alleged mistake had not been corrected when he considered the amendments, if indeed that was a mistake which he had pointed out earlier. Further, his change of evidence midway through his evidence also makes one questions strongly whether he did give any instructions to his solicitors at all about the alleged mistake.

(9)  Reading his oral and written evidence together, the plaintiff’s wife was to be given, as part of the plaintiff’s family, the Wall Shop jointly with the plaintiff and their children. This is at odds not only with the pleadings (see [16] and (5) above) but also with the plaintiff’s own case that his wife’s status in the family is even lower than that of his sister who was a 外嫁女. The plaintiff says clearly during cross-examination that his wife had

“no right to touch on the subject of family asset”,

yet, inconsistently, she was to become a joint owner of the Wall Shop.

(10)  Some clauses of the alleged agreement he sets out during his testimony are not mentioned in his pleadings or statement, for example, that the quid pro quo for the plaintiff and his family getting the Wall Shop was that he was to give up his beneficial interest in the dental clinic (which in itself was not in the written document as the plaintiff recalls) but only if he is able to get a good title to the Wall Shop, and that he had to pay $180,000 to Wan Ming Hoi. These terms were “tied up” with the Wall Shop and as the plaintiff accepts in cross-examination such “tied up” clauses ought to be pleaded. While the plaintiff may have omitted to plead clauses clearly and expressly which are not immediately relevant to the Wall Shop, these conditions are relevant and it is difficult to see why he would omit them when he mentions others, less relevant clauses, in his pleadings. The plaintiff says that he does not mention these in the pleadings because what he has pleaded is sufficient to answer the 3^rd defendant’s pleadings. There is again not an acceptable explanation because as I said the plaintiff has pleaded some far less relevant clauses, and his suggestion that he has pleaded enough (he uses the term “partial disclosure” himself) is an indication that he is inclined to be economical about what is supposed to be the truth. Again, this is not confidence inspiring when one considers the plaintiff’s case and evidence.

(11)  Another term said in the pleadings to have been resolved at the family meeting itself and which is relevant to the question of Wall Shop is that the plaintiff was to pay Wong Choi Kam $30,000 for the stock of the Wall Shop, which he says he was taking over completely. Yet there is no mention of this in the statement, or when the plaintiff sets out the terms of the alleged written agreement. During cross-examination, the plaintiff says that he was reminded of this term by his brother in 2010. But if he was so reminded in 2010, so that he put this in his pleadings, then why did he not mention it at all in his statement and testimony given its relevance to the taking over of the Wall Shop? He even says that, when asked on this point, that he has “two versions of fact”. Given the plaintiff’s own case that what happened at the meeting was “burned” in his mind, it is incredible that he needed to be reminded by his brother about this, and when reminded he does not put it in his witness statement. It also appears odd that if there was indeed such an agreed term, it was not mentioned in the document according to the plaintiff.

(12)  On the other hand, a seemingly irrelevant clause such as the plaintiff should help his brothers if needed is pleaded. Again, there is no mention of this in the statement, or when the plaintiff sets out the terms of the alleged written agreement. There is again no acceptable explanation.

(13)  Because of his insistence that what happened at the meeting has been “burned” in his mind, the aforesaid problems with his evidence cannot be explained merely because of lapse of time, in particular on matters of a broader picture rather than minute details.

(14)  Thus, on the whole, putting all of the above together, the pleadings, and written and oral evidence, of the plaintiff on the alleged meeting and agreement have a number of inconsistencies and are most unsatisfactory. I am not satisfied that the plaintiff has shown on the balance of probabilities that the alleged agreement was made as alleged.

(15)  Apart from the points I made at (4) above, which concerns why the plaintiff did not provide a copy of the alleged agreement to the solicitors when it was still available, I take no account of the fact that in the 2006 Action, this alleged agreement was not mentioned in the pleadings prepared by the plaintiff on behalf of Wan Ming Hoi. Although the explanation by the plaintiff in this regard (namely tactical considerations of the solicitors acting) is hardly satisfactory, it is the plaintiff’s evidence that he did mention the alleged agreement in his witness statement there. Given that the statement is not before me by reason of the objection by Mr Lin, as a result of which the plaintiff withdraws his application to adduce the same, to hold against the plaintiff in this regard will not be fair to him.

71.  In the premises, even if there had been exclusive possession of the Wall Shop by the plaintiff since January 1991 up to now as he alleges, such possession cannot be explained by reason of the alleged agreement. On the other hand, without the alleged agreement, there is an evidential gap as to the basis and circumstances under which the plaintiff came to possess the Wall Shop exclusively. As the titles of the IOCCB and the 3^rd defendant (or their predecessors) in the AP Parts had been extinguished by Wan Ming Hoi and/or his family by December 1990, to get an absolute legal title himself, the plaintiff needs to craft out an indefeasible possessory title as against Wan Ming Hoi and/or his family, rather than as against those defendants, because, when the plaintiff commenced exclusive possession in January 1991 as he alleges, those defendants already had no right to sue him for possession. ^[55] But the question is, was the plaintiff’s possession with or without the consent of Wan Ming Hoi and/or his family? If it was, then there is no case for adverse possession. As Lord Browne-Wilkinson said in JA Pye (Oxford) Ltd v Graham:[56]

“36 … The question is simply whether the defendant squatter has dispossessed the paper owner by going into ordinary possession of the land for the requisite period without the consent of the owner.

37. It is clearly established that the taking or continuation of possession by a squatter with the actual consent of the paper title owner does not constitute dispossession or possession by the squatter for the purposes of the Act …”.

The principle is the same when one substitutes “absolute legal owner” such as Wan Ming Hoi and/or his family who acquired such ownership by way of adverse possession for “paper owner”.

72.  Mr Singh submits that the 3^rd defendant has produced no evidence to suggest that the plaintiff occupies the Wall Shop from January 1991 onwards with the permission or consent of Wan Ming Hoi as his licensee. However, with respect, in so far as the plaintiff is seeking a declaration of absolute legal ownership generally, which is to the exclusion of even Wan Ming Hoi and his family, the burden is on him to adduce evidence in support. The plaintiff has not discharged his burden of proving that his exclusive possession of the Wall Shop (assuming that to be the case) satisfies all the required elements of a successful claim in adverse possession as against the person who had by then become the absolute legal owner of the AP Parts, i.e. Wan Ming Hoi and/or his family, in particular, the lack of consent of Wan Ming Hoi and/or his family. His acts in relation to the 2006 Action and in correspondence with Protech (see [28]-[29] and [31] above), which were done on the basis that the exclusive possession of Wan Ming Hoi (alone) continued, are also at odds with any case of adverse possession against Wan Ming Hoi and/or his family. The explanations given by the plaintiff in cross-examination (basically all tactical or strategic considerations) are not convincing, and indeed involves the plaintiff willing to tell what on his current case are not the truth, just so to achieve whatever was his aim at the time. That hardly inspires confidence of this Court in the plaintiff as a witness.

73.  A declaration that the plaintiff has acquired the absolute legal title of the AP Parts generally has the additional difficulty in that the estate of Wan Ming Hoi, who on my findings was the absolute legal owner, or one of the joint absolute legal owners, of the AP Parts as at December 1990, has not been joined. Nor has any other family members, who may also be a joint owner, been joined herein. It is the plaintiff’s evidence that he had, through Wong Choi Kam, informed the executors of this action, but even if it was so I would have thought that the joinder of the estate (and other family members) is necessary. However, given my findings above this issue is academic.

74.  If and in so far as the declaration of absolute legal ownership in favour of the plaintiff is said to be a declaration as between the plaintiff and the IOCCB and the 3^rd defendant only, and binds the latter two and not generally, the use of the word “absolute” is inappropriate and liable to mislead.[57] In any event such a declaration, if it only relates to the positions between the plaintiff, the IOCCB and the 3^rd defendant inter se, is unnecessary given the declaration of extinguishment of the titles of the IOCCB and the 3^rd defendants (and their predecessors) in the AP Parts, and I decline to make such a declaration in the exercise of my discretion on this ground alone, irrespective of the other reasons herein.

75.  In the above analysis, I have assumed that since January 1991, the plaintiff has had sole exclusive possession of the Wall Shop. However, that may well not be the case. Quite apart from the fact that on his own evidence of the terms of the alleged agreement (which I reject), the Wall Shop was to be given to him and his family, there is evidence of usage by his wife and one of his sons, which may or may not be connote possession by them in the required sense. More importantly, apart from occasional residential use of the Wall Shop by one of his sons, it is the plaintiff’s case that the Wall Shop had been used for various business purposes, which he say he sought to put under the umbrella of K Wah International Limited, which was also the addressee of many bills issued in respect of the Wall Shop. If so, it may well be that K Wah International Limited, a separate legal person, has been in exclusive possession, or has been in joint exclusive possession. However, given the findings I made above, it is not necessary for me to find whether, since January 1991, the plaintiff had been in sole exclusive possession of the Wall Shop, or jointly with others. In either case, I decline to find that the plaintiff has acquired the absolute legal ownership of the Wall Shop (or the AP Parts) as prayed for.

76.  Mr Lin argues that, given the plaintiff’s own plea that by 1974 Wan Ming Hoi and his family had already obtained a title to the Wall Shop by adverse possession, the plaintiff does not have locus standi to make this present claim. By this, I understand the point is really that the various claims of the plaintiff have no merits rather than strictly a locus standi point, and which I have dealt with accordingly. There is no reason why the plaintiff cannot seek whatever declarations in relation to the Wall Shop that he wants: it is just that he fails on the merits regarding some of the issues.

C8.  Proprietary estoppel, acquiescence and laches

77.  The cases of proprietary estoppel, acquiescence and laches add nothing. By December 1990, Wan Ming Hoi and/or his family had become the absolute legal owner of the AP Parts, and the titles of the IOCCB and the 3^rd defendant (or their predecessors) in the AP Parts had been extinguished. Any estoppel, acquiescence or laches before that are immaterial, and any estoppel against, or acquiescence or laches by, the IOCCB and the 3^rd defendant, after that if at all are also immaterial as to whether the plaintiff has somehow acquired absolute legal ownership from Wan Ming Hoi and/or his family. There is no basis to find any estoppel, acquiescence or laches against Wan Ming Hoi and/or his family given the evidential gap I referred to at [71] above. Nor are they pleaded.

78.  For the same reasons that I reject that the case that Extended Portion B had been in adverse possession, with the answer to the question of knowledge and consent by the registered owner thereof from time to time unclear, there is no basis to find any proprietary estoppel, acquiescence and laches by the 2^nd or the 4^th defendants, or any of their predecessors in title, in Extended Portion B.

79.  As for the external wall of the City Centre Building enclosed by the Wall Shop, and the two sealed windows, again for the same reasons that I reject the plaintiff’s case on adverse possession, with possession thereof by Wan Ming Hoi and/or his family, or the plaintiff, not proven, they could not and cannot be any basis to find proprietary estoppel against, or acquiescence and laches by, the IOCCB. With no unauthorised possession of the external wall or the two sealed windows, there was nothing which the IOCCB ought to or could do, in so far as the external wall itself is concerned.

80.  As for the canopy and the Orange Enclosed Space, in the absence of any finding as to when the canopy and the Orange Enclosed Space as they were as at the date of the writ was first constructed, any case based on proprietary estoppel, acquiescence and laches is hopeless.

C9.  Right to light

81.  As to the question of the right to light of the owner of Shop F via the two sealed up windows, the allegation of the plaintiff that it does not have any such right is simply that there is no such grant either in the assignment when Shop F was first assigned to Hip Hing, nor is there such a grant in the deed of mutual covenant of City Centre Building. But an express grant is not the only way of a right to light to arise: it can, for example, arise by an implied grant.[58] I do not think that the plaintiff has ruled out before me all possible bases on which such a right could have arisen.

82.  As for abandonment, I note that in its Amended Defence, the 2^nd defendant asserts that Shop F did not have the two windows as marked by the plaintiff on his plans or at all. I am not sure if this assertion is made because when the 2^nd defendant took up ownership of Shop F (which according to the land search was sometime in 1991), the two windows had, as stated by the plaintiff, already been sealed up so the 2^nd defendant never knew that they existed. In such circumstances, it would appear to me that the 2^nd defendant, as the owner of Shop F as at the date of the writ herein, was not even aware of the existence of the two windows but which the plaintiff admits to have existed. The same can be said of any of the predecessors in title of the 2^nd defendant and which only took up ownership of Shop F after the windows were sealed up in 1969. However, the aforesaid does not matter because, if there was indeed such a right for the same reasons as I reject the case of adverse possession in relation to Extended Portion B, it is not possible for me to find the reasons and circumstances of the sealing up of the two windows and thus whether there has been any intention to abandon. I reject the plaintiff’s case in this regard.

D.  THE COUNTERCLAIM BY THE 3^RD DEFENDANT

83.  The remaining question is whether the Right of Way had been abandoned by the 3^rd defendant. The original existence of the Right of Way is not in dispute.

84.  As stated by Lord Chelmsford LC in Crossley and Sons Ltd v Lightowler[59]:

“The question of abandonment of a right is one of intention, to be decided upon the facts of each particular case”.

It is a question of the intention of the grantee (i.e. the 3^rd defendant or its predecessors here).

85.  In Gotobed v Pridmore,[60] Buckley LJ[61] summarised the law as follows:

“The benefit of an easement might of course be formally released by deed. There was ample authority to show that it might also be impliedly released where the conduct of the dominant owner was such as to manifest an intention to abandon the benefit of the easement. Mere abstinence from the use of an easement such as a right-of-way was, however, insufficient to establish such an intention: see Crossley & Sons, Ltd. v. Lightowler (1866), L.R. 3 Eq. 289, per Page Wood, V.-C. at p. 292; Ward v. Ward (1852), 7 Ex. 838, per Alderson, B.; and Swan v. Sinclair, [1924] 1 Ch. 254, per Sir Ernest Pollock, M.R. In Cook v. Mayor and Corporation of Bath (1868), L.R. 6 Eq. 177, the plaintiff was the owner of a house, the back door of which had been bricked up for about 40 years before the year 1864, when the plaintiff reopened and restored the door. In 1867 the defendants began certain works which threatened to obstruct the passageway or lane to which this back door gave access. Malins, V.-C., held that there had been no abandonment of a right-of-way from the back door over the lane in question. To establish abandonment of an easement the conduct of the dominant owner must, in their Lordships' judgment, have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement. The circumstances might, of course, be such that he was estopped from denying such an intention. Thus in Cook v. Mayor and Corporation of Bath, supra, Malins, V.-C., said at p. 179: ‘If in this case the defendants had commenced building before the back door had been reopened, I should have been of opinion that the plaintiff had, by allowing it so to remain closed, led them into incurring expense, and therefore could not prevent their acting on the impression that he intended to abandon his right.’ A further illustration was to be found in Moore v. Rawson (1824), 3 B. & C. 332. But abandonment was not to be lightly inferred. Owners of property did not normally wish to divest themselves of it unless it was to their advantage to do so, notwithstanding that they might have no present use for it. In James v. Stevenson, [1893] A.C. 162, it was held in the Privy Council that abandonment being a question of intention, non-user by the party asserting the right, coupled with user by the landowner for farm purposes of portions of the land subject to the easement while the easement was not required, could not prove abandonment of the entire right, and was inconclusive to prove a partial abandonment of it”.

86.  The law of abandonment was further summarised by Briggs LJ[62] (as he then was) in Dwyer v Westminster City Council:[63]

“10. The law on abandonment of rights of way is well settled, relatively straightforward, and was not in dispute before the judge. For present purposes it is sufficient for me, as it was for the judge, to take those principles from the summary in Gale on Easements (19 th ed) at paragraph 12-104, judicial approval for which the editors attribute to an unreported part of the judgment of Silber J in Odey v Barber [2006] EWHC 3109 (Ch) [2008] Chancery 175, at paragraph 103, which itself relies on an earlier edition of Gale:

‘(a) whether a person intends an abandonment is not a subjective question; it is always a question of fact to be ascertained from the surrounding circumstances whether the act amounts to an abandonment or was intended as such;

(b) abandonment depends on the intention of the person alleged to be abandoning the right of way as perceived by the reasonable owner of the servient tenement; to establish abandonment of an easement the conduct of the dominant owner must have been such as to make it clear that he had at the relevant time a firm intention that neither he nor any successor in title of his should thereafter make use of the easement;

(c) abandonment is not to be lightly inferred; owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it;

(d) non-user is not by itself conclusive evidence that a private right is abandoned; the non-user must be considered with and may be explained by the surrounding circumstances.’

11. To those principles it is only necessary to add, as the judge again did, that where the non-user is explicable by reference to the absence of any need of the owner of the dominant land to use the right of way for the time being, this will fortify a conclusion that there has been no abandonment of the right for all time: see Benn v Hardinge (1993) 66 P&CR 246, per Dillon LJ at 257”.

87.  In the present case, it is clear that as from 1969 the latest, that part of the Lane subject to the Right of Way but was covered by the Wall Shop had not been used by the 3^rd defendant or its predecessors. Nor is there any evidence of complaint or other action taken by or on behalf of the 3^rd defendant or its predecessors to indicate an intention of preservation of the right despite the non-use. As at the date of the writ, that was 45 years, which is quite a long period of non-use. However, mere suspension of exercise of the right, or non-user, is not sufficient in itself to prove the intention to abandon, and the question is whether in all the circumstances the non-user clearly indicates an intention of not resuming the user.[64] However, a long continued suspension may be an element to infer an intention against the grantee,[65] and render it necessary for the grantee to show that some indication was given by him during the period of non-user of his intention to preserve the right.[66] Thus, the long period of non-use and inaction by the 3^rd defendant and its predecessors is not in itself determinative, but is a consideration which I must take into account together with all the other relevant factors in the circumstances.

88.  In my judgment, there has been no abandonment of the Right of Way by the 3^rd defendant or its predecessors. An intention to abandon is, as the authorities stressed, not to be lightly inferred, and not from the lapse of time alone. To me, a very significant element in this case is the fact that there has been at all times an alternative means for the 3^rd defendant (and its predecessors) and their licensees for access, namely its own side of the Lane. The Right of Way is on the land of the IOCCB (or its predecessors) longitudinally and so the 3^rd defendant (and its predecessors) does not need to use the Right of Way for any purpose save to go from one end of the Lane to the other, which can be achieved by walking along the 3^rd defendant’s own side of the Lane.[67] As Mr Liu says, he could walk freely across the Lane. The absence of a need to use the easement in question during even a lengthy period of time suggests to me that the non-use during the period is not indicative of an intention to abandon. While it may be that the 3^rd defendant (or its predecessors) had done nothing in the meantime to indicate that they intended to preserve the right, the absence of the need to use suggests that such positive acts are not to be expected even in a case of non-abandonment. In Benn v Hardinge,[68] non-use for 175 years was found not to support a conclusion of abandonment because there were other means of egress.

89.  Mr Singh relies on what he says was acquiescence by the 3^rd defendant (or its predecessors) in that they stood by and allowed the Wall Shop to be constructed and used and obstructing the use of the Right of Way. However, the question is not so much whether there was acquiescence, but whether the facts and circumstances said to give rise to a case of acquiescence indicate, in all the circumstances, an intention to abandon. But if there had been no need to use the Right of Way because of the alternative means of access, one cannot infer from the facts and circumstances relied upon by Mr Singh that there has been an intention to abandon by the 3^rd defendant (or its predecessors). I echo the sentiment expressed by Stuart-Smith LJ[69] in Snell & Prideaux Ltd v Dutton Mirrors Ltd:[70]

“There is, in my judgment, a further reason why the court should not lightly infer an intention to abandon rights for all time from acquiescence by the owner of the dominant tenement in acts of the servient owner, which make it difficult or impossible to exercise those rights at a time when the owner of the dominant tenement does not have any need to do so. It is this. As a matter of good neighbourliness, an owner of land may well permit his neighbour to make use of the servient tenement for the time being. The dominant owner does not have any present need to exercise his rights and it is a convenience to the servient owner to store materials or vehicles, to erect machinery or structures for his business. It would, I think, be undesirable, if this generous and good neighbourly conduct could not be indulged in for fear of losing for all-time rights, which at that moment the dominant owner has no need or wish to exercise. No doubt, it must be a question of degree. The erection of a house or other substantial and permanent building, which completely defeats the right if acquiesced in by the dominant owner, would be taken as a clear indication that the right was being abandoned. But if the obstruction can be removed, albeit at some inconvenience and expense to the servient owner, the court should, in my judgment, be slow to infer that acquiescence in its existence is sufficient to amount to evidence of intention to abandon for all time the right”.

90.  There having been no abandonment, there is no basis to reject the counterclaim of the 3^rd defendant in so far as the Right of Way is concerned. I allow it.

91.  The counterclaim based on the alleged trespass of the AP Parts owned by the 3^rd defendant (or its predecessors) is dismissed as its title thereto was extinguished as from 1989. Its counterclaim in relation to the trespass by the plaintiff on the other parts of land owned by it, i.e. the Planter, and the part of the canopy and the Orange Enclosed Space overhanging the Lane is allowed, there being no real dispute from the plaintiff that he is in possession thereof (either alone or jointly with others) without the 3^rd defendant’s consent.

E.  DISPOSITION

92.  I allow the plaintiff’s claim only in so far as he seeks a declaration that the titles of the IOCCB and the 3^rd defendants in the AP Parts have been extinguished. I otherwise dismiss the plaintiff’s action.

93.  I allow the 3^rd defendant’s counterclaim for a declaration that it is entitled to exercise the Right of Way, an order for vacant possession of land owned by it and possessed by the plaintiff apart from the AP Parts, and an injunction as prayed for under paragraph (4) of the prayer for relief in its counterclaim. There is a claim for damages but as no evidence of loss or damage is adduced I dismiss the same.

94.  The parties are to agree the actual wording of the reliefs to be granted to the plaintiff and the 3^rd defendant, failing such agreement within 28 days of the date of this Judgment any party has liberty to apply.

95.  The plaintiff has partially succeeded in obtaining a declaration against the 3^rd defendant, and has resisted the counterclaim in so far it relates to the AP Parts owned by the 3^rd defendant. I make an order nisi that the plaintiff is to pay 80% of the costs of the 3^rd defendant of the action and of the counterclaim, including all reserved costs (if any), with certificate for two counsel, to be taxed if not agreed. I also make an order nisi that the plaintiff is to pay the costs of the 2^nd defendant, including all reserved costs (if any), to be taxed if not agreed. Also on a nisi basis, there is no order as to costs between the plaintiff, the IOCCB and the 4^th defendant.

96.  I direct that the solicitors for the plaintiff do serve a copy of this Judgment on each of the IOCCB and the 2^nd and the 4^th defendants at their respective registered offices within seven days from the date of this judgment.

97.  I thank counsel for their assistance.