LI CHI FAI v. LI WAI KI

DCMP1322/2002

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1322 OF 2002

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JUDGMENT

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1. This action was commenced by the Plaintiff under Order 113 of the Rules of District Court on 9 May 2002. By consent of the parties, Acting Registrar Chow ordered this action to continue as if by writ under Order 28 Rule 8. Subsequently, pleadings and witness statements were filed.

2. By this action, the Plaintiff claims against the Defendant for the delivery of vacant possession and mesne profits of the premises on the 1st Floor and roof of the structure erected on Shek O Inland Lot No. 31 (hereinafter referred to as "the suit premises").

3. The Defendant counterclaims for a declaration that the Plaintiff is holding half of the beneficial and proprietary interests of Lot No. 31 on trust as the constructive trustee of the Defendant and his late brother Li Chau Tak.

Background

4. The Plaintiff is the natural and lawful son of Li Kau deceased who died in New York, U.S.A. on 29 May 1957. Upon the grant of letters of administration on 26 April 1980, the Plaintiff became the administrator of the estate of Li Kau deceased.

5. The late Li Kau（李九）had two younger brothers Li Ngau（李牛）and Li Yeung（李羊）born of the lawful union between Li Fu Wing（李富榮）(hereinafter called "Grandfather Li') and Chan Yuet Mui（陳乙妹）(hereinafter called "Grandmother Chan") who were indigenous inhabitants of Shek O Village.

6. The Defendant is the younger son of Li Ngau（李牛） brother to Li Kau（李九） and a sister born of the lawful union between Li Ngau and Wong Kau Mui（王九妹）(hereinafter called "Madam Wong"). The Defendant's elder brother Li Chau Tak passed away in December 2001.

The Plaintiff's Case

7. The property under dispute in Lot No. 31 is a village-type house of 2 storeys consisting of the ground floor, first floor and roof. From Land Registry records, Lot No. 31 was formerly part of Shek O Inland Lot No. 5, which was held by one Li Fat and Li Kau as tenants-in-common under a government lease of 75 years from 17 June 1936 (see pages 1-6 of Bundle III). On 5 June 1939, the said Shek O Inland Lot No. 5 was apportioned into Shek O Inland Lot No. 5 and Shek O Inland Lot No. 31 by two Crown leases of the same date, both leases were granted to Li Fat and Li Kau as tenants-in-common in equal shares with a Crown rent of $6 annually for each lot (see pages 11-17 and 18-26 of Bundle III).

8. Documentary evidence shows that by an assignment dated 23 February 1933, the said Li Fat and Li Kau purchased as tenants-in-common in equal shares the residue of the term of 999 years from 1 April 1841 a piece or parcel of land situate at Shek O registered in the Land Office as Shek O Lot No. 1459 from one Keung Sin of Shek O for the consideration of $100. The said assignment was registered as memorial No. 136257 (see pages 7-8 of Bundle III).

9. A further deed produced by the Plaintiff registered as memorial No. 155588 is the Deed of Surrender dated 29 September 1937 under Condition of Exchange No. 3694, whereby in consideration for the exchange of a new lot to be registered as Shek O Inland Lot No. 5, Li Fat and Li Kau agreed to surrender the piece or parcel of land registered in the Land Office as Shek O Lot No. 1459 (see pages 9-10 of Bundle III).

10. The Land Office search record dated 11 November 2002 supports the aforesaid though the sale of Shek O Lot No. 1459 by Keung Sin to Li Fat and Li Kau was only mentioned under "remarks: assignment", the memorial number of the registration namely '136257' matches the registration number of the assignment marked on the Deed on p. 7 of Bundle III (see page 5 of Bundle III).

11. On 24 January 1973, the son and heir of Li Fat, Li Sum Hoi, obtained probate of the estate of Li Fat who passed away on 30 January 1971. On 26 April 1980, the Plaintiff obtained Letters of Administration of his late father Li Kau's estate, Li Kau having passed away in New York, U.S.A. on 29 May 1957. Both the estates of Li Fat and Li Kau as disclosed in the estate duty schedule of property annexed to the grant of Probate and Letters of Administration consisted of Shek O Inland Lot Nos. 5 and 31. It was not until 21 November 2000 that the said Li Hoi Sum and the Plaintiff executed a Deed of Exchange that each exchanged to the other the half share interest in Shek O Inland Lot Nos. 5 and 31 for a full share in Shek O Inland Lot No. 5 for Lee Hoi Sum and Shek O Inland Lot No. 31 for the Plaintiff.

The Plaintiff's Case

12. It is the Plaintiff's evidence that his father, the Defendant's father Li Ngau and Li Yeung were blood brothers. His father and Li Ngau were seamen and went to sea in the 1920's. Later, they both settled down in the U.S.A. and worked as waiters. His grandparents were Shek O indigenous inhabitants and his grandfather Li Kwai Fu (Lei Kwai Fu) alias Li Fu ("Grandfather Li") passed away on 22 September 1926, while his grandmother, Chan Yuet Mui ("Grandmother Chan"), passed away in 1959.

13. The Plaintiff's mother Chung Ah Tai gave birth to him on 14 December 1931 and his younger sister Lei (Li) Lin Fung on 2 October 1934. His mother passed away in Hong Kong on 5 October 1938, leaving he and his sister to the care of Grandmother Chan while his father was working in the U.S.A.

14. It is the Plaintiff's evidence that Grandmother Chan was in charge of the family finances ever since he could remember until her death in 1959. The family at the time consisted of Li Ngau's wife and Li Ngau's three children, Li Yeung and his wife, his mother, he and his sister all lived with Grandmother Chan at No. 54B Shek O Village (also known as Nos. 421-423). It was a wooden hut (hereinafter referred to "No. 54B hut") that the family had originally used for storage of hay built on Crown land when the family lived at Shek O Upper Village by the coast of Shek O. Construction of the suit premises at Lot No. 31 completed in or about 1937-1938. He recalled his mother passed away soon after the family had moved into the new house erected on Lot No. 31 in 1938. Grandmother Chan was in charge of the household and the family had relied on remittances sent back by Li Kau and Li Ngau who had by then settled down to work as waiters in the U.S.A.

15. During the Japanese Occupation of Hong Kong in 1941, the remittances from Li Kau and Li Ngau stopped and the family was in financial difficulties. There were generally insufficient food to go round. At that time, Grandmother Chan decided that the household should be split up（分家）and each nucleus family would be responsible for feeding their own members.

16. Due to the shortages of food, the Defendant's mother Madam Wong Kau Mui in 1944 decided to take her children back to her family village in Mainland China where the living was easier and food could be found. She took the Plaintiff's sister Lee Lin Fung with her to ease Grandmother Chan's burden. According to the Plaintiff, he felt he had been indebted to Madam Wong for her kindness ever since, though within a matter of months, the war was over and they had returned to Shek O.

17. It is the Plaintiff's evidence that during the Japanese Occupation, when Grandmother Chan decided to split up the family（分家）, the family of Li Ngau and Li Yeung had moved back to the hut at No. 54B from the ground floor of Lot No. 31. Meanwhile, the Plaintiff, Grandmother Chan and the Plaintiff's sister remained on the 1st floor of Lot No. 31. After the Japanese Occupation ended in August 1945, Grandmother Chan decided to move back to the No. 54B hut and resumed living together with Li Ngau's family. By that time, the family had reduced in size as Li Yeung and his wife had been killed during the Japanese Occupation.

18. Grandmother Chan, in order to supplement the family income, had since 1945 until her death in 1959 let out Lot No. 31 ground floor and 1st floor to tenants. It was about this time that the ground floor was let to a Cantonese opera actress by the name of Ho Fu Lin and the 1st floor to a man of some wealth called Lee Sai Wah.

19. The Plaintiff insisted that upon his father's death on 29 May 1957 and before her death in 1959, Grandmother Chan had handed over the Crown lease in respect of Lot No. 31 to him for his custody. Further, he had taken over possession of the building on Lot No. 31 and continued to rent it out to various tenants. He claimed that in or about 1960, at the request of his aunt the said Madam Wong (Li Ngau's widow), and out of his gratitude to her, he consented to Madam Wong's taking over the rental of the 1st floor of Lot No. 31 on condition that she would be responsible for the building's management, upkeep and payment of all outgoings including rates and Crown rent.

20. It is the Plaintiff's evidence that in the 1950's and 1960's, his sister got married and he too had also moved out of the No. 54B hut to pursue their own separate lives leaving his Aunt Madam Wong and her family members to occupy the No. 54B hut to date. Sometime in the early 1980's, Madam Wong had proposed to add an extension on the roof of Lot No. 31 to enhance the 1st floor rental income. He consented to it but suggested to her that she should apply the rental income from the 1st floor for such building purpose.

21. The Plaintiff claimed that after Madam Wong's death in 1987 he had entered into a similar arrangement with his cousin Li Chau Tak, the eldest son of Li Ngau and Madam Wong and elder brother to the Defendant. Li Chau Tak had passed away in December 2001.

22. The Plaintiff claimed that the Defendant had wrongfully entered into possession and occupied the 1st floor and roof of Lot No. 31 without his consent since October 1994 after the last tenant vacated the premises.

The Defendant's Case

23. The defence's pleaded case is completely different from the Plaintiff's. The defence claimed that Lot No. 31 was allotted to their grandfather the late Li Kwai Fu in the relocation from the land their ancestors occupied by the coast of Shek O to make way for the Shek O Golf Course.

24. In his witness statement, the Defendant, Li Wai Ki (DW1), claimed that Grandfather Li had built a shed on Shek O Inland Lot No. 31 and the family had lived there ever since the relocation from the coast. That at about the same time, the said Li Fat had been allotted an adjoining lot Shek O Inland Lot No. 5. The Defendant further claimed in his witness statement that he was told by Grandmother Chan, that in the mid 1930's, Li Kau and Li Ngau had wanted to improve the living conditions of the family and built a 2-storey concrete stone hut at Lot No. 31. They borrowed a loan from the said Li Fat who had successfully established a Chinese restaurant business in Philadelphia in the U.S.A. (hereinafter called "the loan").

25. According to the Defendant, the loan from Li Fat carried the following conditions:-

(a)	Li Fat would provide all the requisite funding for the erection of the stone hut at Lot No. 31;
(b)	any outstanding sum was to be repayable, by way of instalments, by the 2 brothers jointly to Li Fat until such time the loan was cleared off;
(c)	by way of security, Li Fat would have a 50% share of Lot No. 31 and be registered as a tenant-in-common in equal share together with Li Kau; and
(d)	upon the discharge of the loan, Li Fat would undertake to relinquish all his interest in Lot No. 31 and cause the same to be transferred to Li Kau.

26. The Defendant alleged that Grandmother Chan told him there were some mistakes made by the solicitors in the registration of titles of Lots Nos. 5 and 31 resulting in both the names of Li Fat and Li Kau appearing as tenants-in-common in both Lots Nos. 5 and 31.

27. The Defendant further claimed that according to Grandmother Chan, both Li Kau and Li Ngau had sent regular remittances to Li Fat for the repayment of the loan until it was discharged. That the intention of the two brothers was that each would hold a 50% share of Lot No. 31. Further, due to traditional Chinese Customs, the eldest male heir would as of right acquire the authority, privilege and status over the younger members of the family. For that reason Lot No. 31 was registered in Li Kau's name only together with Li Fat.

28. It is also the Defendant's case that he was informed by Grandmother Chan that the loan was discharged and upon discharge, Li Fat had passed the Crown lease of Lot No. 31 to Grandmother Chan. It was in Grandmother Chan's custody up to her death and thereafter the Defendant's mother Madam Wong had taken custody of the Crown lease. Subsequently, in the early 1980's, the Plaintiff came to see the Defendant, his elder brother and their mother Madam Wong. He proposed to apply for the probate of his late father's estate and he needed funding for the purpose. The Plaintiff promised to vest the property in the name of himself, the Defendant and his elder brother as tenants-in-common upon obtaining probate. It was on this basis that the Defendant and his elder brother contributed $10,000 to the Plaintiff and Madam Wong had also handed over the title deeds of Lot No. 31 to the Plaintiff. To date, the $10,000 had not been repaid nor had Lot No. 31 been vested in anyone's name but the Plaintiff's.

29. It is the Defendant's case that his whole family had lived in both the ground floor and first floor of Lot No. 31 until the mid 1950's when Grandmother Chan let out the ground floor to a Cantonese opera singer Ho Fu Lin. The whole family then continued to reside on the 1st floor until Grandmother Chan passed away in the early 1960's. He agreed the Plaintiff took over the rental of the ground floor and kept all the rental proceeds. It was Defendant's recollection that the Plaintiff had resided on the 1st floor of Lot No. 31 until the mid 1960's when he left to work as a secretary of a workers' organisation in Kowloon. Thereafter, the Defendant's family had little contact with the Plaintiff. He denied there were any agreement or arrangement as to Madam Wong keeping the rental of the 1st floor or the extension of the roof. He claimed that Madam Wong, the Plaintiff's sister, he and his wife whom he married in June 1966 were living on the 1st floor of Lot No. 31 until sometime in 1968. Thereafter the 1st floor was let out to tenants for income while Madam Wong, he and his wife moved to the No. 54B hut (No. 421-423 Shek O Village). The rental income of 1st floor was shared between his elder brother and himself. He claimed the rates and Crown rent were settled by the Defendant and his elder brother and the Plaintiff would reimburse the Defendant and his brother half of these outgoings. This continued until mid 2000.

30. The Defendant and his two sons moved back to the 1st floor of Lot No. 31 in 1994 after the last tenant left. The Defendant claimed he had accounted to his elder brother a monthly rental share of $6,000. This sum was reduced to $4,500 from January 2002, it was paid to the widow of Li Chau Tak, the Defendant's elder brother.

31. The Defendant claimed that he and the estate of his elder brother Li Chau Tak are jointly entitled to 50% share of Lot No. 31 and he seeks a declaration accordingly.

Findings

32. It is undisputed that the suit premises (Shek O Inland Lot No. 31) is not in the New Territories and the New Territories Ordinance Cap. 97 does not apply. It is also undisputed that both the Plaintiff and the Defendant are indigenous inhabitants of Shek O Village. It is, however, not clear from the evidence of witnesses called if Chinese Law and Custom was followed in the village so far as the Plaintiff's and Defendant's fathers and grandfather were concerned. No evidence on Chinese Law had been adduced from Chinese Law experts.

33. Chapter I of the Strickland Report on Chinese Law and Custom in Hong Kong 1948 stated in paragraph 1

"1. Hong Kong is a Colony obtained by cession from China and consequently the laws of China as in force at that time remained operative, except such as were contrary to the fundamental principles of English Law ..."

34. Unlike the New Territories where the New Territories Ordinance Cap. 97 had preserved the application of Chinese Law and Custom in the New Territories, the inhabitants of Shek O like the citizens in the rest of Hong Kong Island and Kowloon Peninsula are subjected to changes in the law in the areas of succession, marriage and adoption etc.

35. The Plaintiff's case is clear and straight forward, his right and entitlement to Lot No. 31 came directly from his father Li Kau; and, as the administrator of his father's estate, he successfully had Lot No. 31 vested in his name and Li Sum Hoi's name. Under the Deed of Exchange executed on 21 November 2000, the Plaintiff and Li Sum Hoi (as executor of and heir to his father Li Fat's estate) executed an exchange resulting in the Plaintiff successfully obtaining title to Lot No. 31 as administrator of Li Kau's estate.

36. The Plaintiff is able to point out that Lot No. 31 was created out of the partitioning of the old Lot No. 5 in 1939. This is supported by the record of Crown rent kept by the Government Records Service (see page 42 and 43 of Bundle III) and the two Crown leases dated 5 June 1939 (page 11-26 Bundle III). Though the Defence counsel, Miss To, argued that such documentary evidence are inadequate and inconclusive, they together with further exhibited documents formed the best evidence of title to the suit premises of the Plaintiff.

37 Other documentary evidence included the Urban Land Register kept in the Land Office (page 1-4 Bundle III). The Plaintiff further showed that, in fact, Shek O Inland Lot No. 5 came from the exchange of land under Condition of Exchange No. 3694 of 1936 of Shek O Lot No. 1459 by a Deed of Surrender dated 29 September 1937 registered in the Land Office as memorial No. 155588 (page 9-10 of Bundle III). Tracing back further, there is the assignment by Keung Sin to Li Fat and Li Kau at $100 of Shek O Lot No. 1459 on 23 February 1933 registered in the Land Office as memorial No. 136257 (see page 5-8 Bundle III).

38. It is plain to see that the Land Office records and documents speak for themselves, Lot No. 31 had been part of Shek O Inland Lot No. 5, the indisputable evidence of the two Crown leases dated 5 June 1939 and the location of the old Shek O Inland Lot No. 5 was at exactly the same site of the present Shek O Inland Lot Nos. 5 and 31 (see page 34 Bundle V). The 10 November 1938 sketch prepared by the Crown Lands and Survey Office of P.W.D., speaks for itself. This sketch is found annexed to the Condition of Exchange No. 3269 of Shek O Inland Lot No. 14 produced by Mr. Wong Yung Kwong (DW3) who inherited Lot No. 14 from his own father Wong Yam Sheung (see page 34 Bundle V).

39. I find strong evidence in support of the Plaintiff's claim to the title of Lot No. 31 that it was land purchased by his father Li Kau and Li Fat jointly in 1933, Shek O Lot No. 1459, which was later surrendered to the Crown in exchange for Shek O Inland Lot No. 5. That was why Shek O Inland Lot No. 5 was held in joint names of Li Fat and Li Kau. This further explains when Lot No. 5 was partitioned into Lot No. 5 and Lot No. 31, both pieces of land were jointly held in the names of Li Fat and Li Kau.

40. Clearly, it also explains that upon exchange of land, the Crown would require a house of a certain size and height to be erected within the time limit of 3 years (see page 27 Bundle V). It is also the evidence of Mr. Wong (DW3), that such conditions were laid down by the Crown in the Conditions of Exchange of his father's old land lot in Shek O Lot 1575 for the new lot in Shek O Village - Shek O Inland Lot No. 14 - of 1st January 1939 (page 24-34 Bundle V). This 3 year period may be extended for 1 year twice, making a maximum of 5 years during which the structure must be erected. This explains why Li Fat and Li Kau had to erect their houses in Lot No. 5 (before partition) side by side at the same time and both houses were completed sometime in early 1938 or late 1937. It is possible that money was put up by Li Fat to erect the two houses on Lot Nos. 5 & 31, and Li Kau had agreed to repay Li Fat later on. Further evidence from the Defendant and his witnesses were clearly hearsay, something they said they were told some 40-50 years ago. It is unsafe to rely solely on hearsay evidence, more so if the source of the information is not clear, or how the building cost was advanced, the form the repayments took and whether repayments were made in the U.S. directly by Li Kau and Li Ngau to Li Fat. Even if Li Ngau had made contributions to the building cost it does not follow that Li Ngau had a legal interest in the said premises.

41. I find the Defendant a poor witness, he was not able to give any details of his story unaided. When he was asked where the family was living in the 1950's his answer was particularly confusing and unconvincing. The Defendant attributed it to his having been a seaman and was away a great deal of the time. It has not escaped my notice that though his witness statement and Li Ying Wai - his son's - witness statement are identical in parts, their evidence in Court, however, gave an entirely different impression.

42. Based on the Land Office records and the documents placed before the Court, the Defendant has failed to show that Shek O Inland Lot No. 31 was land exchanged for the land originally owned by Grandfather Li in Upper Shek O Village to make way for the golf course. The schedule of Crown Leases found on page 85-139 Bundle III showed Grandfather Li used to own many pieces of land, but only Lot No. 1594 bore the description of a housing lot (see page 139 bundle III). This book of records of Shek O Crown Leases has the description on its covering page "Shek O, Date of Block Lease 1.4.20" "Term of Leases 21 years from 1.1.1915, 999 years from 1.1.1841". This shows Grandfather Li's housing Lot No. 1594 was of 999 years from 1 January 1841 (see page 139) and so were Keung Sin's Shek O Lot No. 1459 (see page 135) and Wong Yam Shang's Lot No. 1575 (see page 139). Other plots of land registered in Grandfather Li's name were described as 'padi' (page 99, 106, 107, 116), vegetable (page 108, 109, 117, 118, 119) and 'cowshed' (page 139), most had a lease term of only one year.

43. Further, Grandfather Li's Lot No. 1594 was referred to in the Letters of Administration in the estate of Li Kwai Fu deceased (see page 47-49 of Bundle III) granted to Grandmother Chan on 9 May 1949. The Letters of Administration De Bonis Non of 19 September 1966 granted to Madam Wong of Grandfather Li's estate further set out the unadministered property in the said estate to be Shek O Lot No. 1594. Upon the surrender of Shek O Lot No. 1594 in exchange for Shek O Inland Lot No. 85 by a Condition of Exchange dated 19 December 1966 (page 6-8 Bundle III) Madam Wong as administratrix of Grandfather Li's estate sold Lot No. 85 to one Wong Wai Fong on 5 January 1967 for $5,500 (see page 79-82 Bundle III).

44. The documentary evidence before me clearly indicated Madam Wong had sold Grandfather Li's housing lot for $5,500 on 5 January 1967 after the old Lot No. 1594 was surrendered in exchange for Shek O Inland Lot No. 85. It is apparent that the old Shek O Upper Village Shek O Lot No. 1594 was the house by the coast of Shek O occupied by Grandfather Li described as House No. 1B in the Schedule of Crown Leases (page 139). The lot exchanged, Shek O Inland Lot No. 85, can be found in the plan on page 76 of bundle III annexed to the Agreement and Condition of Exchange acknowledged by and signed by Madam Wong.

45. I am satisfied on a balance of probability that the Plaintiff has shown that his title to Lot No. 31 is derived from the purchase from Keung Sin of Shek O Lot No. 1459. It follows that the Defendant has no beneficial interest in Lot No. 31 because it was not as claimed land derived from the estate of Grandfather Li. No positive evidence has been adduced by the Defendant that he is in anyway entitled to share in a property purchased in the name of Li Fat and Li Kau. I find the hearsay evidence adduced by the Defendant of what Grandmother Chan may have told him over 50 years ago and what Madam Wong may have told Li Ying Wai over three decades ago of how money was raised to erect the house on Lot No. 31 to be unsatisfactory and unreliable. Furthermore, there is no evidence of the source of such information, whether it came from letters sent by Li Kau and Li Ngau to Grandmother Chan or whether she was told of such details by Li Kau and Li Ngau directly. There is no evidence if she was able to read and write. The fact remained, Grandmother Chan died after obtaining letters of administration on the estate of Grandfather Li but leaving the only asset, the old lot in Shek O Lot No. 1594, unadministered. Madam Wong took over the administration of Grandfather Li's estate and sold the new lot exchanged for Shek O Lot No. 1594 for $5,500. The evidence on record shows she must have known it was Grandfather Li's old housing lot.

46. I find the Defendant and his son Li Ying Wai to be unreliable witnesses. The Defendant was incapable of recalling much of the evidence on his witness statement without assistance so much so that his son Li Ying Wai felt he had to apologise to the Court for his father's forgetfulness in Court. I find Wong Yung Kwong (DW3) and Chan Chang Li (DW5) obliging witnesses. They gave evidence mostly from their own recollections, however, their evidence clearly contradicted the evidence of the Defendant on the year the family moved to the No. 54B hut for it was their evidence that the sister of the Plaintiff had got married while residing in the No. 54B hut in the early 1950's. Mr. Wong was able to give clear evidence that both the ground floor and first floor were let to tenants Ho Fu Lui and Lee Sai Wah respectively in the 1950's. That Lee drove a Rolls Royce in Shek O Village in those days. This supported the Plaintiff's evidence. Mr. Li Chung Biu (DW4) and Li Ying Wai (DW2) were both too young to be able to give any evidence other than hearsay evidence from equally unreliable sources unsupported by any documentary evidence.

47. Furthermore, even if Li Ngau had contributed part of the money to repay Li Fat and even if Li Ngau's death was not, as the Plaintiff insisted, in 1945 but a few years later, this would still not assist the Defendant's case. Such contribution does not give rise to a change of ownership where there is no evidence of any agreement between Li Kau and Li Ngau that gives rise to a change of titles of the said premises.

48. I accept the Plaintiff's evidence that Madam Wong had never accounted to the Plaintiff the proceeds of sale of Shek O Inland Lot No. 85 which was sold for $5,500 by her in January 1967. The Plaintiff in the present action is not making a claim for it. Lots No. 5 and 31 were clearly land exchanged for Shek O Lot No. 1459 which was purchased in the joint names of Li Fat and Li Kau. The story of the solicitor making a mistake in registration because of Li Fat's loan to Li Kau is speculative and pure conjecture on the Defendant's part, it is completely without foundation and is unreliable. Further, it is contrary to the strong and indisputable documentary evidence from the Land Office. For the aforesaid reasons, the Defendant's counterclaim is dismissed. As to the second claim for the return of $10,000, the claim is long overdue and time barred. It is incredible that it has taken the Defendant over 20 years to make this claim. It is hereby dismissed.

48. For the above reasons, I am satisfied the Plaintiff has successfully proved his claim against the Defendant. The Defendant shall deliver vacant possession of the 1st floor and roof of Lot No. 31 to the Plaintiff. I award mesne profits to the Plaintiff in the following:-

10/5/96 to 9/5/98 at $12,200 per month	$292,800
10/5/98 to 9/5/00 at $12,200 per month	$292,800
10/5/00 to 9/5/02 at 10,000 per month	$235,200
10/5/02 to 9/11/03 at $14,000 per month	$280,000
	$1,100,800

49. Interest from date of writ to date of judgment in the sum of $820,800 at half judgment rate and thereafter at full judgment rate of judgment sum until full payment.

50. Costs nisi to the Plaintiff to be taxed if not agreed with certificate for counsel. The Plaintiff's own costs to be taxed in accordance with Legal Aid Regulation.