CHOW KUM WING v. LAM WING CHING AND OTHERS

______________

J U D G M E N T

______________

Kempster, J.A.:

This is the judgment of the Court.

1. The defendants appeal from an order for possession of a hut at Diamond Hill, Kowloon, made by His Honour Judge Wilson in the Kowloon District Court on the 21st of September last year pursuant to the leave of that judge granted on the 5th of February of this year. He had extended the time for applying for leave to appeal, which is fourteen days, by over four months pursuant to section 63(5) of the District Courts Ordinance.

2. It appears from his Notes, dated oddly enough the 2nd September 1984 that, as he was required to do, the learned judge gave his reasons orally at the time when he made the order under challenge. His "Reasons for Decision", which are before us, were recorded on 8th of February of this year pursuant to section 60(1) of the Ordinance. Whether or not the learned judge at that stage modified or altered the grounds which earlier he had orally expressed or substituted new ones, as he was entitled to do under the strange provisions of section 60(3), provisions which are even stranger if there has meanwhile been a review pursuant to section 53, we do not know.

3. By his Particulars of Claim the plaintiff asserted ownership of the hut in question and the trespass thereon of the defendants. By their Defence the defendants put the plaintiff to proof as to his title and claimed to be lawful tenants. At the hearing evidence was called only on behalf of the plaintiff the effect of which, as stated by the trial judge in his "Reasons for Decision", was that the plaintiff bought the hut in 1961 and has remained owner ever since. He produced a succession of deeds showing his title to the hut. For a few years after purchase he had operated a factory there. In further support of his claim to ownership and possession the plaintiff produced an agreement signed between him and a tenant of the hut in 1979 duly stamped by the Stamp Office a bundle of receipted rate demands, and an assessment to property tax dated 1983. These demands and the assessment, addressed to the plaintiff at his residential address, bore the inscription "Location of property, 7 Shui Kui Road, Diamond Hill"; the suit premises. The plaintiff said he had been paying rates and property tax on the hut since he bought it and collecting rent since he let it. The plaintiff's daughter said she helped her father with his affairs and had collected rent for him since 1979. In early 1983 she had sold part of the premises, not the part now occupied by the defendants, and some envelopes were produced suggesting that the part sold off might have been described as "7B". In late 1983, when she went to collect the rent, the tenant had disappeared. Instead she found a number of strangers in occupation and I think it is common ground that they included the defendants. She returned with an official of the Squatter Control in order to ascertain their respective identities. There was no evidence of any letting to the defendants.

4. On 14th May 1984 a writ was issued claiming divers relief. The cause of action was obviously trespass.

5. The learned judge concluded:

"Despite the absence of registered title to the land I was of the view that the Plaintiff's claim to the hut was overwhelming."

He made orders for possession and for damages in the plaintiff's favour. In our view the dichotomy between the words "title" and "claim" derives from the admission by the plaintiff that the title to the land on which the hut stands was and remains vested in the Crown.

6. Despite the unnecessary distinction made as between paragraphs 2 and 3 of the order appealed against we are satisfied that the learned judge found as he did on the basis that the plaintiff had satisfied him that he was the person having a sufficient degree of physical control over the hut to constitute possession and, therefore, to entitle him to bring proceedings in trespass whether for recovery of land, formerly called ejectment, or for damages.

7. In the chapter on possession in his classic work "The Common Law", Oliver Wendell Holmes, Jr. made this suggestion:

"It is conceivable that the common law should go so far as to deal with possession in the same way as a title, and should hold that, when it has once been acquired, rights are acquired which continue to prevail against all the world but one, until something has happened sufficient to divest ownership."

By "but one" the author was referring to the true owner.

8. Turning to page 30 of another classic work, Pollock & Wright on possession in the Common Law, we find these words:

"What kinds of acts, and how many, can be accepted as proof of exclusive use, must depend to a great extent on the manner in which the particular kind of property is commonly used. When the object is as a whole incapable of manual control, and the question is merely who has de facto possession, all that a claimant can do is to show that he or someone through whom he claims has been dealing with that object as an occupying owner might be expected to deal with it, and that no one else has done so."

That passage was quoted in Fowley Marine (Emsworth) Ltd. v. Gafford⁽¹⁾ and at pp. 629 and 630, in the context of claims by the plaintiff to ownership and possession of a tidal creek and in terms apposite to the instant case, Bussell, L.J. said:

"The Crown is not party to these proceedings having, we are told, been invited to join, but declined. It is unsatisfactory to decide the question of title to the freehold of the Rythe in the absence of the Crown - I take, therefore, first the question whether the plaintiff shows at the relevant time sufficient possession of the Rythe to justify an action in trespass in this case. If the answer to this is in the affirmative, it would gain the day for the plaintiff without decision on freehold title."

He went on, after reviewing the evidence:

"It appears to me that there is in this case ample evidence sufficient to show possession in the plaintiff and its predecessors - I would therefore hold, contrary to the judgment below, that the plaintiff is entitled to succeed in trespass against the defendant."

In our opinion the evidence already recited demonstrated the plaintiff's possession of the hut.

9. At page 634 Willmer, L.J. made a more general statement of the relevant law in terms envisaged by Holmes:

"Thus it is well established that a person in possession of land has a perfectly good title against all the world but the rightful owner; - it is equally well established that as against the party in possession a defendant cannot set up the title of a third party unless he himself claims under it."

This is just what the defendants, who did not claim under a third party's title, sought to do; at least on appeal. They relied on the absence of proof of the plaintiff's title to the hut and on the fact that it was part of his case that the land on which it stood was vested in the Crown. They contended that, in consequence, the hut was also so rested. Be that as it may we consider, in the light of authority, that these considerations avail the defendants nothing. In so finding we would like to pay tribute to Mr. Pritchard's careful argument on their behalf. It is too late in the day to resurrect the opinion of Sir William Holdsworth that jus tertii affords a defence in an action for possession; an opinion given support by the decision of Coltman, J. in Carter v. Barnard⁽²⁾ and of the majerity of the Irish Court of Appeal in Nagle v. Shea⁽³⁾. We prefer the view expressed by Dixon, C.J. and Fullager, J. in Allen v. Roughley⁽⁴⁾ to the effect that jus tertii affords a defendant no defence. In any event this Court is bound by decisions of the Privy Council and in the present context by the opinion of the Board expressed by Lord Macnaghten in Perry v. Clissold⁽⁵⁾ at p. 79:

"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner."

Lord Macnaghten followed the decision in Asher v. Whitlock⁽⁶⁾ where neither party to a dispute as to part of a manorial waste had a title as against the lord, rather than that in Carter v. Barnard⁽²⁾.

In the circumstances we are bound to find that the appeal fails.

⁽¹⁾ [1968] 2 Q.B. 618

⁽²⁾ [1849] 13 Q.B. 945

⁽³⁾ [1874] VIII I.R. 224

⁽⁴⁾ [1955] 94 C.L.R. 98

⁽⁵⁾ [1967] A.C. 73

⁽⁶⁾ 1865 D.R. 1 Q.P. 1