CHAN LAI YUNG v. CHAN YAT MUI AND OTHERS

HCA 964/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 964 OF 2006

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J U D G M E N T

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1.  This is a case involving adverse possession of two parcels of land near Fu Tei Pai Village in the New Territories.

2.  The 1^st Defendant became the registered owner of Lot 272 and 273 in D.D. 85 by succession on 1November 1980.  By a Deed Poll dated 19 February 1997, the 1^st Defendant executed a Deed Poll whereby Lot 272 was divided into three subsections being Section A, Section B and the remaining portion.

3.  He assigned Section B to the predecessor in title of the 2^nd Defendant on the same date and the remaining portion to the 3^rd Defendant on 3 Mach 2007.

4.  The 1^st Defendant died in July 2008 and by Court Order is represented by his widow Madam Chan Yat Mui.

5.  The land in dispute is divided into two separate parcels by virtue of the fact that the claims to possessory title are made by way of two different chains of title.

6.  The area designated as possessed Area 1 was occupied for a period before 1971 by the Plaintiff’s uncle Chiu Bing.

7.  The Defendants do not contest that Chiu Bing occupied possessed Area 1.  However it is their case that his occupation was by virtue of an Oral Tenancy Agreement and that accordingly time did not run against them.

8.  In or around 1986 Chiu Bing emigrated to the Netherlands and the Plaintiff took over occupation of the land.

9.  Possessed Area 2 was occupied by Mr Fung Chung a friend of Chiu Bing.  His occupation also commenced before 1971.

10.  In 1971 Fung Chung sold the Hut known as Hut 18F, he had erected adjacent to the land to the Plaintiff for HK$700 and suggested that she could farm the area comprising Possessed Area 2.

11.  According to the Plaintiff the land was cleared and the area of the parcel of land was occupied by her and her family.

12.  The Plaintiff testified to all of this.

13.  She described how the family had occupied the land subject to this litigation.

14.  Shortly after they had moved to the Hut they had cleared the adjoining land and fenced it off.  They used it for rearing chickens and growing vegetables.

15.  The land had been fenced off by using metal meshing and iron rods.

16.  When Chiu Bing moved out in 1986 he suggested that as no one owned the land he had been occupying the Plaintiff could use it provided that if his wife did not settle down in the Netherlands where he was going she could move back and occupy the land.

17.  At this juncture there was no discussion about landlords or paying rent.  If the Plaintiff’s evidence is believed implicitly Chiu Bing was not paying rent to any member of Chan Yat Wah’s family.

18.  On this topic it is significant that it was not the defence’s pleaded case that the Plaintiff had ever paid rent to any of the Defendants or their representatives prior to the alleged Tenancy Agreement signed by the Plaintiff in February 1994.

19.  The Plaintiff was able to remember the date when she purchased the Hut from Fung Chung as her son Tse Hung was aged about 10 at the time.  He had been born on 11 January 1961.

20.  She was able to place the date when Chiu Bing had left for the Netherlands by the fact that at that time her daughter Tse Ka Yiu had been pregnant with her granddaughter who was now in her early twenties.

21.  The other evidence which was of assistance in placing the Plaintiff’s occupation in the vicinity was contained in records maintained by the Director of Housing.

22.  The Plaintiff and her husband were recorded as being the occupants of dwelling Hut 18F.

23.  However they were not recorded as being the occupants of dwelling Hut 18G.

24.  The explanation given by the Plaintiff for this had been that her son had got married at about this time and he and his wife had occupied a separate area adjoining Hut F and this area had been designated as Hut 18G by China Light and Power when an electricity supply had been installed at the extended portion.  The reality of the situation was that her son was occupying Hut 18G.  He had for a short period lent the Hut to a friend.

25.  The Plaintiff’s family was registered as the account holder for the supply of electricity at Hut 18F and this was still the case.

26.  An important part of the Plaintiff’s evidence related to the question of rent.

27.  She was adamant that at no time had she ever paid rent to Chan Yat Wah his predecessor or anyone deriving title from him.

28.  Also to the best of her knowledge neither Chiu Bing nor Fung Chung had paid any such rent.

29.  Indeed until the incidents which will be referred to later in this judgment it was her impression that the land had been abandoned and she was unaware of any other party which might have an interest in it.

30.  Some time in early 1994 two men arrived at her Hut and informed her that they were conducting a survey in the village concerning the necessity for squatters to pay rates and that they needed her support.  They produced a piece of paper with writing on it and requested her to sign it notwithstanding the fact that she was illiterate and unaware of the contents of the document.  It later transpired that the document was a Tenancy Agreement of the suit land.

31.  The Plaintiff was cross examined on this at some length by Ms Jennifer Tsui for the 1^st and 2^nd Defendants and by the 3^rd Defendant in person and it has to be said that the answers she gave to the questions put to her were rather less than convincing.

32.  She admitted with some reluctance that one of the men had identified himself as Lee Koon Shing the village representative.  She later understood that the other man was Chan Yat Wah the registered owner of the suit land.

33.  It is perhaps surprising that having regard to the fact that the village is a small one and the Plaintiff has lived there for approximately 40 years that she was not aware of the identity of the men.

34.  However this evidence may be credible as Mr Lee Koon Shing the only living witness on the Defendant’s side having direct knowledge of the meeting gave conflicting evidence as to whether he knew the Plaintiff.

35.  The Plaintiff claimed that she had never paid any rent under the purported Tenancy and that it was only much later that she learnt that the document she had signed was a Tenancy Agreement.

36.  The next matter of significance occurred in about February 2004.  Mr Chan Yat Wah came to her Hut and identified himself as the owner of the suit property.  He said that the said land was being occupied without his consent and that she must remove all structures and vegetation from the land as it was his intention to commence building work on the land in about 2 weeks’ time.

37.  He had not at any time referred to any Tenancy or non payment of rent.  Also he did not purport to terminate any lease or licence.

38.  As she had been in possession of the land for over 30 years she regarded it as her own.  Mr Chan Yat Wah was informed of this.

39.  Following this her daughter sought legal advice and ascertained who were the registered owners and what were her rights.

40.  On a number of occasions men claiming to be duly authorised attended on the land and took measurements.

41.  In or about 13 August 2004 a Mr Law Kee and a gang of men attended at the property and started tearing down fences.  She and her son tried to resist this forceful entry and reported the matter to the police.  Eventually the men left.

42.  On 30 November 2004, Mr Chan Yat Wah brought along workers with heavy construction excavating machinery and destroyed everything on the surface of the land.  Although police assistance was sought it was to no avail.

43.  In December 2005, Mr Chan’s workers began construction work on the land and started to build three houses on the land.

44.  She continued to protest against this and her family members took action to obtain legal representation to protect her interests.  As she was impecunious she had to obtain legal aid and this took some time.

45.  It is a matter of court record that the Plaintiff did attempt to obtain an ex parte injunction to restrain the Defendants from building on her land but her application was refused.

46.  Notwithstanding the slight reservations I have indicated the Plaintiff acquitted herself well in cross examination.

47.  Essentially I found her to be a truthful and reliable witness.

48.  The only other witness to give evidence for the Plaintiff was Mr Fung Kwok Keung.  He is the son of Fung Chung earlier referred to who sold the Hut to the Plaintiff in 1971.  He gave evidence that his father had since died.

49.  Although at the time he was of tender years he remembered living in the Hut and his family occupying possessed Area 2.  Also he remembered that Chiu Bing lived nearby and had been occupying possessed Area 1.

50.  This evidence was not seriously challenged.

51.  Ms Chan Yat Mui who is the widow of Chan Yat Wah was the 1^st Witness for the defence.

52.  She married Mr Chan in 1987 although their relationship went back to 1985.  They were living in the United Kingdom at that time but Mr Chan apparently made frequent visits to Hong Kong.

53.  From 1985 onwards she accompanied him on some of these visits.

54.  It will be appreciated that since Mr Chan died in July 2008 he cannot give evidence.  However he did make a witness statement and supplemental statement in anticipation of being a witness and Mr Jeremy Chan for the Plaintiff did not object to reference being made to this statement subject to the reservation that as he could not be subjected to cross examination only a limited amount of weight could be attached to the evidence contained within it.

55.  This does lead to some difficulties.

56.  This is particularly the case with much of Mrs Chan’s evidence as on a number of important matters her evidence is hearsay of what her husband told her.

57.  She said that she had been told by her husband that the Plaintiff had been paying rent since 1985 and that it had been collected by him.  She went on to say that she had been told that the Plaintiff had been managing the land at that time.

58.  Mr Jeremy Chan then invited her attention to paras 5.2 to 5.6 of the defence which read:

“5.2   In or about 1971, Lot 272 and Lot 273 were let to one Chiu Bing by Mr Chan Fuk and Lee Tai (李帶)，deceased (“Lee Tai”) at a yearly rental of about HK$100.00 who was the 1st Defendant’s step mother.

5.3     Chiu Bing then used Lot 272 as Chicken sheds.

5.4     In or about 1980s, Chiu Bing emigrated to Netherlands and delivered up possession of the Lot 272 and Lot 273 to Lee Tai on behalf of the 1st Defendant.

5.5     The 1st Defendant as landlord and the Plaintiff as tenant entered into a Tenancy Agreement in Chinese dated 21 February 1994 whereby Lot 272 and Lot 273 were let to the Plaintiff for agricultural purpose at a yearly rental of HK$100.00. As such, the Plaintiff acknowledged the Defendants’ title to the Lot 272 and therefore did not have the intention to dispossess Lot 272.

5.6     On a date unknown to the Defendant but subsequent to the date of the Tenancy Agreement, the Plaintiff entered upon and used Lot 272 for planting fruit trees thereon.”

59.  Her evidence in this connection was that she was right and her husband had been mistaken.

60.  It was even more complicated than that.  Mrs Chan said that as she is fluent in Chinese and English and fully literate in the latter language she assisted her husband in his business affairs particularly as his knowledge of English was limited.

61.  She said that she had been present when her husband had given instructions to his solicitor.

62.  Mr Jeremy Chan then showed her her husband’s witness statement on this topic.

“15.   I remember that after Chiu Bing had left Lot 272 and Lot 273 in the mid 1980s, it began to fall into disuse and became heavily overgrown with wild trees and bushes.  However on a date unknown to me but subsequent to the date of the Tenancy Agreement on 21 February 1994, the Plaintiff entered upon and used Lot 272 for agricultural purposes only and also planted fruit trees thereon.  The Plaintiff only used Lot 272 for agricultural purposes.  I was in agreement with this because I knew that the Plaintiff’s agricultural use was not inconsistent with or did not jeopardise my chances of developing Lot 272 for the building of village houses.  Had Lot 272 been used by the Plaintiff’s for residential use I would have objected to such use as this would have made it difficult for me to clear the land when I decided to develop Lot 272. “

63.  This is clearly inconsistent with evidence to the effect that the Plaintiff was paying rent to Chan Yat Wah or any representative for him prior to 1994.

64.  Mr Jeremy Chan asked Mrs Chan who had been present when her husband had been giving instructions to his solicitor why she had not corrected this evidence.

65.  She was unable to give any convincing explanation.

66.  There was an additional problem concerning Mrs Chan’s evidence that her husband had gone back to the village every year to collect rent including rent payable by the Plaintiff.  In her husband’s witness statement at para 10 it is stated:

“10.   Because Chiu Bing rented Lot 272 and Lot 273 from me in or about 1971 until mid 1980s, even if the Plaintiff used any part of Lot 272 or Lot 273 from 1971 until 1986, which is denied, the Plaintiff was using the Lot while it was rented and controlled by Chiu Bing.  Any alleged arable use by the Plaintiff from 1971 until mid 1980s was assumed by me to be arable use of Chiu Bing or arable use allowed by Chiu Bing.  Therefore any alleged adverse possession by the Plaintiff between 1971 until mid 1980s was against Chiu Bing as the Tenant and not against me as the Landlord.”

67.  Mrs Chan was unable to reconcile this denial with her evidence that the Plaintiff had been paying rent to her husband prior to 1994.

68.  There were other unsatisfactory aspects of Mrs Chan’s evidence in relation to the payment of rent.

69.  Initially she claimed that her husband had collected the rent.  Later she gave evidence that up to the time of her husband’s stepmother’s death in 1988 she had been collecting rent from the Plaintiff.

70.  All of this is highly unsatisfactory and it is difficult to attach much credibility to her evidence so far as what she claims she was told by her late husband.

71.  It is necessary now to turn to the direct evidence given by her.

72.  She said that on her first visit to the village with her husband in 1985 she visited the suit property.

73.  She claimed that there was no fencing surrounding the land.

74.  Mr Jeremy Chan then showed her aerial photographs which had been taken shortly before 1985 which showed fences on the land.

75.  In this connection the aerial photographs and a surveyor’s report had been agreed and it was further agreed that the surveyor need not be called as a witness.

76.  She insisted that there had been no fences when she visited the land.  I do not think that she was telling the truth.

77.  Mrs Chan made reference to a visit she and her husband had made to the Plaintiff at their Hut some time after 1997.

78.  On that occasion her husband had informed the Plaintiff that he had got planning permission to build three houses on the land.  That being the case she would have to vacate the land and remove all her belongings.  She would not be required to pay any more rent.

79.  Mrs Chan said that the Plaintiff accepted the position but sought compensation for the loss of the banana trees which were on the land.  Her husband had agreed to this and that the details could be worked out later.

80.  About a year later she and her husband paid another visit to the Plaintiff.  Her husband had been upset to note that the Plaintiff had not vacated the land.

81.  Her husband and Mr Lee Wah Cheung then started to move the junk from the land and the Plaintiff’s son stopped them from continuing to do so.

82.  According to Mrs Chan the son then said that he had been paying rent to Mr Chan Yat Wah.  Clearly he had not known that her husband was Mr Chan Yat Wah.

83.  None of this evidence has the ring of truth.

84.  If it is considered in relation to both the Plaintiff’s evidence and the fact that she did eventually institute the present legal proceedings it would appear unlikely that she would have meekly acquiesced in vacating the property and accepting compensation of just the value of some banana trees.

85.  Also it should be noted that a year elapsed before checking whether the Plaintiff had left the property.  As it was contemplated that the site was going to be developed it seems unlikely that Mr Chan Yat Wah would not have taken follow up action much earlier.

86.  Overall I regret that I did not consider Mrs Chan to be a truthful and reliable witness.  It was definitely my impression that she was attempting to tailor her evidence to what she thought would support the defence case rather than telling the truth as to what had transpired.

87.  I have come to the conclusion that I cannot attach much weight to her evidence unless it is corroborated in some way.

88.  The next witness to give evidence for the defence was Mr Lee Koon Shing.

89.  He was the village representative from 1993 to 1998.

90.  The main purpose of his evidence was to state what had transpired at a meeting which took place at the Plaintiff’s Hut in February 1994.

91.  He explained to the court that one of his functions as village representative was to assist villagers who encounter problems.  In particular he considered that he had a duty to assist indigenous villagers.

92.  In this connection Mr Chan Yat Wah and his family were indigenous villagers whereas the Plaintiff and her husband who is now deceased were outsiders notwithstanding the fact that they have been resident in the village for many years.

93.  He said that he had known Mr Chan Yat Wah since childhood and regarded him as being a brother.

94.  Initially he was reluctant to admit that there could be any possibility of adverse possession being an issue in the present case.  However he did say that he had given advice to Mr Chan Yat Wah that he would need to take appropriate measures to ensure that no one was able to make such a claim against him.

95.  He expressed deep animosity towards squatters and people attempting to set up claims of adverse possession.  He described them as robbers who stole other people’s land.

96.  Be that as it may he gave evidence that in February 1994 Chan Yat Wah approached him and sought his advice.  It was then decided that the Plaintiff should be approached and requested to sign a Tenancy Agreement.  Both he and Chan Yat Wah would attend upon her.  According to Mr Lee when they went to the Hut the Plaintiff’s husband was also there.

97.  They had a friendly discussion and the Plaintiff had no objection to signing the Tenancy Agreement.

98.  The document was prepared.  It was explained to her by Chan Yat Wah.  The Plaintiff’s husband agreed and she then signed the document and Mr Lee added his signature as a witness.

99.  He claimed not to know that the Plaintiff was illiterate.

100.  He also gave conflicting evidence concerning the extent to which he knew the Plaintiff and her husband and particularly in the case of the Plaintiff whether he had met her prior to the 1994 meeting.

101.  Having regard to the stance consistently adopted by the Plaintiff it would seem to me highly improbable that the meeting would have been a harmonious one or that the Plaintiff would have simply agreed to in effect recognise Chan Yat Wah’s title to the land.

102.  In addition to this I do not believe that the Plaintiff’s husband was present at the meeting.  In this respect it would have made more sense for him to be a party to the Tenancy Agreement.  It was common ground that he was literate and indeed had worked as an accountant.

103.  I have serious doubts concerning the veracity of this account.

104.  Having regard to Mr Lee’s stated attitude towards people attempting to make adverse possession claims and also the evidence given earlier that he regarded Chan Yat Wah as being like a brother I think that the Plaintiff’s version of events is much more likely.

105.  I think that the two men set about trying to hoodwink the Plaintiff in the hope of defeating what they feared might be a situation where the Plaintiff might be able to successfully make a claim for adverse possession in respect of the land.

106.  Mr Lee also gave evidence to the effect that all the people occupying Mr Chan Yat Wah’s land were doing so pursuant to the terms of Oral Tenancies and that they were paying rent under the Tenancies.

107.  In partial support of this he said that when he had been in the Netherlands in the late 1980’s he had a chance meeting with Mr Chiu Bing.  They had not previously met each other.

108.  When they realised that they had come from the same village in the New Territories of Hong Kong Mr Chiu Bing had informed him that he had been a tenant of Chan Yat Wah.

109.  After skilful cross examination by Mr Jeremy Chan, Mr Lee eventually gave evidence that if he claimed to know details in respect of the land and the tenants before 1994 he would be lying.

110.  Mr Lee claimed that subsequent to 1994 he collected rent for Mr Chan Yat Wah from the Plaintiff.

111.  He said that he continued collecting rent until the time when construction work on the site commenced.

112.  He was asked if he issued any rent receipts to the Plaintiff.  He replied that this was not necessary.  It might be thought that this was a rather surprising reply as it seems that the whole purpose of requiring the Plaintiff to enter into a Tenancy Agreement was an attempt to defeat any claim she might make on the land.  This being the case it would seem to be simple prudence to issue receipts from a receipt book which could be produced as evidence at any trial.

113.  Mr Jeremy Chan also put the witness paragraph 10 of Mr  Chan’s witness statement referred to earlier in this judgment and he also was unable to reconcile this evidence with the evidence he had given the court.

114.  Mr Lee struck me as being an evasive and untrustworthy witness and unless his evidence is corroborated from some other source I am unable to accept it.

115.  The next witness to give evidence was Mr Lee Wah Cheung.

116.  He was a close friend of Chan Yat Wah’s family.  He had known his father Chan Fuk, his mother Chan Tsang Shi and Lee Tai his stepmother.

117.  He had been born in China and come to Fu Tei Pai Village in 1951.

118.  Chan Fuk had told him that he had rented out all his land.

119.  He moved to Kowloon in the mid sixties.  However he kept in touch with Chan Yat Wah’s family and made visits to the village.

120.  He knew the area of land which had been occupied by Chiu Bing.  However he was unaware of the exact boundaries of the land actually occupied by Chiu Bing.

121.  However the important point to note is the extent of his knowledge concerning the alleged Tenancy of Chiu Bing.  He did not know Chiu Bing nor did he know the details of the rent paid if any or whether any rent had continued to be paid by him.

122.  In any event he had not been a resident of the village since the mid 60’s and I do not think that he was in a position to know with sufficient certainty that Chiu Bing was occupying the land under an Oral Tenancy Agreement.

123.  Having said this I believe that Mr Lee was an honest witness who tried to assist the court.  He just did not have sufficient knowledge of the overall situation to be able to give convincing evidence.

124.  The final witness called by the 1^st and 2^nd Defendants was Mr Kwan Shun Fat.

125.  His family lived nearby at Lot 310 in D.D. 85.

126.  He moved out in March 2006.  He was aware that the lot was leased from Chan Yat Wah some 40 years ago and rent had been paid to Lee Tai.

127.  He agreed that he had no personal knowledge of the circumstances pertaining to this litigation.

128.  It would appear that his evidence is of little assistance to the court.

129.  The final witness to give evidence was the 3^rd Defendant Mr Paul Chan.

130.  Mr Chan is the eldest son of Chan Yat Wah.  He was born in England and has spent all his life there.

131.  He has however made a number of visits to Fu Tei Pai Village with his father.

132.  His father told him that all of his land was leased out to tenants.

133.  In 1995 he visited Hong Kong with his father.

134.  While visiting tenants and collecting rent he was introduced to the Plaintiff.  He assumed that she was paying rent.

135.  However to his credit Mr Chan said that he was unable to say with any certainty that the Plaintiff had indeed paid any rent to his father.

136.  While I accept Mr Chan as a truthful and honest witness his evidence is insufficient to call in question the Plaintiff‘s evidence.

137.  At this point I propose making some findings of fact.

138.  For the reasons I have given I find as proved that the Plaintiff has been in possession of possessed Area 2 since about 1971.  I further find as proved that Chiu Bing was in possession of possessed Area 1 from around 1970 to around 1986 whereupon the Plaintiff was in possession of the land.

139.  On the evidence before me and on the balance of probability I do not accept that the Defendants have established that Chiu Bing was either a tenant of the Chan family or that he ever paid rent to them.

140.  I am also satisfied that the Plaintiff has at no time paid rent to the Chan family or anyone representing them.

141.  As indicated earlier in this judgement I do not believe that the Plaintiff knowingly signed a Tenancy Agreement of the suit land in February 1994.

142.  I accept her evidence that she was asked to sign a petition which she did.  I also accept that she had no knowledge of the contents of the Tenancy Agreement which was tendered to her.  This being the case she cannot be held to its terms.

143.  As regards the events which followed and in particular to the meetings referred to earlier in this judgment I accept the Plaintiff’s evidence and reject Mrs Chan’s and Mr Lee Koon Shing’s evidence.

144.  On this basis I do not believe that the Plaintiff is estopped from claiming a possessory title to both possessed Areas 1 and 2.

145.  It may be helpful to make short reference to the law.

146.  Section 7 of the Limitation Ordinance, Cap. 347 provides:

“7.     Limitation of actions to recover land

         (1)     No action shall be brought by the Crown to recover any land after the expiration of 60 years from the date on which the right of action accrued to the Crown or, if it first accrued to some person through whom the Crown claims, to that person.

         (2)     No action shall be brought by any other person to recover any land after the expiration of 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:

         Provided that, if the right of action first accrued to the Crown through whom the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the Crown, or of 12 years from the date on which the right of action accrued to some person other than the Crown, whichever period first expires.    (Amended 31 of 1991 s. 5)”

147.  The relevant period referred to in Section 7(2) is of course now 20 years rather than 12.

148.  Mr Jeremy Chan also placed reliance upon Section 12 of the Ordinance.  This reads:

“12.   Accrual of right of action in case of certain tenancies

         (1)           A tenancy at will shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of a period of 1 year from the commencement thereof, unless it has previously been determined, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued on the date of such determination.

         (2)           A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Ordinance, be deemed to be determined at the expiration of the first year or other period, and accordingly the right of action of the person entitled to the land subject to the tenancy shall be deemed to have accrued at the date of such determination:

         Provided that, where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent.

         (3)           Where any person is in possession of land by virtue of a lease in writing by which a rent of not less than $20 is reserved, and the rent is received by some person wrongfully claiming to be entitled to the land in reversion immediately expectant on the determination of the lease, and no rent is subsequently received by the person rightfully so entitled, the right of action of the last-named person to recover the land shall be deemed to have accrued at the date when the rent was first received by the person wrongfully claiming as aforesaid and not at the date of the determination of the lease.

         (4)           Subsections (1) and (3) shall not apply to any tenancy at will or lease granted by the Government.  (Amended 29 of 1998 s. 105) [cf. 1939 c. 21 s. 9 U.K]”

149.  Section 12(2) is germane to this case in the light of the findings of fact in relation to the failure of the Defendants to prove at any rent was paid in respect of the land for the relevant periods.  Section 17 reads:

“17.   Extinction of title after expiration of period

         Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

150.  This is relevant to the relief which is being sought by the Plaintiff.

151.  I make the Declaration sought in the first three claims for relief in the amended statement of claim and the order sought in the 4^th claim.

152.  Having regard to the fact that I have not heard any submissions concerning the remaining relief sought I propose making no further orders at the present time.

153.  The Defendants counterclaim is dismissed.

154.  Any of the parties are at liberty to apply to the court for any order they may seek.

155.  I do however make an order nisi that the Plaintiff is to have her costs and that these are to be taxed in accordance with the Legal Aids Regulations.