RICAS PROPERTIES LTD v.ARMED FORCES TRADING CO LTD AND OTHERS

DCMP 75/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 75 OF 2008

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J U D G M E N T

1.  As the registered owner, Ricas Properties, the Plaintiff, commenced the present proceedings to recover from the Defendants possession of the land in question, namely, Lot No.1347 of DD No.107 situated at Fung Kat Heung, Yuen Long, New Territories (“the Land”). The Land is defined and delineated in the plan marked as “Annexure 1” to the originating summons.

2.  Armed Forces Trading, the 1^st Defendant, says that it did not and does not occupy the Land; and the same was and is occupied by Fairwise, the 3^rd Defendant, as the tenant of Hui, the 4^th Defendant.  Hui alleges adverse possession of the Land. Where appropriate, the above 3 defendants are collectively referred to below as the Defendants.

3.  Ricas Properties attempted summary procedure for an order for possession of the Land pursuant to O.113 of the Rules of the District Court; but failed.  The court handed down its written decision on 29 August 2008; and directed the case to proceed as if the same had been commenced by way of writ.  The parties were also directed to file pleadings.

The Defendants’ case

4.  The case of the Defendants is that since 1960s, the Land had been cultivated by one Hui Mau Tung, who was the grandfather of Hui (“the Grandfather”).  In 1985, Hui emigrated to Hong Kong and joined the Grandfather in cultivating the Land.  The Grandfather passed away in December 1987.  Hui succeeded the Land.  Mr Wong made clear that his client is not contending succession in the probate sense. What is being contended is that his client succeeded the Grandfather as the squatter of the Land until 1999.

5.  The Grandfather and Hui have allegedly been in continuous and exclusive possession of the Land adverse to the interest of the predecessor in title of Rica Properties.  In 1999, Hui entered into a tenancy agreement with Fairwise in respect of the Land. Fairwise has since then been operating an outbound or more specifically a war game site there.

6.  In the circumstances, Ricas Properties is said to have been dispossessed of the Land and its right of action extinguished by virtue of the Limitation Ordinance, Cap.347 (“the Ordinance”).

7.  Notwithstanding its contention that it is never an occupier of the Land, Armed Forces somehow joins Fairwise and Hui in claiming for a series of declaration, including that Ricas Properties be barred from taking action against them to recover the Land; and that Fairwise and Hui are entitled to remain in possession of the Land.  The Defendants go further to seek a declaration that Hui be entitled to be registered as the owner of the Land.

Ricas Properties’ case

8.  Ricas Properties became the registered owner of the Land in October 1980.  It denies the alleged adverse possession of the Land by the Grandfather or Hui.  It was in February 2007 when Ricas Properties first discovered signs of the Land being trespassed by third party, namely, “三軍外展中心“ (Armed Forces Outbound).  Ricas Properties claims for, amongst others, vacant possession of the Land, damages for trespass and injunctive relief.

Adverse possession

9.  Ricas Properties entered into agreement to purchase the Land in July 1980.  By a Conveyance on Sale dated 8 October 1980 and registered in the District Land Offices, Yuen Long, by Memorial No. 238582, Ricas Properties became the registered owner of the Land.  The paper title of Ricas Properties is beyond dispute.

10.  The question is whether the right of Ricas properties to recover possession of the Land is extinguished as a result of the adverse possession by the Grandfather and Hui since 1960s as alleged.  The alleged adverse possession commenced prior to the amendment to the Ordinance in 1991.  In view of that, it is common ground that the relevant period for adverse possession was 20 years, instead of 12 years under the present statutory provision.

11.  It is the Defendants’ burden of proving the alleged adverse possession.  Mr Szeto for Ricas Properties emphasized that the evidence required must be compelling and self-serving statements should be approached with scepticism: see Wong Tak Yue v Kung Kwok Wai David [1998] 1 HKC 1 at 13A-C; Wu Yee Pak v Un Fong Leung & Ors [2005] 2 HKLRD 169 at 171F-G.

12.  Mr Wong for the Defendants pointed out that what the final court said in the above cases relates to the consideration of the issue of the intention of the adverse possession, not the issue of factual possession.  If the suggestion is that the cogency of evidence required for proving factual possession and the intention varies, I cannot agree.  The party alleging adverse possession has the burden to prove both the fact and the intention of the adverse possession by cogent evidence on the balance of probabilities.

13.  The periods of alleged adverse possession of the Land were as follows:

(1) the alleged possession by the Grandfather and Hui between 1960s and 1999; and

(2) the alleged possession of the Land by Hui through Armed Forces and/or Fairwise as his tenant since 1999.

14.  It is common ground that it is possible for a person to acquire the interest as an adverse possessor himself by way of succeeding the previous adverse possessor as a squatter in the land: see Ng Lai Sim v Lam Yip Shing & Anor, HCA 2963/1998 (22 November 1999).  The court in the O.113 decision in the present case in August 2008 came to a similar tentative conclusion on the applicable law: see paras.16-26 thereof.  However, it goes without saying that the court’s comments there on the affidavit evidence were never findings; and the evidence was first tested in the trial.

1960s to 1999

The Defendants’ evidence

15.  According to Hui, from 1960s to 1975, the Grandfather had used the Land to cultivate vegetables.  In about 1975, the Grandfather began to grow ginger flowers on the Land.  The Grandfather had hired plumber to install long pipes leading water from the hill to the Land for irrigation.

16.  Upon his emigration to Hong Kong in 1985, Hui joined the Grandfather in growing ginger flowers on the Land for sale.  The harvested flowers were bundled up for the flower merchandiser called “森記“.  The Grandfather and Hui lived at an unnumbered house which Hui identified on the plan as straddling between Lots Nos.1313 and 1314, i.e., not on the Land.  Upon the death of the Grandfather in December 1987, Hui succeeded as the squatter of the Land.

17.  The documents show that Hui came from the Mainland to settle in Hong Kong in 1985.  What he said in relation to the Grandfather’s alleged possession of the Land since 1960s up to that time is hearsay.  Such evidence has to be considered carefully in the light of the other evidence.

18.  In his declaration for the purpose of applying for the emigration of his family members, including Hui, from the Mainland to Hong Kong in 1984, the Grandfather reported his residential address to be “新界逢吉鄉第二菜站東記農場”, a vegetable farm in Fung Kat Heung.

19.  According to Hui, the Grandfather had been in continuous possession of the Land undisturbed for nearly 2 decades by the time when the Grandfather sought to apply for his family members to come to join him here.  In his declaration for the purpose of such application, the Grandfather mentioned his assets but not the Land.  Mr Szeto suggested that this should not have been the case, if the Grandfather had in fact considered the Land to be his property.

20.  The declaration was apparently prepared as a guarantee by the Grandfather to facilitate the intended application for his family to come to Hong Kong.  He referred to his cash in bank and gold that he would be prepared to give to his family as support to their livelihood after coming to Hong Kong.  The Land perhaps did not fall into this category of assets for such purpose.  I would not read too much out of this document.

21.  To support his evidence as to the state of the Land in the past, Hui produced various photographs. There are a couple of photographs depicting allegedly part of the ginger flower field on the Land.  Hui said he took them on the first day of the Chinese New Year in 1987.

22.  Some other photographs depict certain section of a water pipe; but the location on the Land where the photographs were allegedly taken is unclear.  One also cannot make out the routing of the pipe from the photographs.  According to Hui, the water pipe was installed by the Grandfather at the cost of HK$10,000 to divert water from the hillside via their house to the fields for irrigating the Land.  This is again hearsay without documentary support.

23.  The Defendants called Sze Yat Ming (“Sze”) as witness.  Sze is the majority shareholder and director of Armed Forces Trading as well as 50% shareholder and director of Fairwise.  Together with his two companies, Sze entered into the picture only in 1999.  He has no personal knowledge about the history of the Land.  It should also be noted that Hui confirmed in court that he had never recounted the history of the Land to Sze.

24.  Sze somehow suggested that one could see from the aerial photographs exhibited to his affirmation that the Land was cultivated with ginger flowers.  When it was pointed to him that this is virtually impossible, he sought to explain that what he referred to was not the exhibited photographs.

25.  Sze is not able to tell from his personal knowledge the history of the Land.  No weight could really be placed on his evidence in this respect.  As to his credibility, much will be said further below.

26.  The Defendants called Lam Chiu Yuen (“Lam”) as witness.  Lam claims to be the only witness with personal knowledge about the Grandfather’s occupation of the Land before Hui came to Hong Kong in 1985.

27.  Lam was born in 1967. According to him, his family then lived in 3 houses which were a minute’s walk from the Land.  He said he started to play around in the vicinity at the age of 5 to 6.  He said he witnessed the Grandfather growing vegetables on the Land. The vegetables harvested were taken to Market No.2 (or “第二菜站“) for sale.  This lasted until 1975 when the Grandfather approached Lam’s family for seeds for growing ginger flowers.  That was thought to be more profitable than growing vegetables.

28.  Mr Szeto submitted this court should be on guard about the evidence of Lam because he is not really an independent witness.  There is indeed basis for Mr Szeto’s scepticism.  The other 50% shareholdings in Fairwise were in fact vested in the 2 brothers of Lam and the wife of Lam.  It is indeed the Defendants’ case that the Lam brothers arranged the alleged tenancy to be entered into between Hui and Fairwise.

Ricas Properties’ evidence

29.  Ricas Properties called its director, Madam Poon Mui (“Poon”) as witness.  Poon is 82 years old.  According to her statement, her company came to purchase the Land through a middleman acting on behalf of the predecessor in title.  Her company had planned to develop the Land for business.

30.  According to her statement, she was brought to visit the Land several times to inspect the condition and the boundary of the Land prior to the purchase in 1980.  She was allegedly told that the predecessor in title had cultivated ginger flowers on the Land.  The sale and purchase agreement provided that vacant possession was to be delivered upon completion.  The predecessor in title undertook that all the ginger flowers on the Land would be removed by completion.  This, if accepted, would be evidence of the representation by the predecessor in title.

31.  Poon stated that after the completion, she had visited the Land and found that the ginger flowers had been harvested.  Since then, she had often visited the Land but did not notice any cultivation or any water pipe installations there.  Nor did she notice any occupation by person or change, except for abundance of weeds there.  She had visited the Land more than 5 times without obstruction since March 2007.  Sze confirmed that it was only after the commencement of these proceedings when Armed Forces Outbound erected a gate at the access to the Land.

32.  In court, it became apparent that Poon had difficulty in verifying what she stated above.  Her company owns about 10 pieces of land and she could not distinguish one from another without the assistance of her children.  She admitted that she did not personally inspect the Land after the purchase.  She was brought there but only to wait at a nearby restaurant for her children.  From there, she could not see her children enter the Land.  None of her children was called as a witness.

The aerial photographs

33.  There are various aerial photographs depicting Kam Tin area of Yuen Long including the Land.  The aerial photographs were analysed by Henry Chan Surveyors Ltd (“HCS”), the surveyor engaged on behalf of Ricas Properties and Eric Tang & Associates Ltd (“ETA”), the surveyor engaged on behalf of the Defendants.  As directed by the court, the surveyors issued their joint statement in September 2009.

34.  The aerial photographs were taken from 1980 onwards.  In other words, they do not cast any light on the alleged occupation and cultivation of the Land by the Grandfather prior to 1980.  At the beginning of the trial, Mr Wong sought to adduce into evidence aerial photographs taken from 1960 to 1979.  After hearing the parties, I ruled that it would take the opposite party by surprise.  Further, the surveyors also have had no opportunity to examine those photographs.  There is simply no justification for the late discovery of and reliance on those photographs.

35.  Nevertheless, the aerial photograph taken in November 1980 (i.e., one month after the completion of sale and purchase of the Land) shows that the Land was still under cultivation.  This is the joint observation of the surveyors.  To be fair, I should add that it is unclear whether the observation may still be consistent with the Land having just been harvested prior to the completion as Poon said.

36.  However, the surveyors also observed that aerial photographs show cultivation activities on the Land until 1987.  However no mention or complaint was made about any such cultivation activities since the acquisition of the Land in 1980.  This sounds unlikely, if Poon or her children had in fact visited or inspected the Land as often as she stated.  In view of the considerable scale and appearance of the cultivation, I have difficulty in accepting that they could be described as weeds, as Poon suggested.

37.  Further, the aerial photograph taken in 2003 shows that certain structures had already been erected on the Land.  More could be seen at various locations within the Land from the photograph taken in the subsequent years, presumably erected in connection with the war game site there.  If Poon or her children first came to know the existence of the war game site operation in 2007, this would mean they had not visited the Land in the past 4 years; otherwise they should have discovered these structures.

38.  Mr Szeto submitted that Poon was a truthful witness.  But the question is whether her evidence in respect of the inspection of the Land after its acquisition is reliable.  The fact, I find, is that the Land had not really been attended to by Ricas Properties since 1980, notwithstanding its acquisition allegedly for investment purpose.  Ricas Properties had not even erected any fence to demarcate the boundary of the Land acquired.

39.  According to their joint statement in respect of the aerial photographs taken from 1980 to 1998, the surveyors agree as follows:

(1) From 1980 to 1998, a structure was erected on Lot No.1345 adjoining the Land.

(2) From 1980 to 1987, fences were erected in the southern side of the Land. Some parts of the fences still existed during ETA’s site visit. HCS however pointed out that the fences were erected to envelope the neighbouring land and not the Land.

(3) In 1980 and 1981, the Land was under cultivation.

(4) In 1982 to 1987, the southern portion of the Land was under cultivation. In 1987, there was also cultivation in the north western and north eastern portions of the Land.

(5) In 1988 to 1990, no cultivation existed in the northern portion of the Land. Vegetation in the southern portion of the Land became dense.

(6) In 1991 and in 1994 to 1998, there was no cultivation on the Land at all.

40.  The surveyors differ in the following respects:

(1) HCS observed that cultivation activities in the northern portion of the Land had ceased since 1984. No significant change in the appearance of the vegetation covering the Land was observed in the following years. ETA observed that the planting beds were not obvious but could still be identified. They also inferred from the lack of overgrowth there since 1982 that that portion of the Land must have been under management.

(2) HCS observed that cultivation activities on the whole of the Land had ceased from 1988 to 1998, in view of the similar appearance of vegetation covering during that period. ETA found the texture and pattern of the vegetation on the southern portion of the Land were mostly the same as that on the adjoining Lot No.1345 from 1988 to 1993. Planting beds were obvious in most of the land parcels, indicating that cultivation existed.

41.  Except in respect of any technical methodology, the court is as good as the surveyors in observing what the aerial photographs depict.  Looking at the photographs, I agree with HCS that the Land was on the whole not cultivated after 1988.

Conclusion

42.  Unless the hearsay evidence of Hui is accepted in its entirety, there is certain vagueness in respect of whether and, if yes, exactly when in the 1960s the Grandfather started the alleged adverse possession of the Land.  Even assuming that Lam’s evidence is accepted, he could only tell the situation of the Land since 1972 to 1973.

43.  The objective evidence supports that the Land was on the whole under cultivation in 1980 and 1981. From 1982 to 1987, part of the Land was under cultivation.  Cultivation of the Land had ceased since 1988.  The Defendants’ case that Hui possessed the Land by cultivation all the way from 1987 to 1999 is contradicted even by the surveyors’ joint observation of the aerial photographs since 1988.

44.  In the circumstances, whilst I find Poon’s evidence in respect of her alleged observation of the Land in the past, I also have serious doubt as to whether Hui has continued to possess the Land by way of cultivation after the death of the Grandfather as he alleges.  According to Hui, he also moved to live in Tin Shui Wai in 2001.

The alleged tenancy in 1999

45.  In February 2007, Ricas Properties, through its former solicitors, Messrs Kitty So & Tong (“KST”), issued a letter of demand to Armed Forces Outbound.  A reply was received from Armed Forces Outbound under the letterhead of, among others, both Armed Forces Trading and Armed Forces Outbound.

46.  In the reply, Armed Forces Outbound suggested that it had been using the Land for over 15 years. So far it had never been approached by any owner of the Land and had never paid any rent.  It invited Ricas Properties to make proposal for resolving the matter.

47.  In March 2007, Ricas Properties, through KST, offered to sell the Land to Armed Forces Outbound at HK$500 per square feet.  If not accepted, Armed Forces Outbound would be required to vacate from the Land in 2 weeks.

48.  Armed Forces Outbound replied on the same day.  It suggested that the former occupier (or “舊有使用者”) of the Land had used the Land for horticulture and farming for about 20 years until he entered into co-operation with Armed Forces Outbound.  It had abundant evidence in support.  Armed Forces Outbound reiterated that so far no owner of the Land had approach it; and it had never paid any rent.  The person in charge (or “場主”) and Armed Forces Outbound considered the sale price offered by Ricas Properties was unreasonable.  It stated that it would stay at the Land.

49.  The dispute then went silent for half a year.  In September 2007, Ricas Properties, through its current solicitors, Messrs P C Woo & Co (“PCW”) renewed the complaint to Armed Forces Outbound about its trespass in the Land.  PCW received a reply from Messrs Francis Kong & Co (“FK”).

50.  FK suggested that they act for Armed Forces Trading which is allegedly the tenant of the Land.  Their client has been running Armed Forces Outbound on the Land for nearly 10 years. Millions of dollars were said to have been invested.   Their client pays monthly rent to the “landowner” and their client is entitled to carry on with its operation there.  Upon being shown PCW’s letter, the “landowner” denied any knowledge about Ricas Properties or its interest in the Land.

51.  PCW wrote back and asked FK to clarify the relationship between Armed Forces Trading and Armed Forces Outbound; and whether besides Armed Forces Trading, FK act for the latter as well.  They also asked FK to provide a copy of the alleged tenancy agreement in respect of the Land between Armed Forces and the person in charge or “landowner”.

52.  One week later, FK wrote back and stated that they were instructed to reply as follows:

(1) Their client was not obliged to answer any further question, including that regarding the relationship between Armed Forces and Armed Forces Outbound or the tenancy agreement between the “landowner” and their client.

(2) Their client was not obliged to answer or assist Ricas Properties to frame its case.

(3) Ricas Properties should contact the “landowner” directly and their client or they would not entertain any further enquiries in respect of the Land.

53.  In January 2008, Ricas Properties commenced originating proceedings, naming Armed Forces Trading and all persons in occupation of the Land as the defendants.  In view of the last unhelpful reply from FK on behalf of Armed Forces Trading, Ricas Properties’ decision to name Armed Forces Trading as a defendant is in my view understandable.

54.  After the commencement of legal proceedings, in February 2008, FK wrote to PCW clarifying that the tenant and occupier of the Land was and is Fairwise instead of Armed Forces Trading. This was also what Sze said in his evidence.  He explained that due to miscommunication, he mistakenly stated to the handling solicitor of FK that the solicitors act for Armed Forces Trading and that Armed Forces Trading is the tenant of the Land.

55.  The fact is that Armed Forces was incorporated in Hong Kong in May 1997.  In 1999, Fairwise was incorporated with the same registered office as Armed Forces Trading. According to Sze, Armed Forces used to a shareholder of Fairwise until he personally became the 50% shareholder in 2007.  He is also a director of Fairwise.  Fairwise registered a branch operating Armed Forces Outbound at Fung Kat Heung.  It address was Lots Nos.1305-1308 of DD No.107, not the Land.  Lot No.1305 is where Lam lives.

56.  According to Sze, he was and is the decision maker of Armed Forces Trading.  He was and is formally the decision maker of Fairwise; but if he was not around, Maggie Ho (“Ho”), the manager, would be in charge of the daily affairs.  The letters of reply on behalf of Armed Forces Outbound to KST in February and March 2007 mentioned above were indeed issued and signed by Ho.

57.  In court, Sze added that it is Armed Forces Trading at its business address at Kwong Wah Street, Kowloon, that receives customers who intend to hire the war game site at the Land and Armed Forces Trading would charge a fee for that.

58.  Considering all the circumstances, whilst Armed Forces Trading is strictly a separate entity from Fairwise, it is in reality artificial to suggest that the war game site operation is the business of Fairwise and distinct from that of Armed Forces Trading.

59.  Regarding FK’s letter in September 2007, the alleged mistake of Sze in giving instruction in respect of which company has been the alleged tenant of the Land since 1999 and hence which company was FK’s client is difficult to understand.  If there was a genuine mistake, it could have been explained particularly when PCW specifically asked for clarification.  As mentioned above, this met with FK’s utterly unhelpful refusal to entertain any further correspondence. From the correspondence, it can be seen that the handling solicitor of FK is apparently the same solicitor of the current solicitors acting for the Defendants.

60.  FK’s letter in September 2007 also contradicted the replies by Ho on behalf of Armed Forces Outbound in February and March 2007.  Ho made clear that they had never been approached by the owner or anyone in connection with the owner of the Land. They had also never paid any rent for the use of the Land.

61.  There used to be contention that the above replies by Ho for and on behalf of Armed Forces Outbound amounted to acknowledgement of title; and therefore the time limitation should run since then pursuant to section 23 of the Ordinance.  In the trial, Mr Szeto made clear that this contention is no longer pursued.

62.  In the O.113 decision in August 2008, the court suggested that these replies were given without legal advice.  In my view, legal advice would have been immaterial.  Ho made clear in her replies that those were the instructions of the persons in charge of the war game site operation (or “本中心負責人”).  The persons in charge of the war game site operation could only be Sze or the Lam family. These are clearly matters of fact that Ho was capable of knowing, in her position as manager, according to Sze, since 2004 or 2005.

63.  The stance expressed by Ho in her replies was also in line with the evidence of Poon as to what happened at about that time.  According to Poon, she once filed a report to the police then about trespass of the Land.  During the police investigation, one Mr Lam came to suggest that Armed Forces Outbound was the lawful tenant of the Land.  Sze was said to be the person operating the war game sites.  Lam asked Poon to talk directly with Sze on the telephone as Sze was said to be willing to rent the Land at the annual rent of HK$10,000.  Poon did that on the following day.  But Poon was not prepared to grant a lease for the requested term of 5 years.  When cross-examined in this respect, Sze merely claimed no impression or certain recollection about such conversation with Poon at that time.

64.  Even with legal advice, FK’s letter in September 2007 still contradicts the Defendants’ case that the rent under the alleged tenancy agreement was payable yearly, instead of monthly as FK’s letter suggested.

65.  In court, Sze denied any knowledge about these replies by Ho until after 2008.  Surprisingly, he went so far as denying knowledge about instructing FK in 2007.  He suggested that the manager might have instructed FK without his prior approval.  But as to whether he had issued the cheque for putting FK with costs on account, he offered no credible explanation.  As to why he stated in his affirmation about the alleged mistake in his own instruction to FK in September 2007, if he had not even approved instructing the solicitors, he offered no credible explanation either.

66.  I have no reservation in concluding that Sze is not a credible witness.  I reject his evidence.  Is there other objective evidence in support of the alleged tenancy agreement between Fairwise and Hui?  In my view, the answer is in the negative.

67.  The Defendants’ witnesses seem to suggest that it is common practice to conclude tenancy agreement in respect of rural land in the area verbally.  Yet at the same time, Sze said in court that various plots of land adjacent to the Land were rented pursuant to written tenancy agreement with the relevant tso.

68.  Such a tenancy agreement, and its contracting parties, could have been easily proved by documents evidencing the payment of the annual rent as alleged.  According to Sze, the rent was paid by cash or cheque.  Insofar as cheque is concerned, Sze is in fact one of the signatories.  Even assuming that the rent was paid by cash, there should be business records.  After all, operating the war game site on the Land was the primary business activity of Fairwise.  However none of the relevant documents has been disclosed.

69.  Considering all the evidence, I have no doubt that the Land came to be used as a war game site because of the involvement of the Lam family.  As Sze said in court, he chose to co-operate with them because they were residents there.  Lam was also the village representative.  The Lam family was supposed to contribute towards 50% shareholding of Fairwise.  Yet they have yet to pay up the capital.  What did the Lam family offer as investment?  All these could be telling features.

Conclusion

70.  Mr Szeto submitted that Sze, Lam and Hui run a concerted defence and the credibility of their evidence should be scrutinised together.  I agree.  Considering all the evidence, I am not satisfied that the Grandfather had possessed the Land by way of cultivation in the 1960s as alleged.  Even taking his evidence at its highest, which I am not prepared to, Lam could only tell what happened in 1972-1973 onwards.  Even assuming that the Grandfather had continuously possessed the Land since then until 1985 and together with Hui until 1987, I find that possession by such cultivation ceased afterwards.

71.  It was years later when that the Land fell into the use as the war game site.  Both Armed Forces Trading and Fairwise (as Armed Forced Outbound) exert control over the use of the Land.  This certainly involved the Lam family but no tenancy agreement with Hui as alleged.  There is no possession of the Land by Hui through Armed Forces Trading or Fairwise as its tenant as alleged.

72.  Adverse possession for the required period is not proved.  I find that Ricas Properties is entitled to recover possession of the Land.  Since no evidence is adduced in support of the claim for damages, I make no award of damages for trespass.

Order

73.  In line with the prayer, I give the following orders against all the Defendants:

(1) Order that all the Defendants deliver up vacant possession of the Land (as defined and delineated in the plan marked as “Annexure 1” to the Re-amended Originating Summons herein) to Ricas Properties within 60 days;

(2) Injunction that all the Defendants do remove at its own cost all the structures and cease all matters of trespass on and over the Land;

(3) Injunction restraining all the Defendants, whether by themselves or agents or servants or otherwise, directly or indirectly or howsoever, trespass on or over the Land;

(4) Order that the counterclaim be dismissed.

74.  I make a nisi order that all the Defendants do pay Ricas Properties' costs of this action, including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel.  In the absence of application in 14 days to vary, the costs order shall become absolute.