LAM MAN LAU AND ANOTHER v. SECRETARY FOR JUSTICE

DCCJ 1682/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1682 OF 2012

--------------------

--------------------

---------------------

JUDGMENT

---------------------

A. INTRODUCTION

1.  The present case concerns a strip of L-shaped land adjoining Lot No 313A in Demarcation District 124 (“DD 124”), Yuen Long, the New Territories (“the Land”).  It is a piece of government land situated in Shek Po Tsuen (石埗村).  I append to this judgment the survey sheet annexed to the Amended Statement of Claim, where the Land was highlighted pink.

2.  The plaintiffs claim that, by reason of their uninterrupted occupation of the Land for at least 60 years, the government’s right to recover the Land has been extinguished.  They thus claim declarations for asserting their possessory title of the Land.

3.  The defendant is sued in his representative capacity for the government.  In addition to defending the plaintiffs’ claim, the defendant counterclaims for vacant possession of the Land, and mesne profits for the plaintiffs’ trespass.

4.  In order to understand the parties’ arguments, an outline of the locality of the Land is necessary.  The following information can be extracted from the documents registered at the Land Registry:-

(1) Lot No 313A was part of a larger piece of land known as Lot No 313.  In the Schedule to the Block Crown Lease of DD 124, Lot No 313 was stated to be 0.20 hectares in size. 

(2) Lot No 313 was acquired by Lam Wan Tsoi on 13 June 1917.  Lam Wan Tsoi was also known as Lam Kong Wing (林降榮).  The memorial was signed on his behalf by his eldest son Lam Kwong Tat (林廣達).

(3) Lam Wan Tsoi passed away in around 1933.  Lot No 313, amongst other plots of land owned by Lam Wan Tsoi in DD 124, was succeeded by his children Lam Kwong Tat, Lam Kwong Yiu (林廣耀), Lam Pi Luk (林庇祿), and Lam Pi Yau (林庇祐).

(4) On 14 June 1941, the 4 children sold various plots of land, including Lot No 313, to Lam Kong Wing Tso (“the Tso”) and Lam Kwong Tat as the trustee of the Tso.

(5) Lam Kwong Tat passed away in around 1973.  On 13 August 1973, Lam Chat Man (林則文), the son of Lam Kwong Tat, was appointed the new manager of the Tso.

(6) Lot No 313 was subdivided into Lot No 313A, Lot No 313B, and Lot No 313RP in 1993.  The Tso assigned Lot No 313A to Lam Ka Lok.  Lot No 313RP was further subdivided into Lot No 313C and Lot No 313RP in 1994.

(7) The Land is to the north, northwest and west of Lot No 313A.  Lot No 313B is to the east of Lot No 313A. Lot No 313C and Lot No 313RP are to the east and southeast of Lot No 313B.

5.  The Land was in the middle of Shek Po Tsuen, surrounded by other plots of land.  Some, but not all, of the villagers are members of the Tso.  The 1^st plaintiff said the Tso now has 60 members.  The whole Shek Po Tsuen had 500 inhabitants by around 1973.

6.  Lam Chat Man passed away in late 1996.  Subsequently, the 2^nd plaintiff were appointed as the new managers of the Tso. 

7.  The 1^st plaintiff was the son^[1] of Lam Chat Man.  He claims to be in control of the Tso’s land since his parents passed away.

8.  The plaintiffs further claim that Lam Kwong Tat, the Tso, Lam Chat Man, and then the 1^st plaintiff were in exclusive possession of the Land, continuously and uninterrupted for over 60 years.  Therefore, the defendant’s right to recover possession of the Land as the paper title owner has been extinguished as a result of ss 7(1) and 17 of the Limitation Ordinance (Cap 347) (“the LO”).

9.  The defendant argues that (i) there was no adverse possession of the Land by the plaintiffs; (ii) even if there was adverse possession of the Land, such possession did not last for more than 60 years, either because (a) the government took action to recover possession of the Land before there was 60 years of possession; and/or (b) because the length of adverse possession was calculated afresh since the establishment of the Hong Kong Special Administrative Region in 1997.

B. PRELIMINARY ISSUES

10.  Before I go into the disputes between the parties, I need to dispose of 2 preliminary issues.

B1. Preliminary issue 1: jurisdiction of this court

11.  In the course of the trial, I raised with the parties whether this court has jurisdiction to hear the present case.

12.  In Wong Kum Chi v Lee Tit Ying [2002] 1 HKLRD 420, HH Judge Lok (as Lok J then was) held that s 36 of the District Court Ordinance (Cap 336) (“the DCO”) was not itself a “jurisdiction-conferring” provision.  This means that s 36 only imposes additional limitation on the jurisdiction of this court to deal with disputes concerning land.  The court can only have jurisdiction if the case falls under any of ss 32, 33, 35 and 37 of the DCO.  The learned judge repeated the same reasoning in Harvest Development Ltd v The Personal Representatives of the Estate of Liu Wa Fuk, deceased DCMP 1367/2006 (HH Judge Lok; 19 September 2007).

13.  Other than s 36, the only possible section which may give jurisdiction for this court to hear cases like the present is s 35.  There may be a question as to whether s 35 indeed so confers the jurisdiction.  That section provides:-

“The Court has jurisdiction to hear and determine any action for the recovery of land, where the annual rent or the rateable value of the land, determined in accordance with the Rating Ordinance (Cap 116), or the annual value of the land, whichever is the least, does not exceed $240,000.”

14.  It may be argued that the plaintiffs’ claim for declarations is not to recover any land, and thus it does not fall within s 35.

15.  The 2 cases decided by HH Judge Lok were referred to in Fu Sum v Fu San Fat [2008] 5 HKLRD 271.  I accept the submissions of Ms Teresa Wu, counsel for the defendant, that Chung J’s reference should be treated as obiter, as the jurisdiction of the District Court did not call for determination in that case.

16.  Wong Kum Chi can be contrasted with Ma Yu Cheung v Yu Wai Chun DCMP 268/2001 (HH Judge A Cheung; 22 November 2001), in which the plaintiff purchaser sought a declaration against the defendants vendor that there was a repudiation by the defendants of the sale and purchase agreement of a property between them.  The learned judge (as the Chief Judge then was) accepted that, on a fair reading of s 36, one would arrive at a conclusion similar to that in Wong Kum Chi.  But he went on at §§26-27:-

“26. But is that the correct construction? The District Court Ordinance was amended last year to give the court extended jurisdiction in civil matters. The monetary jurisdiction has been increased from the previous amount of $120,000 to $600,000 and other jurisdictions have been increased as well or added to the District Court, and, amongst others, section 36 has been added alongside section 35 and section 37. In my judgment, the intention behind these amendments in general, and the intention behind section 36 in particular, must have been to give the court some, albeit not unlimited, jurisdiction to deal with, amongst other things, land matters and one important land matter which the courts deal with all the time is a title problem.

27. So, in my judgment, section 36 should not be construed in such narrow way as I have indicated, although a literal reading of section 36 would require such a construction.  For my part, I am quite prepared to construe section 36 to mean that the court has jurisdiction to hear any action concerning title to an interest in land if the jurisdictional limit set down in subsection (a) or (b) has been satisfied. In order to literally achieve this construction, I must confess one needs to construe, where necessary, the word "and" appearing immediately after the phrase "within the jurisdiction of the court" as "or".  So, in other words, in my reading of section 36, the section should be construed as saying, where necessary (ie if the other sections do not confer jurisdiction), that the court has jurisdiction to hear and determine any action which would otherwise be within the jurisdiction of the court or in which the title to an interest in land comes into question if the jurisdictional limit in subsection (a) or (b) is not exceeded.”

17.  Deputy Judge Winnie Tsui followed the liberal interpretation of s 36 adopted in Ma Yu Cheung in Ng Cho Chu Judy v Chan Wing Hung [2016] 1 HKLRD 1073. 

18.  Mr Tony Ko, counsel for the plaintiffs, additionally submits that jurisdiction for this court to hear the present case can also be derived under s 35.  In Wang Hanzhen v The Personal Representative of Li Kuen, alias Kwok Chun DCMP 3269/2014 (Deputy Judge Liu Man Kin; 17 February 2016), the learned judge referred to Jourdan and Radley-Gardner, Adverse Possession (2^nd ed, 2011) at §1-14, in which the authors submitted that the words “action to recover land” in what is equivalent to s 35 should be construed to cover actions premised on a claim of adverse possession.  The authors further referred to authorities from Ireland, Australia and Malaysia to support their proposition.

19.  Ms Wu submits that the passages in Adverse Possession, as cited by Deputy Judge Liu Man Kin, did not appear to have support of any English case.

20.  There is no binding authority on whether this court has jurisdiction to hear an adverse possession claim asking for declaratory relief, and if so, from where the jurisdiction is derived.  I prefer to find jurisdiction by following the liberal approach of interpretation adopted by Ma Yu Cheung.  I find it particularly persuasive because s 36 must be understood in its legislative context.  It was clearly introduced, together with other amendments to the DCO, to enlarge the jurisdiction of the District Court.  It will be contrary to the purpose of s 36 if it is to be literally and narrowly construed.

21.  The Writ of Summons and the Statement of Claim, in their original form, did not contain any reference to any provision of the DCO as conferring jurisdiction on this court, contrary to the requirement under §4 of Practice Direction 27.  In the course of the trial, Mr Ko applied to amend the Statement of Claim by adding a paragraph stating that this court has jurisdiction to hear the present case under s 35 and/or s 36 of the DCO.  I granted leave to amend the Statement of Claim as per the draft submitted to me at trial, with costs of and occasioned by the amendment be to the defendant, to be taxed if not agreed.

B2. Preliminary issue 2: amendment of the Writ of Summons

22.  At the close of Mr Ko’s opening in court, I noted that the area highlighted green, denoting the Land, in the Writ of Summons did not appear to tally with the area highlighted pink in the Statement of Claim.  Mr Ko acknowledged there was such difference, and applied to amend the Writ of Summons.  Ms Wu opposed to the application.  After hearing counsel’s submissions, I made the following orders:-

(1) Application to amend the Writ of Summons be allowed to rectify the area shaded in green in the Lot Index Plan attached thereto to correspond to the area shaded pink in the survey sheet annexed to the Statement of Claim;

(2) Service of the amended Writ of Summons be dispensed with;

(3) Costs of and occasioned by the amendment be to the defendant, to be taxed if not agreed.  For the purpose of taxation, 30 minutes of the 1^st day of trial be apportioned to the application.

23.  As indicated during the trial, I now give my reasons for allowing the application.

24.  I agree with Mr Ko that the application would bring minimal impact on the parties’ conduct of the trial, despite it being raised very late.  For example, the experts instructed by the parties commented on the boundary of the Land on the basis that it covered the area shaded pink in the Statement of Claim.  Witness statements were also prepared on the basis that the plaintiffs claimed adverse possession over the area shaded pink in the Statement of Claim, but not the area shaded green in the Writ of Summons.  Mr Ko also relied on Hong Kong Civil Procedure 2016 §20/8/6 to submit that the amendment would allow this court to determine the real dispute between the parties.  He submitted that the plaintiffs should not be punished for mistakes made in the conduct of their cases.

25.  I do not agree with Ms Wu that the defendant would be disabled from making use of the discrepancy between the 2 shaded areas to advance the defence.  It would still be possible for Ms Wu to cross examine the plaintiffs’ witnesses on such discrepancy in order to discredit the plaintiffs’ case.  Ms Wu also accepted that, otherwise, the defendant did not appear to suffer from any other prejudice.

C. LEGAL PRINCIPLES ON ADVERSE POSSESSION

26.  There is no dispute as to the applicable legal principles.

27.  It is trite that, under ss 7(1) and 17 of the LO, the right of the government to sue any squatter to recover possession of any government land is extinguished if the government do not take action for 60 years from the date when the squatter first possessed the government land.

28.  A squatter must show he has both factual possession of the land in question and the requisite intention to possess for the whole of the 60-year limitation period in order to establish possessory title based on adverse possession against the government: Wong Tak Yue v Kung Kwok Wai & Another (No.2) (1997-1998) 1 HKCFAR 55.  A tso, like the Tso here, can mount a claim in adverse possession: Chow Tin Sang as manager of Chau Fuk Tso v Citihero International Limited (Deputy Judge Lok; 4 May 2012).

29.  In Powell v McFarlane (1979) 38 P&CR 452, 470-471, Slade J held as follows:-

“Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. ... The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. ... Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

30.  Mr Ko invites me to also consider Buckinghamshire County Council v Moran [1989] 3 WLR 152, 167:-

“... Russell LJ in George Wimpey & Co Ltd v Sohn [1967] Ch 487, 511A similarly observed: ‘Ordinarily, of course, enclosure is the most cogent evidence of adverse possession and of dispossession of the true owner.’ While Mr Dogulas pointed out that the plot was always accessible from the north where no boundary demarcation existed, it was only accessible from the defendant’s own property, Dolphine Place. In my judgment, therefore, he must be treated as having enclosed it.”

31.  Further, he refers to Chow Tin Sang at §83, where Deputy Judge Lok commented on the lack of complete fencing by the squatter:-

“ ... Unlike many other cases where the land in question is an open land, the Land here is situated on a slope. Apart from the natural barriers, the plaintiff and his family had taken steps to enclose the Land, including the building of the retaining wall on the south side and the planting of bamboo on the north side. Further, one of the peculiar features in the present case is that the plaintiff has all along been under the mistaken belief that the Land belonged to the Tso, and that is why the plaintiff’s family had used the Land for cultivation purpose for many years. There is also concrete pavement in the narrow stretch of Government land between the House and the Land, and the whole surroundings give me the impression that the Land is the backyard of the plaintiff’s House ...”

32.  In Wong Tak Yue (No.2), Li CJ had this to say with respect to the requisite intention to possess (at 68):-

“The requisite intention to possess has been referred in various authorities under its Latin tag “animus possidendi”.  I shall refer to it simply as the intention to possess.  As Slade J observed in Powell v McFarlane (1979) 38 P & CR 452 at pp 471-472, the intention to possess requisite for adverse possession:-

 ... involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

33.  In Lee Bing Cheung v Secretary for Justice [2013] 3 HKC 511, Deputy Judge Marlene Ng said the above passage led to several consequences.  First, although the squatter must intend to exercise exclusive control for his own benefit, he need not have a conscious intention to exclude the true owner.  It is enough that the squatter intends to exclude the owner “as best as he can” or “so far as reasonably practicable and so far as the process of the law allows”.  Secondly, an intention to own the land or even an intention to acquire ownership is not required for establishing the animus possidendi.  Thirdly, the animus possidendican be established even if the squatter mistakenly believes himself to be the owner of the land.

34.  Ms Wu emphasises that the evidence the plaintiffs have to adduce must be compelling: Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498, 500D-E.  She also notes that the plaintiffs’ claim largely rests on self-serving statements.  She invites me to view these statements with skepticism, and I should scrutinise the circumstances in which the statements were made with care: Wong Tak Yue (No 2) at 69B.

D. IDENTIFYING THE END DATE OF THE 60-YEAR PERIOD

35.  The first step to analyse the plaintiffs’ claim is to identify the date on which the defendant successfully interrupted the plaintiffs’ possession of the Land.

36.  The plaintiffs say that their exclusive possession of the Land only ended when a Summons was issued to the 1^st plaintiff in FLS 13886/2011 on 12 November 2011, alleging the 1^st plaintiff of unlawfully occupying the Land, contrary to s 6(4) of the Land (Miscellaneous Provisions) Ordinance (Cap 28) (“the LMPO”).

37.  The defendant says that the 60-year period should be dated back from 27 October 2003, or alternatively, sometime in June 2005.  It is necessary to detail the facts to understand this argument.

38.  On 28 May 2003, the 1^st plaintiff applied in writing to the District Lands Office of Yuen Long (“the DLO/YL”) to rebuild a small stone house.  He stated the address of the small stone house to be No 195 Shek Po Village, Hung Shui Kiu (“House 195”).  The 2^nd plaintiff also signed on the letter as the managers of the Tso.  The application was renewed in another letter dated 3 July 2003.

39.  On 19 August 2003, the DLO/YL replied and stated that House 195 situated on government land.  The investigation carried out by the DLO/YL also revealed that there were other buildings built on government land[2]. Correspondence then ensued between the 1^st plaintiff (and subsequently, his solicitors) and the DLO/YL.  The 2 sides differed as to whether House 195 was indeed built on government land, or it was actually within the boundary of the former Lot No 313.

40.  The matter was also referred to the Squatter Control unit of the Yuen Long (North) Office, the Housing Department.  On 27 October 2003, the Squatter Control unit wrote to the 1^st plaintiff, stating that, on the information of the DLO/YL, House 195 was built on government land.  The 1^st plaintiff was requested to desist from any reconstruction of House 195, and to demolish it instead.

41.  By 6 June 2005, the Squatter Control unit decided to take action.  By then, the 1^st plaintiff already constructed a metal framework near House 195.  Workers were sent to the Land on 9 June 2005 to remove the metal framework.  During the site inspection that took place on 20 May 2016, it appears that metal frames were also put up by those workers.

42.  By 22 February 2006, the DLO/YT issued a notice pursuant to s 6(1) of the LMPO, requiring any occupier to cease unlawful occupation of the Land before 22 April 2006.  The notice was posted up around the Land.  On the same day, another letter by the Squatter Control unit was issued to demand any occupier to demolish any unauthorized structure on the Land before 22 April 2006.

43.  Further notices issued under s 6(1) of the LMPO were posted by the DLO/YL on the Land on 22 September 2009, 7 June 2010 and 20 April 2011.  As the plaintiffs were still in occupation of the Land, the DLO/YL finally applied to have a Summons issued pursuant to s 6(4) of the LMPO under FLS 13886/2011 on 12 November 2011.

44.  As to what is sufficient to break the possession of a squatter, Mr Ko refers me to Law Bing Kee v Persons in Occupation of RP HCMP 2270/2009 (Recorder A Ho, SC; 8 March 2013) at §3:-

“... Indeed, as was held in Zarb v Parry [2012] 1 P&CR 10, once an adverse possessor has taken possession, time starts to run against the paper title owner. In order to prevent time running against him, it would be necessary for the paper title owner to bring the factual possession of the wrongful possessor to an end, which would require the former to take back possession to the exclusion of the squatter ...”

45.  He submits that it is a factual question as to whether the factual possession of a squatter has been brought to an end by the acts of the paper title owner. 

46.  Smith v Waterman [2003] EWHC 1266 (Ch) also sheds light on this particular respect at §§60-64:-

“60. It is incorrect in law to hold that merely by going on to the land the owner can thereby resume possession so as to interrupt the continuity of possession of the land by another where, from the evidence, that other is clearly in factual possession ...

63. Once a trespasser is in factual possession of the land, it is a question of fact whether and in what circumstances the true owner can be said to have retaken possession.  If it is clear that the trespasser has gone out of possession and the land is vacant, very little is needed on the true owner’s part to indicate a resumption of possession.  Some act indicating an intention to resume possession suffices ... But if that other is still in factual possession ... something rather more than a mere entry ipon the land by the true owner, coupled with an intention to possess, is needed ...

64. In my judgment, an inspection of the land with a view to the erection of a boundary fence or its sale cannot, viewed against the judge’s findings elsewhere of the nature and continuity of Mr Smith’s physical possession of it before and after both incidents, give rise to a break in the continuity of his possession of the land ... Were it otherwise, it would be open to any owner to cause time to start running afresh merely by walking on to the land ...”

47.  From the correspondence summarised above, it cannot be said that the plaintiffs left the Land vacant from 2003 onwards.  There were buildings, claimed to be owned by the plaintiffs, then standing on the Land, and the 1st plaintiff was actively seeking to carry out construction work on the Land.  Hence, I find it not sufficient to break the continuous possession of the plaintiffssimply by the defendant asserting its ownership, and posting notices at the Land.

48.  Ms Wu submits that the clearance action in June 2005 was an act sufficient to show that the defendant took back possession of the Land, or at least to the extent of the part of the Land not already having any permanent structure built by the plaintiffs on it.  She prays in aid Worssam v Vandenbrande (1868) 17 WR 53.

49.  In my judgment, Worssam does not assist Ms Wu’s arguments, and I do not agree that the clearance action in June 2005 was sufficient to put a stop of the plaintiffs’ possession of the Land.  In Worssam, the trespasser only put up a fence to show he possessed the land in question, but that was removed by the paper title owner.  As there was no other evidence to show that the trespasser possessed the land, the paper title owner’s action was accepted as sufficient to regaining possession.  In the present case, the metal frames demolished by workers sent by the Squatter Control unit was not the only thing that the plaintiffs had to show they were in possession of the Land.  In my judgment, it is also not reasonable to notionally divide up the Land into different portions to consider whether the defendant regained possession of it.  From the correspondence referred to above, the parties never treated the possession of the Land other than as one single act.

50.  Based on my analysis above, I find the 60-year period ended by 12 November 2011, when the Summons in FLS 13886/2011 was issued.  In order show the defendant’s title over the Land has been extinguished, the plaintiffs thus have to show that they, together with their predecessors, have been in adverse possession of the Land since at least November 1951.

E.THE PLAINTIFFS’ CASE

51.  In the Amended Statement of Claim, the plaintiffs pleaded that the following acts showed that the Tso, with the management and control of Lam Kwong Tat, was in exclusive possession of the Land since at least November 1951 (and indeed, much earlier than that):-

(1) It is pleaded that, since the early 1920s, Lam Kwong Tat grew sugar cane on the Land.  Bamboo trees were planted at the boundary of the Land as demarcation.  Later, fruit trees were also grown: §§6-7.

(2) In around 1950, Lam Kwong Tat erected a wall on the west and north side of the Land: §8.

(3) Lam Kwong Tat built a public lavatory on the Land for the exclusive use of the Tso’s members, and he was in sole management and control of it: §9.

(4) In around 1960, Lam Kwong Tat leased part of the Land to a Madam Tam.  Madam Tam, with Lam Kwong Tat’s consent, built a wooden hut on the Land: §10.  Throughout trial, this hut has been referred to as “the Tam House” (譚婆屋).  Madam Tam’s family moved out after 1971.  The 1^st plaintiff’s mother, with Lam Kwong Tat’s consent, used the Tam House as temporary storage, and also leased it out to various tenants at times: §11.

52.  The plaintiffs called 2 witnesses to give evidence at trial: the 1st plaintiff, and Lam Chau Shing.  Lam Chau Shing is the son of Lam Pi Yau, one of the younger sons of Lam Wan Tsoi. Hence, Lam Chau Shing is the 1st plaintiff’s uncle.  He is also one of the current managers of the Tso.

53.  The events referred to in §51 above, allegedly showing the exclusive possession of the Land by the Tso and Lam Kwong Tat, are largely unsupported by documents.  Therefore, it is necessary for me to assess the credibility of the plaintiffs’ witnesses.

54.  As a general impression, I have formed the following views about the plaintiffs’ witnesses:-

(1) I have a dim view of the 1^st plaintiff’s credibility.  His evidence changed over time.  My general impression is that either he did not actually have a clear memory of what he was told about the possession of the Land, or he was (consciously or otherwise) trying to fit his evidence with his convicted view that the Land must have been part of the land owned by the Tso.  Either way, this makes his evidence unrealiable.

(2) Clearly, the mastermind of the Tso, and of the present case, has always been the 1^st plaintiff. For Lam Chau Shing, he appears to me to be not interested about whether the Land indeed belonged to the defendant.  Thus, unless it was something personal to him, I do not believe he would have a vivid memory about events that happened on the Land at least 50 years ago, because it has never been of his concern.

55.  Together with the reminder of the Court of Final Appeal in Wong Tak Yue (No 2), I remind myself to approach the evidence of the plaintiffs’ evidence with circumspect.  It is with that reminder I proceed with analyse the plaintiffs’ claim as set out in §51 above.

E1. Planting different vegetation

56.  The 1^st plaintiff said he lived with his grandfather Lam Kwong Tat in the same house not far from the Land when he was small.  Since as a child, his grandfather repeatedly told him that mango and longan trees were planted on the Land by his grandfather.  Under cross examination, he said when he was small[3] (in the 1950s), the trees were already very tall.  He thus guessed that the trees must have been planted there for over 20 years.

57.  Also in his witness statement, he said the grandfather told him that, on the north and northwest part of the Land where it adjoined the neighbouring plots, bamboo trees and thorns (棘樹) were planted to mark off the boundary of the Land. Within the boundary, Lam Kwong Tat had absolute right and control over the use of the land.

58.  Lam Chau Shing said he was told bamboo trees and 臭花樹 were planted by Lam Kwong Tat at the boundary of the Land.  He also said that there were fruit trees planted on the Land, and he picked fruit from them.

59.  Various aerial photos of the Land and the neighbouring lots were collated and commented on by experts^[4] instructed by the parties.  Both experts, Mr Leung Shou Chun (appointed by the plaintiffs) and Mr Au Chi Ho (appointed by the defendant) included an aerial photo taken in 1924, and another in 1945.  Both photos were of such a low resolution that the user of the Land cannot be identified.  Mr Au, however, commented that there appeared to be no agricultural activity on the Land in these photos.

60.  I do not find Mr Au’s comments as necessarily showing the 1^st plaintiff’s evidence unbelievable. The plaintiffs never claim that Lam Kwong Tat planted the trees in an organised or commercial way.  I do not think the dense vegetation shown in the aerial photos as necessarily inconsistent with the 1^st plaintiff’s evidence.  The expert opinion on this point, in my view, does not assist this court in assessing the 1^st plaintiff’s evidence.

61.  As such, it remains for me to consider whether I should accept the evidence of the plaintiffs’ witnesses by assessing its reliability and probative value.

62.  Ms Wu submits that her cross examination exposed the 1^st plaintiff’s evidence as internally inconsistent and contradictory to the plaintiffs’ pleaded case.

63.  First, in his oral evidence^[5], instead of saying thorns (棘樹), the 1^st plaintiff said it was bambusa (簕樹) that was planted to mark off the boundary.  Ms Wu suggests that the 1st plaintiff is giving inconsistent evidence, since he must have read the witness statement before he signed off the statement of truth.  After listening to the 1^st plaintiff, I am not prepared to rule that his evidence is contradictory on this point.  I am prepared to accept that this may only be his misunderstanding that 棘 should be pronounced as 簕.  There is no evidence showing that the 1^st plaintiff must have been aware the difference between these 2 species of plants.  I am content to accept the 1^st plaintiff’s evidence as saying that there were allegedly thorny tress planted together with bamboo trees.

64.  Secondly, only bamboo trees were said to be grown on the boundary of the Land in the Amended Statement of Claim. There was no mention of thorns or bambusa.  It was only mentioned in the 1^st plaintiff’s witness statement that thorny trees were also planted by Lam Kwong Tat as demarcation.

65.  More importantly, Ms Wu says the 1^st plaintiff’s evidence did not tally with the Land Registry records.  The record shows that Lot No 313 was acquired by Lam Wan Tsoi, the 1^st plaintiff’s great-grandfather in 1917, and was succeeded by, amongst others, Lam Kwong Tat in 1933.  This is contrary to the 1^st plaintiff’s evidence that, after his grandfather purchased Lot No 313, he also went into possession of the Land and planted trees on it.  This seems to also be inconsistent with the Amended Statement of Claim that the planting of trees on the Land occurred as early as the 1920s. 

66.  I do not think the 1^st plaintiff gave any satisfactory explanation in cross examination.  Further, he admitted that Lam Kwong Tat never said whether the bamboo tress and thorny trees were planted by himself, or they were already there when his grandfather went into possession of the Land.  But he unequivocally said in his witness statement that it was Lam Kwong Tat who planted the bamboo tress and thorny trees as demarcation.

67.  I agree with Ms Wu that the evidence provided by the plaintiffs’ witnesses fell short of being cogent and compelling, in the words of Chan PJ in Wu Yee Pak.  I do not think it right for me to rely on their evidence to find that Lam Kwong Tat must have been planting trees on the Land.  In my judgment, the plaintiffs have not shown, on a balance of probabilities, that Lam Kwong Tat was in possession of the Land by planting trees on it since the 1920s.

68.  Moreover, I find there is insufficient evidence to show that Lam Kwong Tat must have exclusive possession of the Land since the 1920s.  Such alleged exclusive control was only the 1^st plaintiff’s assertion – there is no evidence to even indicate how it might have been carried out by Lam Kwong Tat at that time.

69.  I am also unable to assign any weight to the bamboo trees and thorny trees as evidence of exclusive possession. I find the plaintiffs unable to prove that it must be Lam Kwong Tat who planted those trees.  As such, the plaintiffs cannot rely on this act to show Lam Kwong Tat had the requisite animus possidendi. 

E2 .The wall

70.  The 1^st plaintiff said his grandfather told him that, around 4-5 years after the end of the World Wall II, he and his brother Lam Pi Yau built a wall at the outer boundary of the Land with stones.  The wall was around 2 metres tall, and was located at where Structure 1 was on survey sheet attached to the Amended Statement of Claim.

71.  Lam Chau Shing said he witnessed the building of the wall by his father Lam Pi Yau, and his uncle Lam Kwong Tat.  He was by then 11 or 12 years old[6]. Bamboo trees and thorny trees that originally stood at the boundary of the Land were cut down to make way for the wall.

72.  The wall was built, so the witnesses were told, to prevent strangers from entering the Land.  It was said that strangers could easily pass through the bamboo tress and thorny trees. 

73.  The plaintiffs point to 2 family photos to support their case that the wall must have been built by 1950.  The 2 photos were undated.  The 1^st plaintiff said they were taken at the same time, and he was around 8 years old in one of them, so they might have been taken in around 1962.  His mother, his grandmother and his brothers were also in the photos.  In these photos, the plaintiffs’ witnesses confirmed that the wall could be seen in the background.

74.  The aerial photos closest to the time were those taken in February 1963 and December 1964.  There is no dispute between the experts that a wall can be seen at the northwest boundary of the Land.  An earlier aerial photo taken in 1956 was again of such a low resolution that nothing could be derived out of it.

75.  Mr Ko also points to the old survey sheets included in the experts’ joint statement to say that the wall must have existed as early as 1960, because there was a dotted curved line on those sheets at where the wall should stand.  In the survey sheets drawn in 1968, there were crosses put on the dotted line.

76.  Mr Leung gave evidence to say that the dotted line must have been drawn to correspond to an item on ground, such as a track, a wall, frames or the side of a house.  Whilst Mr Au accepted a wall may be a possibility, there was no universal definition as to what a dotted line might represent, and certainly no definition could be found for the survey sheets in question.  He claimed to have never seen such a representation on a survey sheet before.

77.  Whilst the aerial photos are consistent with the family photos in showing the wall existed by the early 1960s, it is again a question whether the evidence of the plaintiffs’ witnesses is believable.

78.  On this, I am prepared to accept Lam Chau Shing’s evidence that the wall was indeed built in around 1950, when he was 11-12 years old.  Even though he agreed with Ms Wu that this was long time ago, and his memory must have faded somewhat, the construction of the wall was not a one-off event.  The time taken for the construction, and the fact that Lam Chau Shing was by then already 11 years old, lead me to find that he must still have a fairly good memory about it.  The survey sheets also do not provide any contrary evidence.

79.  The plaintiffs accept, however, the wall did not completely encircle the Land, at least on those sides not facing Lot No 313.  One thus still needs to assess whether Lam Kwong Tat and the Tso had possession of the Land to the exclusion of the whole world by building the wall.

80.  Mr Ko argues that there was no need to completely enclose the Land, because the adjoining plots belonged to the Tso.  With respect, I do not think his argument is supported by the evidence.

81.  First, the evidence does not show that the Land (or Lot No 313, for that matter) was completely surrounded by the Tso’s land.  For example, no evidence has ever been put forward to show the details of land ownership for the plots to the north of the Land[7]. As such, I do not think it can simply be concluded that the Land must only be accessible from the Tso’s land.  Insofar as the 1^st plaintiff and Lam Chau Shing asserted that was the case, I reject their evidence.

82.  Indeed, Lam Chau Shing’s evidence did not actually support the plaintiffs’ case.  Under cross examination, he readily agreed that, despite the wall being built by 1950, villagers could still walk onto the Land.  When re-examined by Mr Ko, he admitted that there were a lot of small paths to allow people to walk onto the Land from the east side, because there were a lot of land or houses left vacant.  As referred to earlier, villagers of Shek Po Tsuen were not all members of the Tso.  I find this to mean that people other than members of the Tso were able to walk freely onto the Land as they were not physically obstructed, nor were they strictly prohibited from doing so.  This is an admission, in my view, which due weight ought to be given.

83.  In my judgment, the plaintiffs’ evidence came nowhere near to prove factual possession and the requisite animus possidendiwith respect to the wall.

84.  Ms Wu also seeks to challenge the plaintiffs’ case by relying on various aerial photos, which show that the wall was partially demolished in around 1973 and in 1986, and was rebuilt afterwards.  She also challenges that the 1^st plaintiff did not know what transpired between 1973 and 1997, when he was away making a living in Costa Rica.

85.  In brief, I do not find these submissions fatal for the plaintiffs’ case.  As to the partial demolition of the wall, the aerial photos only show a snapshot of what happened on the ground.  The defendant has no evidence to show that the Tso’s possession of the Land must have been interrupted as a result.  In any event, as Mr Ko submits, there is no evidence to show that the defendant regained possession of the Land during those times.  Therefore, the Tso (and thus the plaintiffs) must be taken to be in continuous possession.  The same can be said about the absence of the 1^st plaintiff in Hong Kong.  Even though he might not be able to give evidence as to what transpired during the time when he was away, there is no evidence to suggest that the Tso was turned out of the Land, or the defendant regained possession. 

E3. The public lavatory

86.  It is the plaintiffs’ case that a lavatory was built by Lam Kwong Tat on the southwestern corner of the Land, at the same time when the wall was built, i.e. in around 1950.

87.  The 1^st plaintiff gave evidence to say that his grandfather told him repeatedly that the lavatory was built 4-5 years after the end of the World War II.  He heard his grandfather saying so up to 1973 when he left for Costa Rica.

88.  Lam Chau Shing also gave evidence saying that the lavatory was built at around the same time as the wall was built. 

89.  The experts agreed that the lavatory could first be seen from the aerial photo taken in 1963.  Otherwise, there appears to me to be no contemporaneous documents that could independently verify the plaintiffs’ evidence.  Hence, the issue is again whether the plaintiffs’ evidence as to the year in which the lavatory was built shall be believed.

90.  In my judgment, the plaintiffs’ witnesses were not credible on this point, and I reject their evidence.  It is useful for me to refer to several letters from which I derive my conclusion, apart from relying on my general impression of their evidence.

91.  In the 1^st plaintiff’s letter to the Squatter Control unit dated 18 February 2004, he claimed that there was an ancestral home with 70-year history on the Land.  The ancestral home was subsequently re-developed into a 2-storey building.  The reference to the ancestral home could only mean the lavatory, as the 2-storey building now stands at where the lavatory was.  But this would mean the lavatory was allegedly built in the 1930s.  Under cross examination, the 1^st plaintiff admitted what was said in the letter was a mistake, and he meant his grandfather used the land for 70 years.  I do not find his explanation satisfactory, as plainly that was not what he wrote in the letter itself.

92.  Lam Chun Shue (林春樹), the village representative of Shek Po Tsuen, wrote a letter to the Squatter Control unit on 8 July 2004.  He said that there was a permanent building on Lot No 313 belonging to the Tso, which was 60 years old. This means that the permanent building was built in the 1940s.  This is contrary to the plaintiffs’ current case, as any structure they referred to in the present case were only built in 1950 the earliest.  The 1^st plaintiff accepted that Lam Chun Shue would not know much about the situation before 1954, because he was only 3 years older than the 1^st plaintiff. In my judgment, if Lam Kwong Tat did repeatedly mention 4-5 years after the World War II to be the year in which he built the lavatory, it would have been widely known and there would be unlikely to be different stories put forward by villagers in charge of the management of Shek Po Tsuen.

93.  The plaintiffs’ solicitors wrote, inter alia, 3 letters to the DLO/YL disputing the boundary of the old Lot No 313:-

(1) In the letter dated 14 October 2009, it was alleged that the ancestral house erected on the Land was built over 100 years ago.  This is plainly inconsistent with the plaintiffs’ case as to when the lavatory was built.

(2) In the letter dated 19 January 2010, it was alleged that the “ancestral homes or houses” were built some 60 years ago, and re-developed in 2002.  This is still inconsistent with the plaintiffs’ current case.

(3) In the letter dated 1 February 2010, it was alleged that 3 village houses were built on Lot Nos 313RP and 315 some 20-30 years prior to 1964.  They were re-developed or renovated in 2002.  The references to these houses must have been to those situated on the Land, because at that time the plaintiffs still believed that the Land was within the boundary of Lot No 313.  But again, this is different from the plaintiffs’ current case.

94.  Under cross examination, the 1^st plaintiff simply stated that he disagreed with the content of the letters by his solicitors, and said those were not his instructions.  It is inherently implausible that those letters would be written without express instructions from the 1^st plaintiff, as he was the person leading the conduct of the plaintiffs’ litigation.

95.  Further, for Lam Chau Shing, even though he should have also been an eyewitness to the building of the lavatory, it is interesting that he never said so in his witness statement, different from what he said with respect to the building of the wall.  He also did not say he witnessed the building of the lavatory in his oral evidence.  In my judgment, I do not think the same weight can be given to his evidence on this point as compared to the building of the wall.

96.  Based on the reasons I set out above, I find there is no cogent and compelling evidence to show, on a balance of probabilities, that the lavatory must have been built before November 1951. In my judgment, the plaintiffs cannot rely on the lavatory to show a continuous possession of the Land for 60 years.

97.  Given my conclusion, it is not necessary for me to analyse in depth the parties’ arguments on the subsequent use and changes in the lavatory.  I have considered the evidence and arguments as a matter of assessing the general credibility of the plaintiffs’ case.

E4. The Tam House

98.  In my judgment, the plaintiffs’ reliance on the evidence surrounding the Tam House cannot take their evidence further.  Even assuming the facts in favour of the plaintiffs, part of the Land was only leased to Madam Tam in 1960, and the Tam House was constructed at around the same time.  Hence, there was no continuous possession of the Land for 60 years.  It is also convenient at this juncture for me to say that the same reasoning shall apply to the structure that the parties referred to as the 1-storey building.  On the 1^st plaintiff’s own case, the 1-storey building was built by him in around 2001.  So it adds nothing to the plaintiffs’ case.

99.  I accept that the evidence surrounding the Tam House may be relevant to the assessment of the credibility of the plaintiffs’ witnesses, and also the impression one may obtain from the evidence as to the extent of Lam Kwong Tat (and his successors) possessed and controlled the Land.

100.  It is sufficient for me to simply say that I largely agree with Ms Wu’s submissions that the plaintiffs’ case is in a disarray.  The 1^st plaintiff had difficulty to clearly set out the location of the Tam House, and its use and redevelopment after Madam Tam’s family moved out.  His evidence does not change my view as to his general credibility.

101.  For Lam Chau Shing, he simply agreed that he did not know much about the facts surrounding the Tam House, apart from the fact that Madam Tam was the tenant.  His evidence does not assist the plaintiffs’ case.

E5. Summary

102.  In my judgment, each of the acts that the plaintiffs seek to rely on to establish their adverse possession claim does not help them to prove that they (including their predecessors) were in possession of the Land to the exclusion of the whole world, with the requisite animus possidendi, for a continuous period of at least 60 years prior to November 2011.  The plaintiffs fail in their claim.

103.  I have also considered whether the acts, considered together, provide sufficient evidence to support the plaintiffs’ claim.  However, I have similarly concluded that the acts, considered as a whole, do not provide sufficient evidence for the plaintiffs to establish their adverse possession claim against the defendant.

104.  Both counsel also make other arguments in their analysis of the evidence.  I have considered them in forming my impression about the witnesses, and also in my approach to the evidence.

F. DEFENCE ON ESTABLISHMENT OF THE HKSAR

105.  My findings above are sufficient to dispose of the plaintiffs’ claim.  But in deference to Ms Wu’s industry and submissions, I express my views on the defence on the establishment of the HKSAR.

106.  Ms Wu submits that there could never be a continuous possession of 60 years by the plaintiffs.  This is because time from when the defendant’s cause of action accrued ran afresh from 1 July 1997.

107.  This argument is not new to the courts.  Ms Wu submits that I shall follow the first instance decision in Chau Ka Chik Tso v Secretary for Justice HCA 10670/2000 (Deputy Judge L Chan; 30 December 2009) as it is the only decision that is binding on me.

108.  In Chau Ka Chik Tso, the plaintiffs relied on adverse possession as 1 of the 4 alternative bases on which they could claim title over the disputed land in the New Territories. Deputy Judge L Chan (as L Chan J then was) accepted the argument that, even though the plaintiffs in that case acquired possessory title over the disputed land before 30 June 1997 by way of adverse possession, such title could only be asserted against the British Hong Kong government, but not against the HKSAR government.  The British Hong Kong government was only a lessee of all the New Territories land.  Even if the plaintiffs’ dispossession extinguished this interest, it did not extinguish the interest of the landlord (ie the Chinese government).  When the reversionary interest in the New Territories land fell into possession of the Chinese government on 1 July 1997, the limitation period started to count afresh.

109.  In that case, the plaintiffs’ counter-arguments were rejected in the following manner:-

(1) Properly construed, the law enacted by the British Hong Kong government never intended to vest the New Territories land in the British Crown in perpetuity.  The interest of the British Hong Kong government, and thus the British Crown, was always a leasehold interest, lapsing by 30 June 1997.  He distinguished this from the tenure of the British Crown over land in the rest of Hong Kong.

(2) The Joint Declaration and the Basic Law did not contain any provision which would protect the plaintiff’s possessory title.

(3) The interest of the British Hong Kong government over the New Territories land did not devolve upon the HKSAR government because such interest lapsed by 30 June 1997.  The HKSAR government was not bound by any interest asserted against the British Hong Kong government.

110.  Ms Wu submits that when Chau Ka Chik Tso went on appeal (reported at [2011] 2 HKLRD 387), the plaintiffs abandoned their arguments on adverse possession (at 390-391).  When it went further to the Court of Final Appeal (reported at (2011) 14 HKCFAR 889), arguments on adverse possession were not revived.  Therefore, she reasons, Deputy Judge L Chan’s decision remains to be the applicable law.

111.  The first instance decision in Chau Ka Chik Tso was discussed in 2 first instance cases: Lee Bing Cheung; and Li Kwok Ching v Secretary for Justice HCA 1303/2010 (G Lam J; 31 March 2015)[8].

112.  In Lee Bing Cheung, the plaintiff claimed possessory title by adverse possession for a piece of unleased government land in Shaukeiwan.  Deputy Judge Marlene Ng rejected the defendant’s argument that the resumption of sovereignty by the Chinese government constituted a break of the plaintiff’s possession of the government land.  Her Ladyship reasoned:-

(1) Under s 16(2) of the Hong Kong Reunification Ordinance (“the HKRO”), a person having a contingent right (eg an inchoate right of an adverse possessor who has been in possession of government land for less than 60 years), who could bring proceedings against the British Crown, shall continue to enjoy such right after 1 July 1997, by bringing such proceedings against the HKSAR government instead.

(2) The Chinese government did not have any reversionary interest in any land in Hong Kong before 1 July 1997, and only assumed ownership of all land in the HKSAR since 1 July 1997.  Therefore, it could not be argued that an adverse possessor’s claim lapsed by 30 June 1997 because the possession fell into the reversioner.  This was confirmed by s 30(1) of the HKRO, that the property previously vested in the British Crown or the British Hong Kong government vested in or transferred to the HKSAR government by 1 July 1997.

113.  In Li Kwok Ching, the plaintiff claimed that, by way of encroachment, he was in possession of a piece of government land in the New Territories continuously for more than 60 years before the government disputed his possession in 2009.  The defendant argued that there was a break in the continuous possession on 1 July 1997 as a result of the change of sovereignty.

114.  G Lam J rejected the defendant’s argument.  His Lordship held that, under s 7(1) of the LO, time did not start to run afresh on 1 July 1997.  He also referred to Lee Bing Cheung, effectively agreeing with the reasoning therein.

115.  Ms Wu submits that I should not follow Lee Bing Cheung and Li Kwok Ching, because (i) Lee Bing Cheung concerned land on the Hong Kong Island, which is factually distinguishable from the present case; and (ii) what G Lam J said about the 1997 argument was only obiter, since he found against the plaintiff on the issue of factual possession of the government land.

116.  I am unable to accept Ms Wu’s submissions. 

117.  First, in Lee Bing Cheung, the judgment clearly did not restrict itself to land on the Hong Kong Island. The reasoning must have been intended to be applicable to land in the whole of Hong Kong. 

118.  Secondly, I do not agree with Ms Wu that I must follow Chau Ka Chik Tso because it is binding on me.  The plaintiff in Chau Ka Chik Tso adversely possessed the government land for more than 60 years before 1997.  Thus, that judgment can be distinguished on this narrow factual basis.  More importantly, I am inclined to think that Deputy Judge L Chan arrived at his conclusion in that case per incuriam. It appears that the learned judge was not specifically assisted in deciding the nature of the ownership of the New Territories land by British Hong Kong government, acquired through the Peking Convention, an international treaty.  As I will refer to in the next paragraph, I find this point particularly important in assessing the defendant’s argument.  Further, the learned judge does not appear to have been referred to the true effect of s 16(2) of the HKRO.  I do not accept that he would have come to the same conclusion if he was asked to properly consider the effect of s 30(1) of the HKRO together with s 16(2).

119.  Hence, I consider myself free to authorities to evaluate the defendant’s submissions that the time of any possession must be started afresh from the establishment of the HKSAR.  I have no hesitation in rejecting such argument.  I find G Lam J’s judgment at §75 particularly insightful and persuasive, and I can do no better than recapping it in answer to Ms Wu’s submissions:-

“ ... The fundamental problem with it, in my view, is the inherent attempt to apply a rule of common law found in the land tenure system in Hong Kong (and in English land law) to the position of the British Hong Kong Government under the Peking Convention and the position of the HKSAR Government after 1997. The common law did not apply to the New Territories prior to the Peking Convention. The British Crown did not take possession of the New Territories from the Chinese state pursuant to a lease under the common law land tenure system as applied to the New Territories. The transfer of the New Territories was a cession, not a demise. The British Crown took the New Territories, for 99 years, under the Peking Convention, and then imposed the common law land tenure system on the New Territories (see the New Territories Order in Council 1898) and, within that system, declared all land in the New Territories to be the property of the Crown (see s.17 of the New Territories Land Court Ordinance 1900, s.14 of the New Territories Regulation Ordinance 1910 and now s.8 of the New Territories Ordinance (Cap.97)). Whatever its effects might have been, the Peking Convention operated on an international level and did not create any leasehold estate in favour of the British Crown or any reversionary estate in favour of the Chinese state that is justiciable in domestic courts. It is well established that the Peking Convention did not give rise to rights enforceable in the municipal courts of Hong Kong: Winfat Enterprises (HK) Ltd v Attorney General of Hong Kong [1985] 1 AC 733, 746.”

120.  In short, I reject this part of the defence.

G.MESNE PROFITS ON THE PLAINTIFFS’ TRESPASS

121.  Given my dismissal of their claim, the plaintiffs have been in trespass of the Land.  The defendant is entitled to obtain mesne profits for the illegal occupation by the plaintiffs.

122.  The parties appointed Ms Sat Wei Ling as the single joint expert to give a valuation of such mesne profits.  Ms Sat prepared an expert report dated 28 December 2015, and it has been put before me without calling Ms Sat to give evidence.

123.  Ms Sat opined that it would be suitable to adopt the rates charged by the government in granting short term tenancies for government land.  Ms Wu submits that, on Ms Sat’s calculation, the mesne profits come to $389,200.00 from 16 October 2006 to 15 October 2016. 16 October 2006 was chosen to correspond to 6 years prior to the Defence and Counterclaim filed on 15 October 2012.

124.  I accept Ms Sat’s opinion in the method of calculating the mesne profits, and also the rates she proposed.  I am hesitant to simply award mesne profits at $389,200.00. The plaintiffs may give up possession prior to 16 October 2016, or the parties may choose to ventilate their arguments elsewhere such that the plaintiffs may remain in possession beyond 16 October 2016.  It is better for me to award mesne profits at $377,487.57 up to 16 July 2016, and thereafter at the rate of $3,904.17 per month up to the date the defendant recovers possession of the Land from the plaintiff.

H. CONCLUSION AND ORDERS

125.  I dismiss the plaintiffs’ claim.

126.  On the defendant’s counterclaim, I grant the following orders:-

(1) The 1^st and 2^nd plaintiffs do deliver up vacant possession of the Land;

(2) The 1^st and 2^nd plaintiffs do pay mesne profits at $377,487.57 up to 16 July 2016, and thereafter at the rate of $3,904.17 per month up to the date of the delivery up of vacant possession of the Land.

127.  I further make an order nisi that the 1^st and 2^nd plaintiffs do pay the defendant’s costs of the present case (including all costs reserved, if any), to be taxed if not agreed.  There shall be certificate for counsel.  The order nisi is to be made absolute unless an application to vary is issued within 14 days of this judgment.

128.  I thank counsel for their valuable assistance.