TSANG TSANG KEUNG v. FUNG WAI MAN AND ANOTHER

HCA 11328/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 11328 OF 1996

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J U D G M E N T

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1. By this action the plaintiff seeks to recover from the defendant possession of land he claims falls within the boundaries of land he owns. The defendant says that it is she who is the rightful owner and thus entitled to exclusive possession. If, which she denies, the land falls within the boundaries of the plaintiff's title, his rights to it have been extinguished and she has acquired exclusive possession of it.

The background

2. In 1971 the plaintiff's father Tsang Suk Chi (Mr Tsang) purchased various adjoining parcels of land in a village in the Yuen Long District called Fung Kut Heung. He had as a tenant prior to that date and thereafter as owner farmed poultry on the land. One of the parcels is legally described as the remaining portion of Lot 1173 in Demarcation District No.107. I shall refer to it hereon as Lot 1173RP. At much the same time one Chan Ho (Mr Chan) occupied and came to purchase a parcel of land adjoining and roughly north of Lot 1173RP. Its legal description is section B of subsection 1 of section C of Lot 1875 in Demarcation District 107. I shall refer to it hereon as Lot 1875C1B. Mr Chan reared pigs. Mr Tsang's farm comprised the house he and his family lived in and various poultry houses and sundry other outbuildings. Mr Chan also lived on his farm, which included sties and other outbuildings.

3. I pause here to state that it is a triangular shaped piece of land in Lot 1173RP south of its north western and north eastern boundaries which abuts Lot 1875C1B that is the disputed territory. From now on I shall refer to it as the disputed land. The defendant who is the successor in title to Lot 1875C1B does not admit to the disputed land being inside the title boundaries of Lot 1173RP. But if it is, in whole or part, the various parties have so conducted themselves that the disputed land is within what she describes as her occupational boundary and hers to the exclusion of all others including the plaintiff.

4. The natural configuration of the land is that Lot 1875C1B and that part of Lot 1173RP which is the disputed land are together on one level, some three to four feet about the remainder of Lot 1173RP. The two levels are connected by a short slope which runs along the southern boundary of the disputed land. At the foot of the slope and running parallel to and south of the southern boundary of the disputed land is one of Mr Tsang's poultry houses.

5. I revert back to the history.

6. Mr Tsang shared his farm with his second wife Au Lan Ho. In 1976 they were joined by his son by his first marriage, the plaintiff, who migrated from China to help his father run the farm. He has remained there ever since.

7. At some stage, although when is in dispute, Mr Chan obtained a permit from the Building Department and had built a pigsty which incorporated basic workers' accommodation to the north of and parallel to the southern boundary of the disputed land, thus on the higher level. I shall from hereon refer to this building, if the context allows, as the pigsty, even though there were and are similar buildings constructed for such purpose on Mr Chan's farm, and even though it now no longer serves that purpose. The bulk of the pigsty is on the disputed land. It stands to this day. I have seen photographs. The living quarters are at the eastern end and are separated from the sty itself by a covered walk way. It is, on any account, a large building of substantial length, width and height, and has heavy timbers in the framing. After it was built it came to be used by Mr Chan for its intended purpose, namely, to house pigs with the quarters accommodating workmen.

8. Whether Mr Tsang reacted and if so how to the pigsty's existence on the disputed land is a matter of challenged evidence as I shall come to.

9. In 1978 the Tsang household was further expanded by the arrival from China of Mr Tsang's cousin called Tsang Ching Wun. He stayed for about two years, helping out on the farm for wages, before leaving to get married. By the time he arrived the pigsty including adjacent accommodation was built.

10. In 1979 the respective neighbours agreed to erect a post and wire fence between the two farms, along the southern boundary of the disputed land and thus in the corridor between the pigsty and Mr Tsang's poultry house.

11. In 1980 Mr Tsang died. He left a will appointing his widow Madam Au and son the plaintiff to be his executors, bequeathing all his estate to them including the farm as tenants in common in equal shares.

12. The original will was lost and this accounted for a delay in probate which did not come to be granted until 1989. Title did not vest in the beneficiaries until 1994 at which time the plaintiff acquired his stepmother's interest and became, as he remains now, the sole owner of the various parcels of land including Lot 1173RP.

13. Meanwhile following Mr Tsang's death the plaintiff continued to farm poultry. It seems for the time being Mr Chan did likewise with his pigs.

14. It is the plaintiff's account that towards the end of the 1980's both he and Mr Chan were invited by the Environment Protection Department to stop farming their respective livestock in return for compensation as part of an overall environmental plan for the area. The plaintiff says that he agreed and so did Mr Chan. He stopped farming and so, apparently, did Mr Chan. He says he was paid his compensation in 1992. He guesses Mr Chan would have been paid at the same time.

15. Land Registry records reveal that in June 1992 Mr Chan sold his land, that is Lot 1875C1B, by now clear of pigs, to a couple surnamed Lee. The sale was completed in September 1992. The pigsty was still in existence, by then used for storage. The fence separating it from the plaintiff's land was also still standing.

16. In July 1993 the defendant bought Lot 1875C1B from the Lees. The purchase was completed in September 1993. It is her account that she was attracted to the property because the land and various outbuildings, including the now defunct pigsty, would be suitable for her hobby which is growing plants and landscaping. The property was presented to her as being bounded by various walls and fences and a nullah and these included the fence running below the southern side of the pigsty. So she was told and had no reason to doubt that she was buying and would become the owner of the disputed land and all that was on it.

17. But in April or May 1996, some three years after the purchase, she was in for a rude shock. Whilst she was working on the property the plaintiff, whom she had not previously met though recognised as her neighbour to the south, introduced himself and told her he was the rightful owner of the disputed land upon which the pigsty was standing. He said he was intending to recover possession. The defendant having no previous notice of any such claim resisted. The plaintiff engaged surveyors to survey the boundaries of Lot 1173RP including the disputed land and cut down the fence along its southern boundary. Both engaged solicitors and there was an exchange of correspondence. The parties were unable to agree or compromise their respective positions and this has resulted in the proceedings now before me.

The pleadings

18. The plaintiff sued the defendant as first defendant and, curiously, "the other unknown occupiers of Lot 1173RP" as second defendant.

19. By virtue of being the registered owner thereof he claims the defendants are in wrongful possession of the disputed land and seeks an order of possession and a mandatory injunction of demolition of the pigsty on it or, alternatively, the right to demolish it and the expenses for that. Not surprisingly, the second defendants, so-called, have mounted no defence and he has judgment against them. But the defendant named as the first defendant opposes his claim. She puts the plaintiff to proof that the disputed land falls within his title. If it does, she counterclaims for a possessory title in the disputed land by virtue of the doctrine of adverse possession or, in the alternative, proprietary estoppel.

20. The plaintiff in his reply says that in or about 1976 his father, Mr Tsang, gave Mr Chan licence to rear pigs on the disputed land, which licence would terminate when he stopped farming pigs. He denies the counterclaim, putting the defendant to proof.

The issues

21. Can the plaintiff prove he is the registered owner of the disputed land?

22. If he can, is the defendant able to prove she and her predecessors in title have had adverse possession continuously for at least 20 years entitling her to a possessory title?

23. Alternatively, can she prove that the parties and their respective predecessors in title have so conducted themselves that she is entitled to a possessory title under the doctrine of proprietary estoppel?

24. The answers to these questions largely depends on my findings of fact after considering the disputed evidence I shall now turn to.

The evidence

25. For the plaintiff's case the plaintiff himself gave evidence first.

26. He said that when he arrived in Hong Kong the pigsty was not yet built and there was nothing on the land. It was not until 1977 that he and his father came to observe that construction of a building, which was to become the pigsty, had begun. His father told him that the land was his and that there had been no prior discussion or permission given Mr Chan, whom he regarded as trespassing.

27. The upshot was that, on the plaintiff's account, there was a confrontation between neighbours. But just when that was is hard to establish from the plaintiff's evidence. In his witness statement, adopted as evidence, he said it was in the early stages of construction in 1997 when his father ordered Mr Chan to stop building and to leave. Mr Chan responded that he had already bought the materials and the sty was necessary for him to generate enough income to support his family. His father did not press the matter because Mr Chan promised to restore Mr Tsang's land to him once he stopped farming.

28. However, from the witness box, he said the confrontation coincided with the decision to build a fence to protect their chickens from Mr Chan's dogs, in 1979, some two years later. His father was at first reluctant to build it because it meant separating two pieces of land that were rightfully his. Only when Mr Chan promised to restore the disputed land to him on cessation of pig farming did he agree. The fence was erected the very next day. It was to stand until he, the plaintiff, pulled it down in 1996. He said it was purely for the purpose of containing Mr Chan's dogs and the fence line was along a convenient corridor between the pigsty to the north and poultry house to the south. It was not then and never was to become a definitive boundary between the two farms.

29. Following his father's death in 1980 he continued to farm as before. Mr Chan did likewise. He honoured his father's agreement to allow Mr Chan uninterrupted use of the disputed land as long as he remained a pig farmer.

30. Then it was that in response to the Environment Protection Department, in 1991, he stopped farming so as to qualify for compensation. When Mr Chan did likewise he approached him and asked him to vacate the disputed land and return it to the Tsangs. But he flatly refused. He confirmed that he too had given up farming, but would honour his promise to restore the disputed land only after he was paid his compensation. The plaintiff said he did not agree but took no steps to avoid a fight and because he believed the delay would be not long. The following year, in 1992, he got paid. Assuming Mr Chan would also have been paid by then he went looking for him. But he had gone. Neighbours told him that Mr Chan had sold up. Faced with the alternative of himself simply resuming possession, the plaintiff said he thought about that but decided not to because the pigsty had tools and other miscellaneous items stored there, and he did not want to be responsible for anything lost or damaged. And so he took no steps.

31. In 1993 and 1994 nobody lived next door; the place was abandoned.

32. Then in 1996 he came to see that someone was carrying out some sort of alteration work on the former pigsty. That caused him to approach, for the first time, the then owner of Mr Chan's property, the defendant, and make his demands which came to result in these proceedings. It seems from his witness statement that what triggered his decision to call for a return of the land was that he learned the defendant was going to transfer the pigsty into a bone-setter's shop. I quote:-

"I was shocked at this remark and argued with her ... I then told Madam Fung in the strongest of terms that her intended use (as a bone-setter's shop) is not the proper use of the land and that it would subject her to prosecution."

33. In cross examination the defendant's case was put to him. It was suggested that when he came to his father's farm in 1976 the pigsty was already up and operational; that the fence defined the natural boundary between the two farms along the three or four foot slope; that there was no agreement and never had been one whereby Mr Chan was to return the land north of the fence to Mr Tsang, whether at the time he stopped farming pigs or at any other time. To all these he disagreed. His response was that he wants his land back. He is the registered proprietor and entitled to it.

34. The next witness was Tsang Ching Wun, Mr Tsang's cousin, the plaintiff's uncle.

35. He said that by the time he arrived in 1978 the pigsty was all but complete. It was at his suggestion that in 1979 the fence came to be built, to keep out the marauding dogs of Mr Chan. He said it was while they were building the fence that Mr Chan, in his presence, promised Mr Tsang that he would have his land back when he stopped rearing pigs.

36. The next and final witness for the plaintiff was Tse Hon Kwong, the surveyor employed by the plaintiff to define Lot 1173RP and thereby establish the extent and dimensions of the disputed land.

37. He said he made his calculations on the Government Survey lot index plan of the lot in question and a survey he carried out on the land itself. The final result was as depicted on a plan exhibited. It shows a triangle whose base is at the 1979 fence, the majority of which is beneath the now defunct pigsty. The northern apex of the triangle is positioned beneath another, smaller building, so that building also is said to encroach.

38. In cross examination it was suggested to Mr Tse that because the survey plan upon which he relied in defining Lot 1173RP contained a statement that it should be regarded as subject to survey, his own findings must be regarded as inconclusive, or unreliable. He disagreed.

39. That being the evidence adduced in support of the plaintiff's case, I now come to that of the defence.

40. The defendant was called second but I shall recount her evidence first.

41. When she came to inspect the property in June or July 1993 it was in the company of the real estate agent who introduced her to it. No one was at home; the house was locked. But she could see appliances, furniture and personal belongings inside and a dog was running around; all this indicated human habitation.

42. Straight after completion, in September 1993, she and her husband moved in and they have lived there continuously ever since. During that time she has hired labour to repair the various buildings including the pigsty, and has spent up to $40,000. The pigsty is easily the biggest of the buildings.

43. Prior to his approaching her in April or May 1996 she had not met the plaintiff, though she had seen him from time to time and knew his land bordered hers.

44. In July that year the plaintiff cut the fence without asking or warning. Then in August she received a solicitor's letter stating she was a trespasser, and requiring her to deliver possession to the plaintiff. As a result of that she went looking for Mr Chan and found him eventually, in hospital. Although his health was poor he seemed clear minded and alert. In response to her question about the pigsty he told her that he had had it built, on a site as directed by a local District Officer. He told her that neither his neighbour Tsang or anyone else had disputed his right to do so. He said they shared the cost of the fence that subdivided their lands. He concluded that there was no reason that the plaintiff should ask for the land.

45. She came to learn Mr Chan died in February 1997.

46. The only remaining witness for the defence was a Mr Kwong Kam Wah, who is an assistant manager with the Housing Department, attached to Squatter Control for Yuen Long North. He said his department took over that responsibility from NTA in 1981. Asked to explain the origin and significance of various letters and numbers painted on the pigsty he said they probably dated back to a survey conducted by NTA in 1976. But he could not from the numbers or from records say when it was built.

47. Before leaving the defence case I want to make reference to some of the documents in the agreed bundle.

48. The defence produced two survey sheets. The first in its legend states that it derived from aerial photographs taken in 1963 and it came with a photograph. The plan and photograph reveal what was described as a temporary structure situated on the disputed land now occupied by the eastern end of the pigsty. The second is the result of a survey conducted in 1980 and revised in 1986. That, and photography supporting it, reveal all buildings now on site fully constructed.

49. Finally there is a document titled Modification of Tenancy. That recorded that Mr Chan, as registered owner of Lot 1875C1B, was permitted to maintain a residence and various buildings as described and that his Crown lease was modified accordingly. It was signed by the District Commissioner New Territories and dated 12 May 1971.

50. That was the evidence.

51. Before coming to my findings of fact, I shall first deal with what the parties have to establish to make their respective cases.

The law

52. I have already stated that it is for the plaintiff to prove that the disputed land is within the boundaries of Lot 1173RP, and that if he can then the burden falls on the defendant to establish she has upset his ownership by invoking the doctrine of adverse possession, or in the alternative, proprietary estoppel.

53. The Court of Final Appeal was required to deal with the principle of adverse possession in Wong Tak Yue v. Kung Kwok Wai David & Anor. [1998] 1 HKC 1.

54. Li CJ said the origins of it are in statute; in Hong Kong the Limitation Ordinance. He went on, at p.11:-

"The Limitation Ordinance

The Limitation Ordinance (Cap 347) has followed the limitation legislation in England. The provisions which are material to this appeal are as follows:

Section 7(2)

No action shall be brought by any other person to recover any land after the expiration of 20 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.

As has been pointed out this has now been changed to 12 years but this change does not affect this appeal.

Section 8(1)

Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

Section 13(1)

No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.

Section 17

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.

Section 10 relates to land held on trust and is not relevant to this appeal.

Requisite intention to possess

The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess.

.......

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 at 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.

The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case."

55. Later on in the judgment, Litton PJ echoed the same requirements and, dealing with the facts of that case, said at p.14:-

"The law is clear. The owner of the land with the paper title is deemed in possession of the land. If the law is to attribute possession to a person who can establish no paper title to possession, and claims to be a mere trespasser, the burden is upon him to establish his intention to exclude the whole world: including the owner of the land. Only in this way can he establish 'adverse possession' in terms of s 13(1) of the Limitation Ordinance (Cap 347).

Here, the appellant has come no where near establishing adverse possession. He unequivocally declared that at all times he was ready willing and able to pay rent to the owners, and did not do so only because no one came along on behalf of the landlords to collect rent. .... the fact remains that he had no intention to exclude the owners."

56. It follows that possession cannot be adverse if the claimant has the owner's permission, leave or licence to occupy.

57. Section 13(2) of the Limitation Ordinance states:-

"13(2) Where a right of action to recover land has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken in adverse possession."

58. By the ordinary meaning of these words the adverse possession has to be continuous. But it does not have to be the claimant's throughout, who may acquire that from his or her predecessor.

59. In the case Ng Lai Sum v. Lam Yip Shing & Anor., HCA 2963 of 1998, Cheung J said at p.8:-

"Successive Squatters

However, the fact that the Plaintiff was not in possession from 1977 to 1995 is not fatal to her claim. Because the law is clear that the second squatter can add the period of possession of the first squatter to her own period of possession in order to complete the period of possession: Megarry & Wade at page 1036.

.....

It is clearly stated by Kay LJ in Willis v. Earl Howe [1893] 2 Ch 545 at 553 "a continuous adverse possession for the statutory period, though by a succession of persons not claiming under one another, does, in my opinion, bar the true owner."

60. Needless to say if there is an interruption adverse possession ceases at the point possession is first given up.

61. I shall now deal with the disputed evidence and make findings of fact to establish whether the parties have respectively made out their cases of ownership and adverse possession in the disputed land before, if necessary, exploring the doctrine of proprietary estoppel.

Findings of fact

62. Is the disputed land within the boundaries of Lot 1173RP?

63. I find on all the evidence, and in particular that of Mr Tse, that it is.

64. Though Mr Szeto for the defendant skilfully challenged his methods and conclusions in cross examination I am satisfied the resultant survey can be relied on and properly reflects the boundaries and dimensions of Lot 1173RP and of the disputed land. Thus the pigsty is but for a small part of it at the western end situated within the disputed land. And the same goes, in part, for the chicken shed so-called to the north of the pigsty.

65. Has the defendant established continuous adverse possession since at least April 1976?

66. Crucial to her cause is whether or not there was an agreement between Messrs Tsang and Chan, or licence for the latter to occupy. If the plaintiff is to be believed there was one, verbally made, which did not expire until 1991, a scant 5 years before 1996. But I have to say I have difficulty in believing what the plaintiff had to say on this topic and the same goes for his uncle.

67. First I pay heed to a point well made by Mr Szeto that in the letter of demand and subsequent statement of claim there is no reference to any agreement or licence and its expiry. The plaintiff could not say why that was so beyond that he had told his solicitors. If that were so I find it hard to believe why that important fact was not raised and pleaded at the outset, rather than in the reply. Secondly his evidence is contradictory as to when the agreement was made. Was it in 1977, during construction of the pigsty, or 1979, when it was complete? Or was it, as pleaded, in 1976? Human nature being what it is, I should have thought that the confrontation, if there was one, would have been at the time the first sod was turned prior to construction of the building, and that calls to question what both men told me under oath from the witness box.

68. I also have trouble in accepting that Mr Chan would have committed himself to a significant outlay in constructing a pigsty if there was a risk his neighbour, aware by proximity of what he was up to, might kick up a fuss. On the plaintiff's account, or at least his version from the witness box, the structure was as good as complete before his father made his challenge. And what if, as he would have been entitled, he did not grant a licence? Mr Chan, then and there, could have been compelled to pull the whole thing down - that would have been a massive waste of time, effort and money.

69. And if there had been an agreement, would the parties not have covered their positions by putting pen to paper, and scratched out the terms? Promises are all very well; but they can be dishonoured or forgotten especially if the parties fall out. Given the size of his investment surely Mr Chan would have asked for something more concrete.

70. Further, why did it take the plaintiff four years from the expiry of the agreement or licence to demand his land back? And why was he so concerned about the defendant's proposed use for the pigsty being contrary to the law if at his behest she was going to have to pull it down?

71. Finally there is what Mr Chan told the defendant from his hospital bed before he died. Of course that is hearsay and subject to the usual limitations because of that. But about it I say:- I have no reason to doubt that the defendant, herself under oath, recounted accurately what Mr Chan said to her. If there was an agreement, or a licence, Mr Chan would have remembered it. He might have lied about that, but why would he? He had nothing either to gain or lose, and the defendant was a stranger. Taken alone I might be hard pressed to rely on this evidence. But it does support the contention that there was, after all, no agreement or licence; I so find.

72. When did Mr Chan begin to occupy the disputed land? Was it when he built the pigsty, and, if so, when did he build it? Or was it earlier?

73. The plaintiff said construction began in 1977. But I have already rejected his evidence that there was an agreement or licence and I now go further to say that I find that everything else he has said that is contentious is suspect. Mr Kwong of the Housing Department could not assist on the date of construction. But he did give an indication as to when the NTA marked the pigsty; after the survey of 1976. The survey sheets and photographs tantalisingly reveal that the pigsty was there but not when it was built. In the end I have a strong suspicion that it was already built by April 1976. But there is not enough to prove that conclusively.

74. However I do not find this defeats the defendant's cause.

75. I have already said that the disputed land and Lot 1875C1B were naturally separated from the remainder of Lot 1173RP by the slope of three to four feet and the consequent variation in levels. Of course there is nothing to stop a farmer from farming his land configured in this way. But the evidence points to Mr Tsang not having farmed on the disputed land at all. Certainly he had no improvements constructed on it; his poultry house at the foot of the slope was south of its southern border. And the disputed land, as Mr Tse's survey has now established, extends northwards to the extent that not only the pigsty but also the poultry shed north of it encroaches. Mr Chan was farming the land at least by 1971. Already approved to be maintained on it were his house and sundry other buildings. I conclude that from that time Mr Chan made use of the disputed land by passing and repassing, coming and going to the exclusion of Mr Tsang and all others. Given the configuration of the land and the extent to which the disputed land spears into Lot 1875C1B it would offend common sense to find otherwise. The building of the fence, in 1979 or whenever, marked the southern boundary of the land which, though not and never owned by him, Mr Chan had used as his, probably as far back as 1971.

76. On these findings of fact I am satisfied Mr Chan had adverse possession of the disputed land from prior to April 1976 until he completed his sale in September 1992.

77. What about from that date to April 1996?

78. The Land Registry records reveal that a year after they bought, his purchasers sold to the defendant, that is in September 1993. She says she and her husband have occupied the property ever since. I have no reason to doubt the truth of that.

79. The plaintiff said in evidence that Mr Chan's farm was abandoned in 1993 and 1994; that it was not until 1996 that he came to see people there which was what triggered his confrontation with the defendant. I have already put to the sword much of what the plaintiff has told me. It cannot be right that there was no one there at least from September 1993. It follows that the remaining period not accounted for is the year prior when the defendant's predecessors owned Lot 1875C1B. When she inspected in June or July 1993 the defendant found signs the place was lived in, by her vendors. And the plaintiff said one of the reasons he decided not take steps to reclaim his land unilaterally was because he did not want to disturb personal property stored in the pigsty.

80. I am satisfied that there was in fact no abandonment at all.

81. Possession in the disputed land, and adverse possession at that, followed the passing of title in Lot 1875C1B without interruption.

Conclusion

82. On these findings of fact the plaintiff has proved he has title to the disputed land and the defendant has proved she has adverse possession of it which dates back not less than 20 years before April 1996. Her claim succeeds. Thus there is no need for me to deal with the doctrine of proprietary estoppel.

83. Judgment follows.

Judgment

84. There shall be a declaration that the 1st defendant has a possessory title in that part of Lot 1173RP coloured pink on the plan exhibited to the statement of claim;

the 1st defendant shall have damages to be assessed;

the 1st defendant shall have costs, taxed if not agreed, nisi at first instance;

liberty to apply.

85. The plaintiff's claim is dismissed.