GREAT CITY ENTERPRISES LTD AND ANOTHER v. WONG MAY KUEN AND ANOTHER

DCCJ 3406/2023

[2025] HKDC 1693

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3406 OF 2023

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BETWEEN

AND BETWEEN

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JUDGMENT

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1.  This trial primarily concerned a claim for adverse possession brought by the 1^st plaintiff, Great City Enterprises Limited (宏城企業有限公司)(“P1”), and the 2^nd plaintiff, Kent Hoover International Limited (建浩國際有限公司) (“P2”). P1 and P2 are collectively referred to as “Ps”. The land in question comprises two narrow rectangular strips located in DD 103, Yuen Long, New Territories, which belong to the 1^st defendant, Tang Wai Han (鄧慧嫻) (“Madam Tang”), the sole executrix of the estate of Wong May Kuen (黃美娟), deceased (“the Deceased”), and the 2^nd defendant, Leung Kee Investment Company Limited (亮記置業有限公司) (“D2”), respectively.

2.  At trial, Mr Szeto appeared for Ps, Mr Lam appeared for D1, and Mr Chau appeared for D2.

A. INTRODUCTION

3.  The following facts are not disputed by the parties. The lands mentioned below are located at DD103.

A.1 Ps’ Lots

4.  By an Assignment dated 13 November 1990, P1 purchased the land situated at Lot No 216 SC, which had a small house built on it. By another Assignment dated 24 October 1994, P1 purchased the land situated at Lot No 234 SB ss 1, also with a small house built on it.

5.  By an Assignment dated 6 May 1993, P2 purchased the land situated at Lot No 216 SH, also with a small house built on it.

6.  In the Re-Re-Amended Statement of Claim (“the SOC”), Lot No 234 SB ss1 is defined as “P1’s Lot,” and Lot No 216 SH is defined as “P2’s Lot.”[1] Both lots formed part of the area leased by P1 to Sun Tao Yuen for the Aged (新陶園護老院) (“Sun Tao Yuen”). Lot No 216 SC, which also formed part of the land leased by P1 to Sun Tao Yuen (see below), is not mentioned in the SOC. However, this omission is immaterial. For the purposes of this Judgment, I will adopt Ps’ definitions and refer to Lot No 234 SB ss1 “P1’s Lot,” and Lot No 216 SH as “P2’s Lot,” while acknowledging that Lot No 216 SC also formed part of the land leased to Sun Tao Yuen.

A.2 Ds’ Lots

7.  By an Assignment dated 18 May 1999, D2 purchased the land situated at Lot No 234 SB ss 2 RP, which had a small house built on it (“D2’s Lot”).

8.  By an Assignment dated 29 September 2008, the Deceased purchased the land situated at Lot No 234 SB ss 2 SA and Lot No 216 SM ss 1 (“the Deceased’s Lot”) with a small house built thereon. The Deceased passed away on 10 November 2018. Pursuant to High Court Probate Grant No HCAG 009145/2020, Madam Tang was appointed as the sole executrix of the Deceased’s estate. By order made by Master J Wong dated 9 August 2021, Madam Tang was granted leave to join in and carry on these proceedings on behalf of the Deceased (“D1”).

9.  The Deceased’s Lot and D2’s Lot are adjacent to each other and formed part of a larger small house development called Kam Fung Terrace (“錦豐臺”), located in Kam Tin, New Territories.

10.  As shown in the survey sheet No 6-NE-11B dated November 1999, the small houses situated in P1, P2, D1 and D2’s Lots were assigned house Nos 118, 119, 116 and 117, respectively. House No 118 is located approximately opposite and to the north of House No 117, while House No 119 is situated approximately opposite and to the north of House No 116. In a subsequent survey sheet No 6-NE-11B dated August 2002, the small houses on D1 and D2’s Lots were assigned block numbers 6 and 7, respectively (6 座 and 7 座), presumably indicating their designation within the Kam Fung Terrace development. In this Judgment, for convenience, I will refer to these houses by reference to their numbers.

11.  A Lot Index Plan showing the locations, boundaries, and delineation of the lots is attached to the SOC as Annex A and is also reproduced in this Judgment as Annex A. In Annex A, P1’s Lot, P2’s Lot, D’1 Lot, and D2’s Lot are coloured pink, green, yellow, and blue, respectively. Although Lot No 216 S.C formed part of the area leased by P1 to Sun Tao Yuen, it is not coloured in Annex A.

A.3 The land in question

12.  A Lot Index Plan showing the locations, boundaries, and delineation of the narrow strips of lands for which Ps claim adverse possession is attached to the SOC as Annex B and is reproduced in this Judgment as Annex B. At trial, these areas were referred to as “Occupied Area 1” and “Occupied Area 2” respectively (collectively, the “Occupied Areas”) by Mr Szeto and Mr Lam in their opening submissions. Mr Chau, however, objected to these terms, preferring the simpler terms “Area 1” and “Area 2”. For convenience, I will adopt the terminology used by Mr Szeto and Mr Lam, while acknowledging that these labels are used solely for reference and do not imply that Areas 1 and 2 were actually occupied by Ps. In Annex B, Occupier Area 1 and Occupied Area 2 are coloured orange and purple, respectively.

B. THE PARTIES’ RESPECTIVE CASES

B.1 P’s Case

13.  As the burden of proof lies with Ps to establish both factual possession and the intention to possess (as discussed below), I will first address Ps’ pleaded case before examining that of Ds.

14.  Ps’ pleaded case can be summarized as follows:-

(1) Between 1993 and 1994, Ps intended to combine P1’s Lot and P2’s Lot and lease the combined lot to an elderly home. In this context, P2, through its director, granted an oral licence to P1 to possess, use, enjoy, and/or rent P2’s Lot. Consequently, P1 obtained sole and exclusive possession of both P1’s Lot and P2’s Lot during that period[2].

(2) During the same period, P1, as the owner of P1’s Lot and the licensee of P2’s Lot, leased the combined lot to an elderly home operating under the name Sun Tao Yuen, based on, among other considerations, the payment of monthly rent. Since then, the lease has been continuously renewed and remains valid and in effect, allowing Sun Tao Yuen, as P1’s tenant, to maintain continuous exclusive physical possession of Ps’ Lots while conducting its elderly home business there[3].

(3) For the purposes Sun Tao Yuen’s business, it was necessary to construct boundary walls, fences, gates, and locks to delineate the boundary of Sun Tao Yuen. In doing so, Ps inadvertently enclosed part of the Deceased’s Lot (ie Occupied Area 1) and D2’s Lot (ie Occupied Area 2) within the boundaries of Sun Tao Yuen, without the consent, authority, or permission of the Deceased and D2, respectively. Thus, Ps effectively leased both Ps’ Lots and the Occupied Areas to Sun Tao Yuen as previously described[4].

(4) Furthermore, permanent fixtures, including boundary walls, flower beds, fences, gates, and locks were erected by P1 and/or Sun Tao Yuen on the Occupied Areas.[5]

(5) As a result, Sun Tao Yuen, as tenant of P1, has continuously held exclusive physical possession of the Occupied Areas while operating its elderly home business[6].

(6) Accordingly, since around 1993 to 1994, Sun Tao Yuen has been in continuous, exclusive, and uninterrupted physical possession of the Occupied Areas, to the exclusion of, inter alios, Ds, as tenant of P1[7].

B.2 D1’s case

15.  D1 admits that an elderly home called Sun Tao Yuen is located next to the Deceased’s Lot but otherwise makes no admissions regarding P’s claims pleaded in §9 of the SOC[8]. D1 denies the allegations contained in §§10, 11 & 12 of the SOC and asserts that D1, her son, and the public were “allowed” to enter the Occupied Areas without obstruction before 2015[9]. However, D1 has not specified who granted such permission. Apart from the assertion in §12 of D1’s D&C, D1’s case is one in which Ps are to strict proof of their claim for adverse possession.

B.3 D2’s pleaded case

16.  D2 makes no admission regarding Ps’ claims as pleaded in §§10, 11, 12 and 14 of the SOC[10]. In particular, the relevance of the assertions in §7 of D2’s D&C is not readily apparent. D2’s case similarly puts Ps to strict proof of their claim for adverse possession.

C. THE ISSUES

17.  The parties have not submitted an agreed list of issues in dispute. However, based on the respective cases of the parties set out in section B above, I consider the central issue in this case to be whether Ps have established factual possession of the Occupied Areas with the intention to possess.

D. ADVERSE POSSESSION: APPLICABLE LEGAL PRINCIPLES

18.  The law on adverse possession is well-established and is not seriously disputed by the parties. A person claiming adverse possession must be shown to have both possession and the requisite intention to possess. See: Wong Tak Yue v Kung Kwok Wai & another[11].

D.1 Factual possession

19.  Factual possession signifies an appropriate degree of physical control. 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 and enjoyed. In the case of open land, absolute physical control is normally impracticable, if only because it is generally impossible to secure every part of the boundary to prevent intrusion. 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. See: Powell v McFarlane[12], approved in Wong Tak Yue and IO of San Po Kong Mansion v Shine Empire Ltd[13].

20.  Enclosure is the strongest possible evidence of adverse possession, though it was not indispensable. See: Powell v McFarlane[14]. As the Court of Appeal also observed in Gotland Enterprise Ltd v Kwok Chi Yan & Ors[15], though it is not absolutely essential to have the land fenced off in order to establish adverse possession, this is a classic way of doing so.

21.  The locking or blocking of the only means of access to the disputed land is another example that shows the intention of the doer to appropriate the land. See: Powell v McFarlane[16].

22.  A squatter may acquire a possessory title to the land through the occupation of the land by his tenant. The grant of a tenancy over land is an act of ownership of the land. In other words, when a squatter grants a tenancy and receives rent, he is acting in a manner inconsistent with the title of the paper owner. This conduct places the squatter in adverse possession of the land through his tenant. Accordingly, a squatter may acquire a possessory title to land by virtue of his tenant’s occupation: Cheung Yat Fuk v Tang Tak Hong & Ors[17].

D.2 The intention to possess

23.  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. See: Powell v McFarlane[18].

24.  If the acts of physical occupation of the land were unequivocal or if the trespasser has established factual occupation and use of the land as an owner would, he needs not adduce additional evidence to establish the intention to possess. See: Gotland[19]; applied in Lau Kwai Ping Joyce, The Executrix of the Estate of Tsang Fung Ying (Deceased) v Fulland International Ltd[20]; Tsang Kun Kau & Anor v Yu Ying[21]. Furthermore, the act of enclosing land with a fence is good evidence to show an intention to exclude the world at large. A squatter’s actions in enclosing and using the land are unequivocal and indicate an intention to possess the land on his own to the exclusion of the world at large, including the paper title owner, as far as was reasonably necessary: Fung Yuk Luen v Wong Fun Lan & Ors[22].

25.  Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight. See Wong Tak Yue[23] at 69A-C per Li CJ.

D.3 The burden and standard of proof

26.  The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land: Tsang Foo Keung and Key Kwong Development Ltd v Chu Jim Mi Jimmy[24].

27.  In the case of a piece of open land in the New Territories, to make out his claim for adverse possession, the squatter must show that he has exercised a sufficient degree of exclusive physical control of the land (having regard to the nature of the land and the manner in which land of that nature is commonly enjoyed) vis-à-vis not just the owner, but also the world at large. Similarly, the requisite intention to exclude others from the disputed land so far as is reasonably practicable and so far as the law allows must also be shown not just against the owner, but also the world at large. See: Wu Yim Chung v Lo Wai Ching & Anor[25].

D.4 The period of adverse possession as required by the law

28.  The period of adverse possession as required by sections 7 and 17 of the Limitation Ordinance (Cap 347) is 20 years if the right of action accrued before 1 July 1991 and is 12 years if the right of action accrued after 1 July 1991.

E. ASSESSING THE CREDIBILITY OF WITNESSES: APPLICABLE LEGAL PRINCIPLES

29.  The tests for assessing credibility of a party’s case are well-established. The Court should take into consideration inter alia the following factors: whether the party’s case is inherently plausible or implausible; whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable; where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility, and the demeanour of the witness. See: Lee Fu Wing v Yan Po Ting Paul[26].

30.  Furthermore, the court will have to be alert to the contradictions and inconsistencies between the oral testimony and the witness statement of a witness. The internal inconsistency of a witness’ evidence is often tested by a comparison between the witness’ oral testimony and his witness statement: Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009 (unrep, 8 April 2014), at §79 per DHCJ Eugene Fung SC (as he then was).

31.  In my view, the contemporaneous documents provide the most reliable insight into the events that transpired. As the Court of Appeal observed in Esquire (Electronics) Ltd v Hong Kong & Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, per Stock JA (as he then was) at §158, where there exists a wealth of contemporaneous documents, credibility is to be tested by reference most particularly to them.

F. THE WITNESSES

F.1 Factual witnesses

32.  Ps called Wong Ying Lung, Jackie (黃英龍) (“Wong”) and Chong Siu Ling (莊少玲) (“Ps’ Ms Chong”) to give evidence. Wong is the General Manager of P1 and the Company Secretary of P2, while Ps’ Ms Chong has served as the supervisor of Sun Tao Yuen since 2014 and continues in that role. Wong filed a witness statement, a supplemental witness statement, a further supplemental witness statement and a 4^th supplemental witness statement. Ps’ Ms Chong filed a witness statement in which she produced a contemporaneous document which this Court considers crucial to the issue of factual possession of the Occupied Areas – namely, the layout plan titled “新陶園護老院全院平面圖” dated 20 July 1995 (“Sun Tao Yuen’s Layout Plan”). I will address Sun Tao Yuen’s Layout Plan in greater detail later in this Judgment.

33.  Madam Tang/D1 gave evidence herself and called Chong Kiu Ling (莊嬌玲) (“D1’s Ms Chong”) to give evidence. Both D1 and D1’s Ms Chong filed witness statements.

34.  D2 called Ma Tung Hoi (馬東海) (“Ma”) to give evidence.

35.  All witnesses adopted their witness statements as their evidence-in-chief and were cross-examined.

36.  On the whole, I find that Wong and Ps’ Ms Chong gave their evidence in a straightforward and candid manner. They impressed me as truthful witnesses. Although they may not have had first-hand knowledge of the physical possession and intention to possess the Occupied Areas in 1993 and 1994, their evidence is consistent with the probabilities and is generally supported by contemporaneous documents. Their evidence is also consistent with expert evidence.

37.  By contrast, the testimony of Madam Tang/D1, D1’s Ms Chong and Ma was unsatisfactory. Their evidence was either contradicted by contemporaneous documents, incoherent, or self-contradictory. It was also inconsistent with expert evidence, most of which is not in dispute. Furthermore, generally, where the evidence of Ps’ witnesses conflicts with that of D1 and D2, I generally prefer the former. I will elaborate on this further when addressing specific aspects of their testimony later in this Judgment.

F.2 Expert witnesses

38.  Ps called Ng Jor Choi (“Ps’ Expert”), an Authorised Land Surveyor (“ALS”), to give expert evidence. Ps’ Expert filed an expert survey report dated 25 July 2019.

39.  D2 called Joseph Wong Yiu Cho (“D1’s Expert”), also an ALS, to give expert evidence. D2’s Expert filed a survey report dated 30 July 2019.

40.  Ps’ Expert and D2’s Expert filed a joint expert report dated 20 April 2020 (“Ps & D2’s Joint Expert Report”).

41.  D1 called Chan Tat Wing (“D1’s Expert”), also an ALS, to give expert evidence. D1’s Expert filed an expert report dated 21 September 2023.

42.  Additionally, Ps’ Expert and D1’s Expert filed a joint expert report dated 21 November 2023 (“Ps’ & D1’s Joint Expert Report”).

43.  Ps’ Expert, D1’s Expert and D2’s Expert are collectively referred to as “the Experts”. The Experts adopted their respective reports and joint reports as their evidence-in-chief and cross-examined. There were no significant differences between their respective opinions. In particular, I find that the conclusions in the joint reports are of considerable assistance in resolving the issue of whether the Occupied Area were enclosed within the boundary of Sun Tao Yuen, and thereby in establishing factual possession.

G. ANALYSIS OF THE EVIDENCE AND FINDINGS OF FACT ON FACTUAL POSSESSION

44.  I will now apply the aforementioned principles to the facts of this case. I will first address the issue of factual possession before turning to the question of intention to possess.

G.1 Were the Occupied Areas enclosed within the boundary of Sun Tao Yuen?

45.  In my view, the issue of whether the Occupied Areas were enclosed within the boundary of Sun Tao Yuen lies at the core of Ps’ claim for adverse possession. As noted above, I find the expert evidence to be considerable assistance in resolving this issue. I also consider the contemporaneous documents to be critically important. Accordingly, I will begin this part of the Judgment by analysing the expert evidence and the contemporaneous documents before turning to the witness testimony.

G.1.1 The Expert evidence

46.  I refer to the following paragraphs from the Joint Expert Reports:-

(1) In §§15 & 16 of Ps’ and D2’s Joint Expert Report, they agreed that:-

“15. … Area 2 is a narrow strip of land (width about 2.2m – 1.8m) with a wall along its southern perimeter and gate adjoining its eastern end.

16. Between April 1992 and sometime before the 3 August 2015 aerial photo (…), Area 2 appeared to be part of the open space available for use as, inter alia, part of the access to portion of Lot 216 S.G., Lot 216 S.H and Lot 234 S.B. ss1, Area 2 together with Lot 216 S.G, Lot 216 S.H and Lot 234 S.B ss.1 were enclosed or separated all the sides by the gate and fence/walls during the period.” [Emphasis added]

As explained by D2’s Expert in his oral testimony, the term “enclosed” refers to the lots being surrounded on all sides by fences, walls, and a gate, while “separated” indicates that the lots were isolated from the outside during the period from April 1992 to 3 April 2015.

(2) Similarly, in §§14 and 15 in Ps and D1’s Joint Expert Report, they agreed that:-

“14. … since 1992, the Occupied Area 1 is a narrow strip of land with a wall aligned along its southern perimeter. It is made up with the north-eastern” part of Lot 216 S.M ss.1 and the northern part of Lot 234 S.B ss. 2 S.A. A gate has been locating at the far eastern side of the Occupied Area 1 near the northeastern corner of Lot 234 S.B ss.2 RP. Access to the Occupied Area 1 has to be made through the gate.

15. Between 1992 and sometime 2014, the Occupied Area 1 was occupied as a planter area and enclosed together with Lot 216 S.G, Lot 216 S.H and Lot 234 S.B ss. 1 (‘the Elderly Home’) by fences/walls and gate. The gate at the far eastern side of the Occupied Area 1 near the northeastern corner of Lot 234 S.B. ss. 2 RP was designated as Gate 1 in [D1’s Expert] report.” [Emphasis added]

47.  Accordingly, the Experts agreed that the Occupied Areas were “enclosed together” within the boundary of Sun Tao Yuen by fences, walls, and a gate. In my view, the expert evidence clearly supports Ps’ claim that the Occupied Areas were enclosed within the boundary of Sun Tao Yuen from 1992 onwards.

48.  Secondly, to understand what the Experts meant when they referred to the Occupied Areas being “enclosed together” within the boundary of Sun Tao Yuen by fences, walls and a gate, aerial photo No A30667 – taken on 28 April 1992 and included as Appendix 13 of Ps’ Expert Report – is instructive. This aerial photo is annexed to this Judgement as Annex C. According to Ps’ Expert, whose interpretation was not disputed by either D1’s or D2’s Expert, the photo depicts:-

(1) Wall A along the northern boundary of Sun Tao Yuen;

(2) Wall B along the eastern boundary;

(3) Wall C between the boundary of P1’s Lot and D2’s Lot;

(4) Wall D along the western boundary; and

(5) A gate located on the south-eastern corner of Sun Tao Yuen (“the Gate”).

This aerial photo, together with the Experts’ interpretation, clearly supports Ps’ claim that the Occupied Areas were enclosed within the boundary of Sun Tao Yuen from 1992 onwards.

49.  Thirdly, although Annex C does not clearly show whether Wall A and Wall D converge at the north-western corner, the Experts agreed that, both theoretically and logically, they should. Specifically, when questioned about the aerial photo dated 5 October 1990, D2’s Expert fairly acknowledged that the two walls or fences on the northern and western sides – corresponding approximately to Wall A and Wall B in Annex C, did appear to merge on the north-western corner. This further supports Ps’ claim of enclosure of the Occupied Areas from 1992 onwards.

50.  Notably, in their written closing submissions, Mr Lam and Mr Chau did not address the above findings of the Experts at all.

G.1.2 The contemporaneous documentary evidence

51.  I refer to the following contemporaneous documentary evidence.

52.  First, Sun Tao Yuen’s Layout Plan. It was signed by 蔡傳疋, one of P1’s tenants at the time, and it shows that Sun Tao Yuen was enclosed on all four sides:-

(1) A wall along the eastern boundary, measuring 2,200 cm in length;

(2) A wall along the northern boundary;

(3) A wall along the western boundary; and

(4) A wall on the boundary between P1’s Lot and D2’s Lot, as well as between P2’s Lot and the Deceased’s Lot.

53.  Sun Tao Yuen’s Layout Plan also depicts the following ground features:-

(1) A small house located on each of P’1s Lot and P2’s Lot, as well as on the north-western corner of Sun Tao Yuen;

(2) A rectangular frame situated approximately on the boundary between P2’s Lot and the Deceased’s Lot, marked with the words “花埔” (“the Flower Bed”); and

(3) A garden located approximately on the boundary between P1’s Lot and D2’s Lot, marked with the words “花園” (“the Garden”).

54.  When questioned about the Sun Tao Yuen’s Layout Plan, the Experts agreed that:-

(1) The walls depicted on the northern, eastern, southern and western boundaries of Sun Tao Yuen’s Layout Plan approximately correspond to Wall A, Wall B, Wall C, and Wall D shown in Annex C;

(2) The small houses shown on P1’s Lot, P2’s Lot and on the north-western corner of Sun Tao Yuen (ie Lot No 216 SC) approximately match the small houses depicted on Annex C; and

(3) The Flower Bed shown on Sun Tao Yuen’s Layout Plan approximately corresponds to the flower bed located on the boundary between P2’s Lot and the Deceased’s Lot, as depicted on Annex I.

55.  In my view, Sun Tao Yuen’s Layout Plan clearly supports Ps’ claim that the Occupied Areas were enclosed within the boundary of Sai Tao Yuen from 1995 onwards.

56.  It is also notable that in their written closing submissions, Mr Lam and Mr Chau did not address the above findings of the Experts at all.

57.  Secondly, the tenancy agreements entered into between P1 and successive tenants are as follows:-

(1) A tenancy agreement dated 19 November 1993 between P1, as landlord, and 李志紅 and 蔡傳疋, as tenants, for the lease of properties situated at Lot Nos 216C, 216H & 234B1 for a period of two years from 15 November 1993 to 14 November 1995;

(2) A tenancy agreement dated 29 January 2005 between P1, as landlord, and Great Glory (Hong Kong) Ltd (炘輝有限公司) (“GC”), as tenant, for the lease of properties situated at Lot No 234 SB ss 1 and Lot No 216 SC for a period of three years from 1 February 2005 to 31 January 2008.

(3) A tenancy agreement stamped on 7 April 2011 between P1, as landlord, and GC, as tenant, for the lease of properties situated at Lots 216H, 216C and 234B1 from a period of 5 years for 1 May 2011 to 30 April 2016.

(4) A tenancy agreement dated 5 May 2016 between P1, as landlord, and GC, as tenant for the lease of properties situated at Lots 216H, 216C and 234B1 for a period of 3 years from 1 May 2016 to 30 April 2019.

(5) A tenancy agreement dated 3 April 2019 between P1, as landlord, and GC, as tenant, for the lease of properties situated at Lot Nos 216H, 216C and 234B1 for a period of 2 years from 1 May 2019 to 30 April 2021.

58.  Again, in their closing submissions, Mr Lam and Mr Chau did not make any submissions on the tenancy agreements.

59.  In my view, these successive tenancy agreements further support Ps’ case. By granting these leases to successive tenants, P1 was “dealing with the land in question as an occupying owner might have been expected to deal with it and that on-one else has done so,” (Powell’s case, at p 471 per Slade J), thereby constituting factual possession of the Occupied Areas.

G.2 Was the Gate open or closed during the material time?

60.  I have already referred to the expert evidence above, which includes their opinion on the existence and location of the Gate. The following expert evidence is particularly significant:-

(1) Ps’ and D2’s Experts agreed that the Gate adjourned the eastern end of Occupied Area 2[27];

(2) Ps’ and D2’s Experts agreed that, together with the surrounding walls, the Gate served the important function of enclosing Sun Tao Yuen or separating it from the outside[28];

(3) Ps’ and D1’s Experts agreed that access to Occupied Area 1 “has to be made through the gate”[29]; and

(4) Ps’ and D1’s Experts agreed that the Gate was closed during the periods 1993-1996 and 1998-2014[30].

61.  In my view, the joint opinion of Ps’ and D1’s Experts that the Gate was closed between 1998 and 2014 is significant, as this period coincides with the timeframe during which Ps claim adverse possession of the Occupied Areas – namely, the 12-year period beginning in 1993-1994.

62.  This joint opinion of P and D1’s Experts is also consistent with, and supports, the evidence given by Ps’ Ms Chong, which I accept on balance. She stated that, due to the operational and safety/security requirements of the elderly home, the Gate was and is always kept locked, and would only be opened upon request or when necessary, with staff from Sun Tao Yuen present during its use.

G.3 Acceptance of Wong’s evidence regarding the fact that the Occupied Area were enclosed within the boundary of Sun Tao Yuen

63.  In the circumstances, I find Wong’s evidence regarding the fact that the Occupied Areas were enclosed within the boundary of Sun Tao Yuen to be consistent with both expert evidence and contemporary documents, and I have no hesitation in accepting it: -

(1) As early as 1993 (ie before D2 became the owner of Occupied Area 2), the Occupied Areas had already formed part of the fenced-off land belonging to P1. This area was leased by P1 to 李志紅 and 蔡傳疋as part of the premises they operated under the name Sun Tao Yuen. Accordingly, the existence, occupation, operation, and historical context of Sun Tao Yuen are beyond dispute (“早於1993年（即是第二被告成為所佔土地業主之前），所佔土地已為原告圍封土地之一部份，並被原告租予李志紅以及蔡傳疋作為他們經營新陶園範圍之一。因此，新陶園的存在，佔用範圍，經營以及歷史等等事實，根本毋庸置疑。”)

(2) Occupied Area 1 is located within the fenced-off land (ie, within the boundaries of Sun Tao Yuen), which has only one point of access. This entrance is secured by a large gate and lock and is not open to the public. Except for individuals who have been granted permission, no one may enter Occupied Area 1 without prior approval – let alone do so repeatedly and freely (“區一位於圍封土地之內（即是新陶園的範圍），而圍封土地只有一個進出口，而進出入口又設有大閘門鎖不會對外開放，除了獲准許人士，根本沒人可以不用得到批准進入區一，更遑論是多次可以自由進出其中。”)

G.4 Use of the Occupied Areas

64.  As I have found that the expert evidence, contemporaneous documentary evidence, and factual evidence support Ps’ case that the Occupied Areas were enclosed within the boundary of Sun Tao Yuen, thereby establishing their factual possession of those areas, it is, strictly speaking, unnecessary for me to address Ps’ use of the Occupied Areas. This is because, for the purposes of establishing factual possession, what is required is the taking of possession, and not continuous use (see: Law Bing Kee v Person(s) In Occupation of RP & Anor[31]; Chambers v London Borough of Havering[32]; Chow Tin Sang also known as Chau Tin Sang as manager of Chau Fuk Tso v Citihero International Limited[33]. Nevertheless, for completeness, I will address Ps’ use below.

65.  First, regarding the use of Occupied Area 1 by Ps and/or Sun Tao Yuen:-

(1) D1’s Expert, in interpreting aerial photo dated 20 October 1992, opined in his expert report dated 21 September 2023 that:-

“Occupied Area 1 was mostly occupied by a flower bed (‘Flower Bed,’) in trapezium shape, the Flower Bed was adjourned to the Wall.”

(2) Ps’ and D1s’ Experts agreed in their Joint Expert report that:-

“Between 1992 and 2014, Occupied Area 1 was occupied as a planter area …”

(3) This expert evidence is consistent with Sun Tao Yuen’s Layout Plan, which depicts a rectangular frame situated approximately on the boundary between P2’s Lot and the Deceased’s Lot (ie, Occupied Area 1), marked with the words “花埔”.

(4) The expert and contemporaneous documentary evidence clearly support Ps’ pleaded case that the Flower Bed is shown and marked “FB” on Annex I to their Answer to D2’s Request for Further and Better Particulars of the Statement of Claim dated 4 September 2019, namely aerial photo No A30667 dated 28 April 1992, which is Annex C hereto.

(5) The expert and contemporaneous documentary evidence also support Wong’s evidence (which, on balance, I accept) that the use of the Occupied Areas has not changed significantly; part of the area has been converted into flower beds for the planting of flowers, plants, and trees. Nearby, there are tables and chairs, and residents engage in light exercise and rest in that area. (“所佔土地使用情況亦無太大變化，部份地方被作花床栽種花草樹木，該處附近亦有桌椅，及有院友進行輕度運動以及休息。”)[34]

66.  Second, regarding the use of Occupied Area 2 by Ps and/or Sun Tao Yuen:-

(1) Ps and D2’s Experts agreed, in §§16 and 17 their Joint Expert Report, that between April 1994 and sometime before 3 August 2015, Occupied Area 2 “appeared to be part of the open space available for use, as, inter alia, part of the access to portion of Lot 216 SG, Lot 216 SH and Lot 234 SB ss 1.”

(2) The expert evidence is consistent with Sun Tao Yuen’s Layout Plan, which depicts a garden located approximately on the boundary between P1’s Lot and D2’s Lot, marked with the words “花園”.

(3) The expert evidence and contemporaneous documentary evidence clearly support Ps’ pleaded case that, at all material times before 2015, Sun Tao Yuen regularly arranged for residents to engage in light exercise at the Occupied Areas; that Sun Tao Yuen regularly arranged residents to spend leisure time at the Occupied Areas to enjoy sunlight and fresh air; that accordingly, the Occupied Areas were and are being used by Sun Tao Yuen as a garden and recreational area for the residents; and that the Occupied Areas were and are further being used as a temporary car-parking area when family or friends of the residents visit[35]. The evidence further supports Ps’ case that the approximate location of the area is shown and marked “CPG” on Annex I to their Answer to D2’s Request for Further and Better Particulars of the Reply and Defence to Counterclaim dated Statement of Claim, dated 4 September 2019, namely aerial photo NoA30667 dated 28 April 1992, which is Annex C hereto.

(4) The expert evidence and contemporaneous documentary evidence also support Wong’s evidence (which, on balance, I accept) that when the weather is suitable, Sun Tao Yuen places outdoor tables and chairs in the area for residents to relax, enjoy the flowers and plants, and engage in light exercise. Additionally, part of the area is used for temporary parking. (“新陶園會在天氣合適時候擺放露天枱凳以供院友休閒觀賞花草之用以及進行輕量運動。另外，部份地方則被用作臨時泊車之用。”)

G.5 Rejection of key aspects of D1, D1’s Ms Chong and Ma’s evidence

67.  In her testimony, D1 admitted that when the Deceased purchased the Deceased’s Lot and the small house built thereon in April 1999, Sun Tao Yuen was already operating on Ps’ Lot.

68.  I find the following assertions made by D1 to be directly contradicted by expert evidence and contemporaneous documents, and I have no hesitation in rejecting them:-

(1) That the boundary of Sun Tao Yuen did not extend to Area 1, and that Area 1 remained a slope covered with weeds at the time (“新陶園的範圍不伸延至一區，而當時一區的位置繼續是斜坡及雜草地”); and

(2) That she had never seen Area 1 being used for the planting of flowers, plants, or trees, as alleged by Ps’ witness (“本人從來沒有見過一區用作原告人的證人指稱的栽種花草樹木”).

69.  I also reject the evidence of D1’s Ms Chong, who claimed that between 2002 and 2004, the grassy area outside the wall between Ps’ Lot and the Deceased’s Lot – towards the direction of the elderly home – was freely accessible (“2002年至2004年間這幅圍牆以外向老人院方向的草地範圍是可以自由進出”). This assertion is flatly contradicted by contemporaneous documents and expert evidence.

70.  Similarly, I reject Ma’s evidence that, at the time when D2 purchased D2’s Lot and the small house built thereon, Area 2 was not used by anyone and showed no signs of occupation (“二區係冇比人用既，亦唔見到有畀人佔用既跡象”). This claim is clearly contradicted by both contemporaneous documents and expert evidence.

G.6 Rejection of D1 and D2’s submissions regarding factual possession

71.  I now address the written closing submissions of D1 and D2 concerning the issue of factual possession. I will address Mr Lam’s submissions first, flowed by those of Mr Chau.

72.  First, Mr Lam criticised the evidence contained in the witness statement of Ps’ Ms Chong, asserting that §§5 to 10 of her witness statement were identical to the witness statement of the former superintendent of Sun Tao Yuen, Hui Shui Lam (許水林)[36]. He relied on Ho Sing Yin v Chan Yiu Ling[37] and Yeung Pui Chun v Cheng Wing Sang[38]. With respect, I do not consider that this argument assists D1:-

(1) As pointed out by Mr Szeto[39], the unchallenged evidence in the present case is that the former superintendent of Sun Tao Yuen emigrated to Australia in 2022 and was unable to return to testify. In substitution, Ps’ Ms Chong – who has served as the supervisor of Sun Tao Yuen since 2014 and possesses the same factual exposure as the original witness regarding its operations – came forward to give evidence.

(2) The basis for Ps’ Ms Chong replacing the original witness lies in the fact that their intended evidence was identical, and no prejudice would be suffered by Ds.

(3) In any event, and as a significant distinguishing feature, Ps’ Ms Chong has provided unchallenged evidence based on her knowledge of the operations of Sun Tao Yuen[40].

(4) As discussed below, I find Ps’ Ms Chong’s evidence to be consistent with contemporaneous documents and expert evidence, and I accept it.

73.  Secondly, Mr Lam argued that Ps’ Expert “admitted that he could not tell from aerial photos: (1) the height of the walls/fences; (2) whether the gate was locked or not; (3) the built up of the planter area.”[41] I reject this submission for the following reasons: -

(1) Whether Ps’ Expert could determine the height of the walls or fences from aerial photos is immaterial to the issue of factual possession. D1 has not pleaded any case suggesting that, due to the height of the walls or fences, members of the public could freely access Sun Tao Yuen.

(2) Similarly, whether Ps’ Expert could ascertain from aerial photos whether the Gate was locked is irrelevant to the issue of factual possession. I reiterate the expert opinion of both Ps’ and D1’s Experts that the Gate was closed between 1998 and 2014, as previously noted. Moreover, D1 has not pleaded any case asserting that the Gate was unlocked and therefore Sun Tao Yuen was accessible to the public. On the contrary, as noted in §15 above, D1’s only pleaded case is that she, her son, and the public were “allowed” to enter the Occupied Areas without obstruction before 2015 – a claim I reject as being contradicted by both contemporaneous documents and expert evidence. Notably, §12 of D1’s D&C makes no mention of any gate whatsoever.

(3) It is unclear what Mr Lam intended by stating that Ps’ Expert “admitted that he could not tell from aerial photos … the built up of the planter area.” This assertion contradicts the opinion of D1’s own expert, who stated in §11 of his Expert Report that “Occupied Area 1 was mostly occupied by a flower bed (‘Flower Bed’), in trapezium shape, the Flower Bed was adjoined to the Wall.” Mr Lam’s argument also runs counter to the joint opinion of Ps’ and D1’s Expert, who agreed in §15 of their Joint Expert Report that “between 1992 and sometime 2014, the Occupied Area 1 was occupied as a planter area.” Additionally, Sun Tao Yuen’s Layout Plan depicts the Flower Bed in a rectangular shape situated at the boundary between P2’s Lot and the Deceased’s Lot.

74.  Thirdly, Mr Lam contended that D1 has personal knowledge of what happened during the period from 1999 to 2015[42]; that D1’s Ms Chong is an independent witness with personal knowledge of Occupied Area 1 from 2002 to 2004[43]; and that, since Ps have no evidence to contradict their testimony, their evidence should be accepted by the Court[44]. He further submitted that Wong’s evidence is “unreliable and self-serving”[45] and “not useful in showing necessary elements of adverse possession in the relevant period from 1993/1994 to 2005/2006,” and that the evidence of Ps’ Ms Chong “is not useful in showing necessary elements of adverse possession in the relevant period from 1993/1994 to 2005/2006,” because they lack personal knowledge of the relevant events. With respect, I disagree for the following reasons:-

(1) It is not the law that whenever a witness has personal knowledge of a matter and the opposing witness does not, the Court must accept the evidence of the former and reject that of the latter. The Court must still assess the credibility of all witnesses by reference to the principles articulated in Section E above.

(2) In the present case, I find that the evidence of D1 and D1’s Ms Chong, although they possess personal knowledge of the relevant matters, is contradicted by contemporaneous documents and the expert evidence referred to above. Accordingly, I reject their evidence.

(3) Conversely, I find that the evidence of Wong and Ps’ Ms Chong, although they lack personal knowledge of the relevant matters, is consistent with contemporaneous documents and the expert evidence referred to above. Accordingly, I accept their evidence.

75.  I now turn to Mr Chau’s submissions concerning the issue of factual possession.

76.  First, Mr Chau cited Wills v Wills[46] in support of the proposition that “fencing, although almost always significant, is not invariably either necessary or sufficient evidence of possession.”[47] With respect, I do not agree that Wills v Wills assists D2’s case, for the following reasons:-

(1) The passage quoted and relied on by Mr Chau originates from the judgment of Lord Walker. In that passage, Lord Walker expressly stated that fencing is “almost always significant.”

(2) Whether fencing constitutes necessary or sufficient evidence of possession depends on the specific circumstances of each case. As the Court of Appeal observed in Gotland, though it is not absolutely essential to have the land fenced off in order to establish adverse possession, this is a classic way of doing so. I do not understand Mr Chau to argue otherwise.

77.  Secondly, Mr Chau relied on Batt v Adams[48] and Tang Wong Loi v Chan Sam Kiu,[49] and contended that “even where the disputed land is fenced in … that itself far from establishes factual possession and the necessary intention to possess. The court should still closely analyse the tenant’s use of the land and intent”[50]. With respect, I do not agree:-

(1) I reiterate §20 above regarding the significance of fencing in establishing a claim for adverse possession.

(2) I also refer to §66 above concerning the use of Occupied Area 2 by Ps and/or Sun Tao Yuen.

78.  Thirdly, similar to Mr Lam, Mr Chau further contended that “Ps’ witnesses have no personal knowledge of any material facts as regards events before 2015 in the case of Wong and 2014 in the case of [Ps’ Ms Chong].”[51] I refer to §74 above, in which I rejected a similar submission advanced by Mr Lam.

G.5 Conclusion on Ps’ factual possession of the Occupied Areas

79.  In the premises, I find that Ps have established that the Occupied Areas were enclosed within the boundary of Sun Tao Yuen since 1993 to 1994, thereby constituting factual possession of the Occupied Areas.

H. PS HAVE THE INTENTION TO POSSESS THE OCCUPIED AREAS

80.  I reiterate the legal principles set out in §24 above. As Ps’ acts of physical occupation of the Occupied Areas were unequivocal or as Ps have established factual occupation and use of the land as an owner would, they do not need to adduce additional evidence to establish the intention to possess. See Gotland. Furthermore, I find that Ps’ act of enclosing Sun Tao Yuen with the walls is good evidence to show an intention to exclude the world at large, and that Ps’ actions in enclosing Sun Tao Yuen are unequivocal and indicate an intention to possess the land on his own to the exclusion of the world at large, including the paper title owner, as far as was reasonably necessary: Fung Yuk Luen.

81.  I am of the view that the contemporaneous documents and expert evidence clearly support Ps’ pleaded case (which, on balance, I accept) that they had “for all material times on de facto basis rented [Ps’ Lots] and the Occupied Areas to Sun Tao Yuen in manner as pleaded hereof.” In this context, I accept the following evidence of Ps’ witnesses, which demonstrates that the Occupied Areas were leased to the operators of Sun Tao Yuen together with Ps’ Lots on a de facto basis. I note that this evidence was not specifically challenged by either Mr Lam or Mr Chau:-

(1) When he was asked by Mr Lam how Ps occupied the Occupied Areas 1 and 2, Wong answered: “The area was fenced off, locked and managed. It was leased to the elderly home, and once leased out, it was for their use.” (“圍起鎖起有人管理，老人院租咗，租咗出去就係佢用”).

(2) When asked by Mr Chau that Sun Tao Yuen was using the Occupied Areas for their own benefit, Ps’ Ms Chong answered: “I disagree, because the use was already included at the time of the lease.” (“唔同意，因為租的時候已經包埋嚟用。”)

82.  I now procced to address the submissions of Mr Lam and Mr Chau concerning the issue of intention to possess. I will consider Mr Lam’s submissions first, before turning to those of Mr Chau.

83.  First, Mr Lam contended that “there is no factual witness from Sun Tao Yuen who can testify what was its intention from 1993/1994 to 2005/2006”[52]. In this context, I accept the submission of Mr Szeto that the relevant intention is that of Ps. By granting successive leases to the operators of Sun Tao Yuen, Ps have demonstrated their intention, in their own name and on their own behalf, to exclude the world at large, including the owner with the paper title (ie, D1 and D2), thereby evidencing an intention to possess the Occupied Areas[53] (see Powell’s case, at p 472 per Slade J).

84.  Secondly, Mr Lam relied on the following portions of D1 evidence in support of his contention. However, I have either already rejected this evidence or will do so, as it is contradicted by contemporaneous documents and expert evidence:-

(1) That D1 could enter Occupier Area 1 without any obstruction from 1999 to 2015 – I have already rejected this evidence as being contradicted by contemporaneous documents and expert evidence.

(2) That she carried out activities as the owner of Occupier Area 1[54] – This allegation is not pleaded in D1’s D&C. It is a bare assertion, self-serving, entirely unsupported by contemporaneous documents, and, on balance, I reject it.

(3) That Sun Tao Yuen’s manager had asked for permission to plant two trees[55] – This allegation is likewise not pleaded in D1’s D&C. It is a bare assertion, self-serving, entirely unsupported by contemporaneous documents, and, on balance, I reject it.

(4) That in or about 2015, Wong orally promised D1 “face to face” that he would no longer infringe upon or enter the Occupied Area[56] – This plea is contradicted by D1’s own allegation that the promise was not made by Wong “face to face,” but rather by the former village head of Ko Po Tsuen, without any assertion that the village head was the agent of Ps[57]. I have no hesitation in rejecting this contrived allegation.

85.  Thirdly, Mr Lam contended that “aerial photos in 1992 and 1997 showed that the gate was opened,” and that “it is more likely than not that the gate of Sun Tao Yuen was not locked in the period from 1993/1994 to 2005/2006 (at least up to 1997)”[58]. With respect, I do not agree:-

(1) Mr Lam’s submission that “aerial photos in 1992 and 1997 showed that the Gate was opened” was derived from §16 of P’s & D1’s Joint Expert Report. However, the full paragraph reads:-

“Gate 1 was found opened in the 1992 and 1997 aerial photos but was seen closed between 1993 - 1996 and 1998 - 2014.”

Mr Lam’s submission is therefore incomplete, as it quotes only the portion of §16 stating that the Gate was opened in the 1992 and 1997, while omitting to mention the portion confirming that the Gate was closed between 1993-1996 and 1998-2014. To Mr Lam’s credit, when the full paragraph was shown to him, he readily accepted its complete effect.

(2) Mr Lam’s submission that “it is more likely than not that the gate of Sun Tao Yuen was not locked in the period from 1993/1994 to 2005/2006 (at least up to 1997)” is directly contradicted by the joint expert evidence of Ps’ and D1’s Experts. I have no hesitation in rejecting it.

86.  Fourthly, Mr Lam contended that the evidence provided by Ps’ Ms Chong regarding the lock and use of the Gate pertained only to events occurring after 2014, and therefore could not be relied upon to establish the status of the Gate prior to that time.[59] With respect, I do not agree. As noted above, Ps’ Ms Chong’s evidence on the lock and use of the Gate is supported by the joint expert opinion of both Ps’ and D1’s Experts. Furthermore, there is no evidence before the Court indicating that the arrangement concerning the lock and use of the Gate had changed prior to 2014 – particularly given that the purpose for which Ps’ Lots were used remained the same, namely, as a home for the aged.

87.  I now proceed to address Mr Chau’s submissions regarding the intention to possess.

88.  First, Mr Chau contended that “all leases covering the relevant periods for the Elderly Home only refer to Lots 216C, 216H and 234B1. They obviously do not include Areas 1 and 2”[60]. With respect, this submission does not assist D2, as it fails to address Ps’ pleaded case – which, as noted above, I accept on balance – that Ps had, at all material times, leased both Ps’ Lots and the Occupied Areas to Sun Tao Yuen on a de facto basis. Accordingly, the fact that the leases do not expressly include the Occupied Areas is irrelevant and does not defeat Ps’ claim for adverse possession.

89.  Secondly, Mr Chau argued that there was a lack of evidence on Sun Tao Yuen’s intention[61]. With respect, this submission likewise does not assist D2. I reiterate my observations in §83 above, where I have rejected a similar submission advanced by Mr Lam.

90.  Thirdly, Mr Chau argued that “the intention of any enclosure of the Elderly Home was to keep the elderly from straying onto and getting lost in the neighbouring areas; and not to exclude persons from Kam Fung Terrace from entering Area 2 and Area 1. This is analogous to enclosure to fence animals in, and depending on the facts, a Court may hold that such an intention was not to keep the true owner out.”[62] He relied on Jourdan & Radley-Gardner at §§9-58 to 9-62 and Inglewood v Baker[63]. With respect, I do not agree:-

(1) It is not part of D2’s pleaded case that the purpose of any enclosure by Sun Tao Yuen was to keep the elderly from straying onto and getting lost in the neighbouring areas. I have serious reservations as to whether it is open to D2 to advance this argument when it has not been pleaded. To do so would amount to an ambush on Ps and it would be unfair to Ps if D2 were permitted to introduce an unpleaded issue at closing.

(2) In any event, there is no evidence that Sun Tao Yuen’s intention in enclosing the Occupied Areas was to keep the elderly from straying onto and getting lost in the neighbouring areas. As noted above, Ps’ pleaded case – which I have accepted – is that they had, at all material times, rented both Ps’ Lots and the Occupied Areas to Sun Tao Yuen on a de facto basis. Therefore, Sun Tao Yuen’s intention in this regard is irrelevant.

(3) As Jourdan & Radley-Gardner observed at §9-57, in London Borough of Hounslow v Minchinton[64], the squatters used the disputed strip as part of their garden and enclosed it to keep their dogs within the garden. It was argued that this demonstrated that the intention was to keep the dogs in, rather than to exclude others. Millett LJ (as he then was) rejected that argument, stating: “Their motive is irrelevant. The important thing is that they were intending to allow their dogs to make full use of what they plainly regarded as their land, and which they used as their land.”

(4) In comparing the approaches in Inglewood v Baker and Minchinton, Jourdan & Radley-Gardner concluded at §9-62 that:-

“…… the approach in Minchinton is to be preferred. What matters is for the manifested intention in one’s own name and on one’s own behalf, to exercise exclusive control of the disputed land. The fact that the intention to make exclusive use of the land is formed because of a desire to keep animals in does not affect the nature or quality of the intention. It explains the reason that the intention was formed, but does not in any way detract from the existence of the intention.”

I. CONCLUSION

91.  In the premises, I find that Ps succeed in their claim for adverse possession of Occupied Area 1 and Occupied Area 2 against the Deceased/D1 and D2, respectively. Accordingly, I make the following orders:-

As Against the 1^st Defendant

(1) A declaration that the registered title of the Deceased in respect of the Occupied Area 1, within the Deceased Lot and coloured orange in Annex B hereto, is extinguished; and

(2) A declaration that Ps are entitled to possessory title and the sole and exclusive right and/or entitlement to hold, use, occupy, deal with, and enjoy Occupied Area 1 to the exclusion of the Deceased.

As Against the 2^nd Defendant

(1) A declaration that the registered title of the 2^nd Defendant in respect of the Occupied Area 2, within the 2^nd Defendant’s Lot and coloured purple in Annex B hereto, is extinguished; and

(2) A declaration that Ps are entitled to possessory title and the sole and exclusive right and/or entitlement to hold, use, occupy, deal with, and enjoy Occupied Area 2 to the exclusion of the 2^nd Defendant.

92.  There is no reason why costs should not follow the event. I therefore grant a cost order nisi that D1 and D2 shall pay Ps costs of the action (including any reserved costs), to be taxed if not agreed, with certificate for counsel. D1’s own costs shall be taxed in accordance with the Legal Aid Regulations.

93.  Finally, I wish to express my gratitude to counsel for the assistance they have rendered to the Court.

Annex A

Annex B

Annex C