Robin Cooke:

This appeal in litigation in the State of Brunei concerns the limitation of actions as between co-owners of land and the relationship between statutes of limitation and Torrens titles.

By action commenced in the High Court of Brunei on 19 June 1979 the four plaintiffs, members of the family of a deceased co-owner of a parcel of land, sued the defendant, a son of the other deceased co-owner, claiming an account of rentals, an order for the demolition of buildings, damages and other relief. Initially the plaintiffs obtained judgment by default, but this was set aside on the application of the defendant and the setting aside was upheld by the Court of Appeal of Brunei. The defendant then filed a defence and counterclaim, later amended, and the action was tried by Jones J sitting as Commissioner. The main issue was whether the action was barred by the Limitation Enactment 1962. In a judgment delivered on 4 August 1982 Jones J held that it was not barred, his critical finding on that issue being that he was not satisfied that the defendant had been in adverse possession. By reason of delay and the conduct of the plaintiffs in impliedly allowing the defendant to deal with the land as he thought fit, the Judge refused to order an account, demolition or damages; but he did make an order for possession in favour of the plaintiffs - a form of relief which their Counsel had asked for in final submissions only.

Both sides appealed to the Court of Appeal, where the case was heard by Sir Geoffrey Briggs P., Leonard and Kempster JJ, sitting as Commissioners. In a judgment delivered on 21 May 1983, in which the other members of the Court concurred, Kempster J held that adverse possession had been admitted in the pleadings and that there had been no issue arising at the trial on that score. He went on to conclude that the effect of the 1962 Enactment was to extinguish the titles of the plaintiffs. The defendant's appeal was accordingly allowed and relief was granted on the counterclaim by declarations and by orders under s. 29 of the Land Code 1909 (1951 Revised Edition of the Laws of Brunei, Cap. 40) that the Land Register be rectified by registering the name of the defendant in place of those of the plaintiffs as the owner of undivided shares totalling 50/128ths of the land in the title. From that decision the plaintiffs appeal to Her Majesty in Council.

The land, EDR 218, lot 347, Land District of Brunei, comprises about 9/10ths of an acre. It is in a downtown area and although formerly worth little is now described as prime land, a government valuation officer estimating its value as between $400,000 and $500,000.

The History of the Titles

Title to land in Brunei is governed by the Land Code of 1909, which replaced the original Land Code of 1907. The history of the registered title to the land in question begins with an application made in 1911 and resulting in the grant in 1913 of a title in perpetuity to Mohammed Tahir bin Damit, subject to a special condition as to sharing coconut crops. On 6 August 1915 two transfers were registered. The first was of the whole land to Pengarah Rahman bin Kahar, the defendant's father; the second was of a half-share from the latter to another person. The half-share was transferred back to the defendant's father by transfer registered in 1921. But in 1924 he again transferred an undivided half-share, on this occasion to Nuralli bin Hassan, and it is from this half-share that the plaintiffs derive their interests.

The defendant's father has remained shown throughout as the registered owner of the other half-share, although the trial Judge records that it is believed that he died over 50 years ago. The persons entitled to his estate are the defendant and the latter's two brothers. According to the defendant's evidence in cross-examination at the trial they have not taken steps to have their names entered on the title as "All three of us always say do it later". The defendant is