Gopal Sri Ram JCA

The appellant before us (defendant in the court below) had his defence and counterclaim struck out. He complains that his is an arguable case and hence he ought not to have been driven away from the judgment seat.

The relevant facts have been admirably summarised by the learned judge and I gratefully quote from her:

The plaintiffs and defendant are brothers. The plaintiffs are registered co-owners of the land which was transferred to them by their father Wong Hong. The land includes a 4 storey building, where their father used to occupy the ground floor. The defendant was invited to join the father then doing business under the style and name Hong Kee Trading. The defendant has remained in occupation of the said land till now. The plaintiffs being registered owners have demanded delivery of vacant possession by a letter dated 31 July 2004. The defendant refused to deliver vacant possession and hence the plaintiffs filed this legal action.

She went on to accurately summarise the case before her as follows:

[12] The thrust of the plaintiffs’ application was based on the fact that the plaintiffs are both registered co-owners whilst the defendant has been in occupation of the property originally as licensee which has been terminated by the plaintiffs.

[13] Premised on the Torrens system concept of indefeasibility of title the right of the defendant if any would be the exception to s 340(2) of the National Land Code 1965. As provided in that section registered title can only be defeated on grounds of fraud, misrepresentation, forgery or by authority of law.

[14] The defendant in the statement of defence raised the defences of; fraud, a promise by his mother to give a portion of the property due to some payment made by him as directed by the parent, that he is a licensee coupled with equity and having an irrevocable licence. Pursuant to that defence the defendant in his prayer in the counterclaim claims to own 1/4 of the land, and that he be registered as a co-owner with 1/4 share.

[15] The defendant alleged that the transfer to the plaintiffs by their father was by way of fraud, but no particulars were pleaded in the statement of defence or the counterclaim, it is trite law that particulars of fraud must not only be pleaded, but must be specifically pleaded. In the High Court case of Malayan Banking Bhd v Lim Tee Yong Lee Kim Luang v Lee Shiah Yee Associated Leisure Ltd & Ors v Associated Newspapers Ltd

[16] In his submission Mr Lee suggested that though particulars of fraud are not specified, it can be done later by way of amendment. This is because the defendant is still in the process of investigating the matter. That being the case, it is clear that the plea of fraud in the statement of defence as well as in the counterclaim of the defendant is a mere speculation. As such, it is even clearer that the defendant has no defence but hoping to find something to establish fraud. In any event, fraud or forgery is not a matter barred by statute of limitation the defendant can take his time with his investigation. However, it would not be fair for the plaintiffs to be made to wait for the completion of the investigation by the defendant before they can exercise their rights and benefits as registered land owners.

[17] Besides the general allegation of fraud the defendant raised issues of payment that had been allegedly made as directed by their mother resulting in a promise of 1/4 shares to the defendant. At the same time the defendant admitted that the property was transferred to the plaintiffs by their father. The defendant also alleged that the transfer was done without the knowledge of the defendant. The defendant further alleged that the transfer to the plaintiffs was done under mysterious situation. All these defences pleaded are not defences that can create exception to the title of the plaintiffs under s 340 of the NLC. As such I do not see the need to dwell further into any of them.

In my judgment the learned judge was