Bank of America National Trust & Savings Association v Djoni Widjaja

• Judge: Karthigesu JA
• Judgment Date: 30 June 1994
• Neutral Citation: [1994] SGCA 89
• Citation: [1994] SGCA 89
• Defendant Counsel: Lim Chung Wei (Boey, Ng & Wan)
• Published date: 19 September 2003
• Plaintiff Counsel: K Shanmugam and Maria Ho (Allen & Gledhill)
• Date: 30 June 1994
• Docket Number: Civil Appeal No 83 of 1993
• Court: Court of Appeal (Singapore)
• Subject Matter: Relevant principles governing grant of injunction,Application to restrain party from instituting proceedings abroad,Whether application vexatious and oppressive,Civil Procedure

The facts

The appellants are a bank carrying on business in Singapore and elsewhere. The respondent was at the material time a customer of the appellants and is a resident in Indonesia.

On or about 17 September 1987, the respondent placed with the appellants a sum of US$3,427,562.81 on deposit for a period of one year and it matured on 19 September 1988. The respondent claimed that on maturity the appellants failed to pay him the sum together with accrued interest amounting to US$289,057.80. Accordingly, on 20 October 1988, the respondent instituted proceedings against the appellants in Suit No 2132 of 1988 in the High Court claiming a total sum of US$3,716,620.61 being the principal and accrued interest as at the date of maturity and claiming further interest as from 20 September 1988 until payment.

Soon thereafter, the respondent applied for summary judgment against the appellants. The application was resisted. In the affidavits filed on their behalf, the appellants admitted that the respondent had placed the sum of US$3,427,562.81 with them in a time deposit account but alleged that the respondent had, sometime on or about 7 March 1988, instructed the appellants` branch in Jakarta, Indonesia, to terminate his account and remit a sum of US$2,200,000 to the account of one Ongky Widjaja and place the balance in a time deposit account. The instructions were given by a letter dated 7 March 1988 and handed to one Mrs Farina Kartasasmita, an officer of the appellants` branch in Jakarta, on or about 7 March 1988. The appellants duly carried out the instructions and placed the balance sum of US$1,362,665.91 on deposit for one year in the name of the respondent maturing on 7 March 1989. No particulars of the account of Ongky Widjaja were provided as the appellants stated that they were precluded from divulging any such information under s 47 of the Banking Act (Cap 19).

The respondent, in the affidavits filed on his behalf by his solicitors, denied that he had ever given any such instructions to the appellants. He denied any knowledge of Ongky Widjaja. The respondent also relied on a police report issued by the Indonesian authority stating in effect that the signatures on the letter of instruction dated 7 March 1988 and the deposit withdrawal form authorizing the withdrawal of US$2,200,000 were `different from` and `not identical with` the genuine signature of the respondent. The respondent, therefore, alleged that the signatures on the letter and withdrawal form had been forged.

The application was heard on 13 March 1989. The assistant registrar gave unconditional leave to the appellants to defend the action. The respondent appealed to a judge-in-chambers. The appeal was heard and was dismissed on 7 August 1990. The appellants, accordingly, filed their defence on 15 October 1990. On 30 January 1991, the respondent`s solicitors requested for further and better particulars of the defence filed by the appellants. On 2 March 1991, the appellants filed the further and better particulars as requested. A reply was subsequently filed on 29 April 1991 by the respondent.

More than a year later, on 20 July 1992, the respondent applied under O 39 r 2 of the Rules of Supreme Court (`RSC`) for an order to record the evidence of three witnesses in Indonesia, namely, Mr Robin Aritonang (`Aritonang`), Dr IKP Suyasa (`Suyasa`) and Mrs Farina Kartasasmita (`Kartasasmita`). Based on a police report issued by the Indonesian authority, the respondent alleged that Aritonang was, in fact, the same person as the said Ongky Widjaja. The respondent contended that Aritonang would be a material witness in determining whether there had been a scheme to defraud the respondent. However, Aritonang was at the material time serving his sentence of imprisonment in Indonesia and thus was unable to leave the country to testify in Singapore. Suyasa, on the other hand, was the member of the Directorate of Investigation who reported that the signatures on the letter of instruction and withdrawal form were different from or not identical with the genuine signature of the respondent. As regards Kartasasmita, she was a material witness as she allegedly was the one who received the instructions from the respondent. However (so the respondent alleged), she repeatedly ignored the respondent`s solicitors` letters enquiring whether she would be willing to attend trial in Singapore. The application made by the respondent was opposed by the appellants and was dismissed on 3 September 1992. An appeal against that dismissal was filed by the respondent. A further affidavit was filed on behalf of the respondent on 21 September 1992, exhibiting a letter from his Indonesian lawyers which stated that Aritonang had been released from prison on 18 January 1992 but both he and Suyasa could not attend trial in Singapore `for unclear reasons`. On 3 November 1992, the respondent withdrew his appeal.

Almost three weeks later, on 20 November 1992, the respondent made an application to have the action set down for trial as the time for setting down had long expired, and the application was granted on 13 January 1993. Barely a month later, however, the respondent filed an application, on 15 February 1992, for leave to discontinue the proceedings in Suit No 2132 of 1988. In the affidavit filed by his solicitor in support, it was stated that the respondent would be taking fresh proceedings in Indonesia in view of the fact that most of the relevant documentary evidence and witnesses were located there and that the matter could be adjudicated `in a more comprehensive manner` there. The affidavit also referred to the unsuccessful application made for depositions of the three witnesses to be taken in Indonesia and further stated that it was his solicitors` advice that he should have the matter adjudicated in Indonesia rather than in Singapore so that `the full weight of evidence can be made available for the court`s decision there`. The application was adjourned and, as of this date, is still pending. In the meanwhile, on or about 15 April 1993, the respondent commenced an action in Indonesia in relation to the same subject matter, and an unspecified hearing was scheduled in an Indonesian court for 28 June 1993.

On 16 June 1993, the appellants applied for an injunction restraining the respondent from commencing, or continuing the prosecution of, any proceedings in Indonesia in relation to the same subject matter. In support of the application, the appellants filed an affidavit deposed to by one of their officers, Tan Seng Tin. The deponent stated, among other things, that the respondent had already commenced proceedings against the appellants in Indonesia on or about 15 April 1993, that the subject matter of those proceedings were the same as that before the High Court in Suit No 2132 of 1988 and that some unspecified hearing was scheduled for 28 June 1993. The deponent then set out three grounds for the injunction; first, the Singapore court is the forum conveniens; second, the Indonesian proceedings are vexatious; and, third, that it would be unconscionable to allow the respondent to prosecute the Indonesian proceedings.

The application

The appellants` application was heard before Kan Ting Chiu JC on 23 June 1993. At the commencement of the hearing, counsel for the respondent applied for an adjournment as he had not been able to receive any instruction from his client. In view of the pending hearing in Indonesia, the learned judicial commissioner decided to proceed with the hearing. After hearing counsel for the appellants, the learned judicial commissioner adjourned the hearing to enable counsel for the respondent to obtain his client`s instructions. When the hearing resumed on 25 June 1993, counsel was still unable to obtain any instruction from the respondent. Nevertheless, he made his submissions. At the conclusion of the hearing, the learned judicial commissioner dismissed the application. Against his decision, this appeal was brought. [See Djoni Widjaja v Bank of America National Trust & Savings Association [1993] 3 SLR 678 .] Before us, no case was filed on behalf of the respondent and counsel for the respondent informed us that he had had no instruction from the respondent to argue before us, and, accordingly, no argument against the appeal was addressed to us on behalf of the respondent. We heard the arguments advanced on...