Fauziyah bte Mohd Ahbidin (executrix of the estate of Mohamed Ahbideen bin Mohamed Kassim (alias Ahna Mohamed Zainal Abidin bin Kassim), deceased) v Singapore Land Authority and others

• Jurisdiction: Singapore
• Judge: Audrey Lim J
• Judgment Date: 17 June 2020
• Neutral Citation: [2020] SGHC 123
• Court: High Court (Singapore)
• Docket Number: Suit No 152 of 2019 (Registrar’s Appeal Nos 6 and 7 of 2020 and Summons No 1890 of 2020)
• Published date: 25 June 2020
• Year: 2020
• Hearing Date: 11 June 2020
• Plaintiff Counsel: Suang Wijaya and Johannes Hadi (M/s Eugene Thuraisingam LLP)
• Defendant Counsel: Khoo Boo Jin, Tang Shangjun, Lee Hui Min, and Jessie Lim (Attorney-General's Chambers)
• Subject Matter: Civil Procedure,Striking out,Appeal,Adducing fresh evidence,Land,Compulsory acquisition,Interest in land,State land,Muslim Law,Charitable trusts
• Citation: [2020] SGHC 123

Audrey Lim J: Introduction

The Defendants had applied to strike out the Plaintiff’s Statement of Claim in this Suit (“Suit 152”), on the grounds that it disclosed no reasonable cause of action; is scandalous, frivolous or vexatious; or is otherwise an abuse of the process of the court. The assistant registrar (“AR”) struck out the claim on the basis that it was unsustainable. The Plaintiff appealed against the decision in its entirety (“RA 6”) and the Defendants appealed against the decision not to strike out the Plaintiff’s claims on the other grounds that they relied on (“RA 7”). I will refer to RAs 6 and 7 collectively as “the RAs”.

Background

The Plaintiff, Fauziyah binte Mohd Ahbidin, is the only child of one Zainal and sole executrix of his estate (“Zainal’s Estate”). Zainal is the only child of one Kassim. The Defendants are the Singapore Land Authority (“SLA”), Collector of Land Revenue (“Collector”) and Attorney-General respectively.

The dispute concerns the compulsory acquisition of four plots of land (“the Land”).

The 1920 and 1921 Deeds and wakaf

Kassim acquired the fee simple in the Land in 1919. In January 1920, Kassim, Oona Said, Pana Shaik and Ibrahim entered into an Indenture of Deed (“1920 Deed”) which provided for the following: Kassim, Oona Said and Pana Shaik held the Land as tenants-in-common in the ratio of 21:3:2 respectively. Kassim, Oona Said and Pana Shaik conveyed the Land to Kassim and Ibrahim as joint tenants, “to be held by them upon trust for the purposes of a public burial ground for Mohamedans only”. Kassim and Ibrahim and their survivors (the trustees) are to manage or superintend the management of the Land “upon trust” and for it “to be appropriated and used by the general public of the Mohamedan community in Singapore as a public burial ground for Mohamedans under the name of Bukit Wakaff Siglap, according and subject to such rules and regulations as may from time to time be prescribed by [them]”.

On 30 April 1921, Kassim, Oona Said, Pana Shaik and Ibrahim entered into another Deed of Settlement (“1921 Deed”) which stated that the Land “shall be a charitable property according to the custom or usage of Tanah Wakaf”. The effect of the 1920 Deed and 1921 Deed (“the Deeds”) was to establish a wakaf under Syariah law.

The 1932 Will

Around 9 December 1932, Kassim allegedly made a will (“1932 Will”) setting out his intention to benefit his descendants under the wakaf over, inter alia, the Land. In particular, the 1932 Will directed for the following to be done: Divide the nett income of the endowment (including the Land) into five shares, two shares to be given to Kassim, and house No. 76 Changi Road which Kassim and his descendants shall occupy rent free. If Kassim dies, his share shall devolve to Zainal. The other three shares shall go towards the payment of wages of the employees of the mosque, burial ground and school and towards the costs of repairing the endowed properties.

Kassim’s death in 1935

The Plaintiff pleaded in a proposed amendment to the Statement of Claim (“Proposed SOC”) (see further at [14] below) that under Muslim law or the Hanafi school of Muslim law (“Hanafi school”), Kassim did not lose his beneficial interest in the Land by the Deeds, and any testamentary wakaf created (eg, by the 1932 Will) was effective over only one-third of the Land. Hence Kassim and Ibrahim continued to hold two-thirds of the Land as joint tenants.

The Plaintiff also pleaded that, as Ibrahim predeceased Kassim, Kassim held the sole interest in two-thirds or the whole of the Land. Kassim died in 1935 and was survived by his wife, Mymon, and Zainal. In 1936, Mymon and Kassim’s father-in-law applied for a grant of letters of administration on Kassim’s estate with the 1932 Will annexed. There was no evidence that the grant was obtained. However, Zainal was allegedly unaware of the 1932 Will then, so he applied for and obtained a grant of letters of administration to Kassim’s estate on 1 October 1962 (“1962 Grant of LA”).

Subsequent vesting of the Land and compulsory acquisition

In April 1959, Zainal obtained an order of court in OS 33/1959 (“1959 Order”) for, inter alia, the Land to vest in four individuals, including Zainal, as trustees for the same (“the 1959 Order trustees”).

In 1962, pursuant to an order (“1962 Order”) made under s 4 of the Muslim and Hindu Endowments Ordinance (Cap 271, 1955 Ed) (“MHE Ordinance”), the Land was vested in the Muslim and Hindu Endowments Board (“MHEB”). The 1962 Order was published in the Government Gazette and duly registered in the Registry of Deeds. In 1968, the Land was vested in the Majlis Ugama Islam Singapura (“MUIS”) by operation of s 6 of the Administration of Muslim Law Act 1966.

Around 27 November 1987, a notification was published in the Gazette that the Land, at that time a Muslim cemetery, was required for “general development” pursuant to s 5 of the Land Acquisition Act (Cap 152, 1985 Rev Ed) (“LAA”) (“the Acquisition”). The State took possession of the Land on 16 February 1989, but no development of the Land has commenced.

Grant of probate for Zainal’s Estate in 2014 and subsequent events

Mymon passed away in 1945. Zainal passed away on 29 April 2011 and, according to the Plaintiff, left his share of the inheritance of Kassim’s estate to her. The Plaintiff extracted grant of probate on 30 May 2014 and claimed to have subsequently discovered around 2016 that legal title to the Land had become registered in the State.

On 30 May 2018, the Plaintiff wrote to SLA alleging that the Land was “Ancestral Land (of [Zainal] and for his immediate family rights) and must be returned unconditionally”. In June 2018, at a meeting with the National Environment Agency, the Plaintiff reiterated her claim and stated that no notice of Acquisition had been given to her family. The Plaintiff subsequently wrote to SLA essentially to reiterate the same and demanded that SLA take steps to restore the Land to the Plaintiff. SLA replied in January 2019 to state that there was no basis for the Plaintiff’s allegations.

Suit 152

On 1 February 2019, the Plaintiff commenced Suit 152. I set out the crux of her case, based on the Proposed SOC. The Defendants’ counsel, Mr Khoo, agreed to the court dealing with the matter having regard to the Proposed SOC, to save time and costs, and that he would make his arguments in the RAs on that basis and to persuade the court that leave to amend the Proposed SOC should nevertheless be refused.

The Plaintiff pleaded that Kassim was a Muslim born in India and/or a Muslim of Indian descent. Under Muslim law or the Hanafi school, the donor of a wakaf retains the beneficial interest in the property that is the subject of the wakaf and thus Kassim did not lose his beneficial interest in the Land by the 1920 or 1921 wakaf. The beneficial interest is lost either when the court declares the wakaf as irrevocable or by the creation of a testamentary wakaf by will. Further, under Muslim law or the Hanafi school, a wakaf is revocable and was revoked by the 1932 Will. However, a testamentary wakaf is effective only over one-third of the testator’s properties at the time of his death. Thus, the wakaf purportedly created over the other two-thirds of the Land by the Deeds was invalid, and Kassim and Ibrahim continued to hold the Land as joint tenants.

The Plaintiff pleaded that the 1962 Order was ineffective or ultra vires in respect of the whole or two-thirds of the Land as this was not an “endowment” within the MHE Ordinance and title in the Land did not vest in the MHEB. Further, the 1962 Order was made in breach of the rules of natural justice as the 1959 Order trustees, Kassim’s descendants and the administrators of Kassim’s estate did not have the opportunity to be heard prior to the Order being made and were not notified that the Order had been made. In addition, the MHEB no longer existed when notice of the Acquisition was served on it. Notice of the Acquisition was not, pursuant to s 8 of the LAA, served on MUIS, the 1959 Order trustees, Kassim’s descendants or Zainal. None of Kassim’s descendants were aware of the Acquisition until 2016. Prior to January 2019, the State did not notify Kassim’s descendants that the Land constituted State land.

As Kassim’s estate is interested in two-thirds of the Land and no valid notice had been given to the estate in accordance with the LAA, the Acquisition was invalid. Moreover, no compensation for the Acquisition has been paid to any of Kassim’s descendants. The Plaintiff thus sought a declaration that the Acquisition was defective and void (“Acquisition Challenge Claim”) and that title to the Land should be vested in Zainal’s Estate (“Title Claim”).

Hearing below

Before the AR, the Plaintiff’s then counsel (Mr Koh) stated that the Plaintiff would withdraw the Acquisition Challenge Claim as it should be dealt with by way of judicial review. Mr Koh confirmed that the Plaintiff would not object to striking out parts of the Statement of Claim (“SOC”) insofar as they related to the Acquisition Challenge Claim, and the arguments proceeded on the basis of the Title Claim.

Mr Koh submitted that the Plaintiff belonged to the Hanafi school and “[a]ll the past cases appear to have been considered in the Singapore courts in light of the Shafi’i school of thought, not the Hanafi school of thought”. The argument that Kassim retained two-thirds of the interest in the Land, based on the Hanafi school, was only subsequently pleaded in the Proposed SOC. Further, Mr Koh submitted that the Plaintiff’s claim was not time-barred as there was no laches or acquiescence as Zainal did not have sufficient knowledge when he applied for the 1959 Order.

The AR struck out Suit 152 in its entirety. In particular, the Title Claim was plainly and obviously unsustainable. The AR found “clear and compelling historical evidence” that...