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

• Judge: Colin Seow AR
• Judgment Date: 18 December 2019
• Neutral Citation: [2019] SGHCR 12
• Citation: [2019] SGHCR 12
• Court: High Court (Singapore)
• Published date: 21 December 2019
• Docket Number: Suit No 152 of 2019 (Summons No 3427 of 2019)
• Plaintiff Counsel: Koh Li Qun Kelvin, Niklas Wong See Keat and Thara Rubini Gopalan (TSMP Law Corporation)
• Defendant Counsel: Khoo Boo Jin, Tang Shangjun, Szetoh Khai Hoe Terence and Jessie Lim (Attorney-General's Chambers)
• Subject Matter: Civil Procedure,Striking Out
• Hearing Date: 20 September 2019

Colin Seow AR: Introduction

Summons No 3427 of 2019 (the “Application”) is an application taken out by the defendants seeking, inter alia, the striking out of the plaintiff’s Endorsement of Claim in the Writ of Summons (“Endorsement of Claim”) and the Statement of Claim, in High Court Suit No 152 of 2019 (the “Action”), pursuant to Order 18 Rule 19(1) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“Rules of Court”) and/or the inherent jurisdiction of the court.

The hearing of the Application took place for a full day on 20 September 2019, at the end of which judgment was reserved. The Court now issues its judgment on the Application.

Background

The plaintiff is the sole executrix of her late father Mr Mohamed Ahbideen bin Mohamed Kassim (alias Ahna Mohamed Zainal Abidin bin Kassim) (“Zainal”), who deceased in 2011. Zainal, the only child of the plaintiff’s late grandfather Mr Ahna Mohamed Kassim bin Ally Mohamed (“Kassim”), was a beneficiary and the administrator of Kassim’s estate under a grant of letter of administration dated 1 October 1962. Kassim deceased in 1935.

The first, second and third defendants are the Singapore Land Authority, Collector of Land Revenue and Attorney-General of the Republic of Singapore respectively.

The dispute between the plaintiff and the defendants concerns four plots of land situated in Siglap (the “Siglap Land”), presently a Muslim burial ground: Land Lot MK 27-99949T (formerly designated as MK 27 Lot 3-1); Land Lot MK 27-99948P (formerly designated as MK 27 Lot 3-2); Land Lot MK 27-99944C (formerly designated as MK 27 Lot 3-6); and Land Lot MK 27-99943L (formerly designated as MK 27 Lot 3-7).

The Siglap Land, which the plaintiff claims to be “ancestral” land owned by Kassim since 1919 and soon thereafter established as a perpetual wakaf under Syariah law, was a subject of the following events over the years: The making of an order on 25 April 1962 by the then Minister for Law and Health pursuant to section 4 of the now repealed Muslim and Hindu Endowments Ordinance (the “MHE Ordinance”), whereby inter alia the Siglap Land was to vest in the Muslim and Hindu Endowments Board. The enactment of the Administration of Muslim Law Act (Act 27 of 1966) (the “AMLA”), wherein section 6(2) provided that:

All property, movable or immovable, which was, immediately before 1st July 1968, vested in the Board established under the [MHE Ordinance] for purposes relating to the Muslim religion or on trust for religious or charitable purposes for the benefit of persons professing the Muslim religion shall, on 1st July 1968, without any conveyance, assignment or transfer whatever, vest in the Majlis for the like title, estate or interest and in the like tenure and for the like purposes as the same was vested or held immediately before 1st July 1968.

The publication of a declaration under section 5 of the Land Acquisition Act (Cap 152, 1985 Rev Ed) in the 27 November 1987 Government Gazette Extraordinary, wherein it was declared that the Siglap Land is “needed for a public purpose, viz.: General Development”. The making of entries, on behalf of the State, in the Index of Lands at the Registry of Land Titles and Deeds on 21 February 1989, indicating that the Siglap Land had vested in the State.

The plaintiff’s claims in the Action are basically framed as follows: that the State’s “purported” compulsory acquisition of the Siglap Land was defective and void (the “Land Acquisition Challenge Claim”); and that title to the Siglap Land is vested in the estate of Zainal (the “Title Claim”).

The Application

At the hearing of the Application, counsel for the plaintiff indicated that the plaintiff wished to withdraw the parts of the Action that relate to the Land Acquisition Challenge Claim. In this regard, counsel explained that: in the light of a recent case decision in Ahmad Kasim bin Adam (suing as an administrator of the estate of Adam bin Haji Anwar and in his own personal capacity) v Moona Esmail Tamby Merican s/o Mohamed Ganse and others [2019] 1 SLR 1185, the plaintiff has formed the view that the Land Acquisition Challenge Claim should be dealt with by way of a judicial review proceedings instead; and the Land Acquisition Challenge Claim is, in the plaintiff’s opinion, dependent on the prior question of whether there is any merit in the Title Claim – a question which should remain to be determined in the Action.

As a result, the substantive oral arguments at the hearing revolved largely around the question of whether the Title Claim ought to be struck out under Order 18 Rule 19(1) and/or the inherent jurisdiction of the court.

The defendants’ case for striking out

Insofar as the Title Claim is concerned, the main thrusts of the defendants’ case for striking out are as follows: the plaintiff’s Endorsement of Claim and Statement of Claim (i) fail to disclose a reasonable cause of action, and/or (ii) are scandalous, frivolous, vexatious and/or an abuse of the process of the court; and the Action is time-barred under the doctrine of laches and acquiescence, pursuant to the court’s equitable jurisdiction as statutorily preserved under section 32 of the Limitation Act (Cap 163, 1996 Rev Ed) (the “Limitation Act”).

In support of [10(a)] above, much of the arguments focussed on the circumstances in which a perpetual wakaf under Syariah law was established in respect of the Siglap Land, shortly after Kassim acquired an interest in fee simple therein in 1919. In the Statement of Claim, the plaintiff alleges that on 19 January 1920, Kassim and three other persons (who shall hereinafter be individually referred to as “Oona Said”, “Pana Shaik” and “Ibrahim”) entered into an Indenture of Deed (the “1920 Deed”), whereunder: Kassim, Oona Said and Pana Shaik became tenants-in-common holding shares in the ratio of 21:3:2 respectively in the Siglap Land; Kassim, Oona Said and Pana Shaik conveyed the Siglap Land to Kassim and Ibrahim as joint tenants; and Kassim and Ibrahim were to manage or superintend the management of the Siglap Land “upon trust”, and permit the Siglap Land to be “appropriated and used by the general public of the Mohamaden community in Singapore as a public burial ground for Mohamedans under the name of Bukit Wakaff Siglap, according to such rule and regulation as may from time to time be prescribed by them”. The plaintiff further alleges in the Statement of Claim that on 30 April 1921, a Deed of Settlement expressed to be supplemental to the 1920 Deed (the “1921 Deed”) was entered into between Kassim and the same three persons (ie, Oona Said, Pana Shaik and Ibrahim), wherein it was stated that the Siglap Land “shall be a charitable property according to the custom or usage of Tanah Wakaf”.

Counsel for the defendants submitted inter alia that by the plaintiff’s own account in the Statement of Claim, Kassim would not have retained any beneficial interest in the Siglap Land after both the 1920 Deed and 1921 Deed were executed, as the terms of those Deeds did not reserve any beneficial interest in the same to be vested in Kassim. In this regard, counsel highlighted inter alia section 2 of the AMLA and Majlis Ugama Islam Singapura v Saeed Salman and another [2016] 2 SLR 26 (at [34]), where a wakaf as understood under domestic law is “the permanent dedication by a Muslim of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable”, and a “foundation endowed in perpetuity”, which “[i]n the eye of the law, the property belongs to God, and as such, the dedication is both permanent and irrevocable”.

Counsel for the defendants further raised arguments addressing Zainal’s conduct in his lifetime and his legal position vis-à-vis the Siglap Land.

Notably, counsel also invited the Court to accept the defendants’ case that the Action is a “sham” and a “scam” perpetuated in bad faith by the plaintiff in the hope of seeking a monetary pay out from the Government.

The defendants’ submissions in respect of the alleged time bar under the doctrine of laches and acquiescence (see [10(b)] above) are as follows. The defendants contend that Zainal’s failure to raise any claims over the decades during his lifetime (be it in his personal capacity or in his capacity as administrator of Kassim’s estate) amounted to an approval or acquiescence not to pursue the claims that are now brought in the Action. The defendants further claim to be prejudiced, given that information and evidence (including Zainal’s testimony) that may be useful are now unavailable due to the delay, and that it is unconscionable for the plaintiff to seek to “contradict the positions taken by her grandfather and father since about 100 years ago, in order to bring this [Action] in 2019”.

For completeness, the defendants also raised two further (and alternative) grounds concerning time bar, namely: Time bar under section 9(1) of the Limitation Act, which provides that:

No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

Time bar under section 22(2) of the Limitation Act, which provides...