Joshua Steven v Joshua Deborah Steven and Others

• Jurisdiction: Singapore
• Judge: Tan Lee Meng J
• Judgment Date: 16 August 2004
• Neutral Citation: [2004] SGHC 166
• Docket Number: Originating Summons No 1403 of
• Date: 16 August 2004
• Year: 2004
• Published date: 26 August 2004
• Plaintiff Counsel: James Ponniah (Wong and Lim)
• Citation: [2004] SGHC 166
• Defendant Counsel: Daniel John (John Tan and Chan),Third and fourth defendants in person
• Court: High Court (Singapore)
• Subject Matter: Civil Procedure,Certainty of intention,Certainty of subject matter,Whether all three certainties present for creation of alleged trust,Express trusts,Whether leave to amend pleadings should be granted after conclusion of trial,Certainty of objects of trust,Amendment,Trusts,Pleadings,Certainties

16 August 2004 Judgment reserved.

Tan Lee Meng J:

1 The plaintiff, Mr Steven Joshua (“SJ”), one of five registered owners of 577A Sembawang Place, sought an order for the sale of the said property and for the distribution of the net sale proceeds to all the co-owners. He also sought an order that the fifth to tenth defendants vacate the premises and pay damages for ignoring his notice in February 2003 to do so. Two of the property’s co-owners, SJ’s brother-in-law and sister, Mr Isaac Benjamin and Mdm Rebekah Issac (together “Mr and Mrs Benjamin”) who are the third and fourth defendants respectively, supported his position. However, the remaining two co‑owners, namely SJ’s former wife, Mrs Deborah Steven Joshua (“Mdm Joshua”), who is the first defendant, and SJ’s sister, Mdm Rachel Jacob (“Mdm Jacob”), who is the second defendant, opposed the application for the sale of the property on the ground that it is trust property that is intended to accommodate, among others, the fifth to tenth defendants. The fifth to tenth defendants filed a counterclaim with respect to their right to remain on the property by virtue of the alleged trust.

Background

2 The background of the present dispute, shorn of details, is as follows. In 1981, SJ acquired 29 Fulton Road while his brother, Mr John Abraham (“JA”), a lawyer, acquired 46 Fulton Road. SJ did not move into 29 Fulton Road, which was occupied by JA, who rented out 46 Fulton Road and shared the rent with SJ.

3 In 1984, JA’s wife left him and his three children. To help JA look after his family, SJ and his then wife (Mdm Joshua) moved into 29 Fulton Road. At that time, 46 Fulton Road was vacant and JA invited the fifth defendant, Mrs Anne Joseph Aaron (“Mrs Aaron”), and her family to stay there rent-free to help him look after his children. In due course, more people moved into the two Fulton Road houses owned by SJ and JA. In August 1985, Mrs Aaron’s sister, Mdm Grace George, moved into 46 Fulton Road. In September 1985, Mdm Jacob and her daughter joined SJ and JA at 29 Fulton Road. Mr and Mrs Benjamin also claimed to have moved to 29 Fulton Road in late 1985 but this was denied by some of the other defendants.

4 Apparently, the occupants of the two Fulton properties owned by SJ and JA enjoyed living together. The working members of the group decided to contribute their earnings to maintain the families living there. Mrs Aaron managed the group’s finances together with Mdm Joshua.

5 In 1986, SJ and JA sold their Fulton Road properties. In early 1987, SJ and the first to fourth defendants completed the purchase of 577A Sembawang Place, which was bought for $700,000. A very large portion of the purchase price was paid with funds withdrawn from the Central Provident Fund (“CPF”) accounts of the five registered owners. A loan of $200,000 was obtained from OCBC Finance (Singapore) Limited (“OCBC Finance”) to facilitate the purchase of the property. The instalment payments with respect to the housing loan were partially paid with monthly withdrawals from the CPF accounts of some of the registered owners of the property.

6 At the same time, JA and Mrs Aaron’s sister, Mdm Grace George, completed the purchase of an adjoining property, 577 Sembawang Place, which was also bought for $700,000.

7 The families who were residing at 29 and 46 Fulton Road moved into 577 and 577A Sembawang Place. The group, which called itself the “House of Israel” (“HOI”), had its ups and downs and this is not the first law suit regarding the ownership of 577 and 577A Sembawang Place. In the first suit, Originating Summons No 290 of 1991, Mdm Grace George, one of the two registered owners of 577 Sembawang Road, sought an order for the sale of that property and for the distribution of the sale proceeds. That suit was settled after JA, the other registered owner, agreed to pay Mdm Grace George $80,000 in full and final settlement of her claim.

8 In September 1993, the third and fourth defendants, Mr and Mrs Benjamin, who are two of the five registered owners of 577A Sembawang Place, left the group. In 1996, they instituted Originating Summons No 729 of 1996 to obtain an order for the sale of that property. The fifth to tenth defendants did not intervene in that action to claim a stake in the property. This suit was settled after all the registered owners agreed that Mr and Mrs Benjamin had a 20% share of 577A Sembawang Place.

9 Apart from property disputes, the HOI was involved in other legal proceedings. For instance, in 1989, the fifth and sixth defendants and JA instituted Suit No 999 of 1989 to recover damages for defamation from, among others, The Straits Times Press (1975) Limited, after the HOI was described by The Straits Times as a sect. This suit was dismissed by the High Court and an appeal to the Court of Appeal was unsuccessful.

10 In July 2002, SJ left the group. Shortly thereafter, he instituted the present action. While SJ’s application for the sale of 577A Sembawang Place was supported by Mr and Mrs Benjamin who wanted 20% of the net proceeds of sale, it was opposed by the two other registered owners of the property, and by six other members of the HOI, who intervened in these proceedings. By an order of court dated 20 February 2003, the six persons who intervened in this action were named as the fifth to tenth defendants in the action. It was further ordered that the proceedings continue as if they had been commenced by a writ of summons. In their counterclaim, the fifth to tenth defendants sought a declaration that SJ and the other four registered owners of the property hold 80% of 577A Sembawang Place in trust for themselves as well as the fifth to tenth defendants in equal shares. For convenience, the first, second and fifth to tenth defendants, who all oppose SJ’s application, will be referred to as the “HOI defendants” in the rest of this judgment.

Whether the fifth to tenth defendants have a beneficial interest

11 Whether the fifth to tenth defendants have a beneficial interest in 577A Sembawang Place will first be considered. Their case, as pleaded and canvassed throughout the trial, was that their rights rested on an alleged trust in relation to both 577 and 577A Sembawang Place and that this alleged trust may be traced to a covenant made in 1985 at Fulton Road. The fifth defendant, Mrs Aaron, the acknowledged leader of the group, explained the position in para 7 of her affidavit of evidence-in-chief in the following terms:

My husband and I, together with the 1^st and 2^nd defendants and the 7^th to 10^th defendants say that we all have an equal beneficial interest in an undivided 80% share of the property together with the plaintiff by virtue of a solemn covenant that all of us had entered into when the property had been purchased. Under this covenant, the property though bought in the name of 5 people … was for the purpose of housing the plaintiff and all 10 defendants as well as all the members of our respective families comfortably for generations to come and not for investment or enrichment.

12 In Knight v Knight (1840) 3 Beav 148; 49 ER 58, Lord Langdale explained (at 173) that three certainties are required for the creation of a trust. These are certainty of intention, certainty of the subject matter of the trust and certainty of the objects of the trust. In the present case, none of the three certainties were established. For a start, during the trial, Mrs Aaron contradicted her affidavit of evidence-in-chief and totally shifted her position by testifying that the covenant that was made at Fulton Road in 1985, which she termed a “property covenant”, was intended to benefit only those who were living at 29 and 46 Fulton Road properties in 1985. By doing so, she destroyed the foundation of the claim to a share of the property by the eighth and ninth defendants, Mrs Lydia Samuel Abraham and Mr Aquila Moses, as both of them were not living at 29 or 46 Fulton Road when the property covenant was made in 1985.

13 The first and second defendants readily agreed with Mrs Aaron’s new evidence on the scope of the alleged trust. However, both of them were really quite confused as they were unable to comprehend, when cross-examined, that if they supported Mrs Aaron’s new version of the trust, Mrs Lydia Samuel Abraham and Mr Aquila Moses were outside the ambit of the alleged trust.

14 The sixth defendant, Mr Joseph Aaron, took a diametrically different position from his wife (Mrs Aaron) as he testified that anyone who came to live at 577A Sembawang Place after the property covenant was made was entitled to a share of the property.

15 The seventh defendant, Mr Samuel Abraham,...