Kartika Ratna Thahir v PT Pertambangan Minyak dan Gas Bumi Negara (Pertamina)

• Jurisdiction: Singapore
• Judge: Karthigesu JA
• Judgment Date: 25 August 1994
• Neutral Citation: [1994] SGCA 105
• Citation: [1994] SGCA 105
• Defendant Counsel: David Hunt QC, Wong Meng Meng and Alvin Yeo (Wong Meng Meng & Pnrs)
• Published date: 19 September 2003
• Plaintiff Counsel: Bernard Eder QC, Michael Hwang and Francis Xavier (Allen & Gledhill)
• Date: 25 August 1994
• Docket Number: Civil Appeal No 204 of 1992
• Court: Court of Appeal (Singapore)
• Subject Matter: Claim governed by law of country where enrichment occurs,Conflict of Laws,Claim does not arise in connection with contract but on constructive fraud,Money had and received,Personal claim,Receipt of bribes by agent,Interpleader,Whether principal had proprietary claim to deposits in agent's account which were received as bribes,Choice of law,Restitution,Application,Constructive fraud,Nature of claim for,Claimant's claim to fund must be proprietary,Basis of claim,Complicity and knowledge of agent's wife rendering wife a constructive trustee as well,Principal's recovery of bribes,Trusts,Personal claim insufficient,Fiduciary relationship between agent and principal,Civil Procedure,Constructive trusts

Cur Adv Vult

This appeal arises from the decision of Lai Kew Chai J on an originating summons taken out by the Sumitomo Bank Ltd for interpleader reliefs in the face of competing claims to 19 separate and discrete deposits with the Asian Currency Unit (ACU) of the Singapore branch of the bank.

Facts

The relevant facts that gave rise to the proceedings below have been fully set out in the judgment of the learned judge, reported in [1993] 1 SLR 735 . For our purpose, we need only to rehearse them briefly as follows. The respondents (Pertamina), an Indonesian state enterprise, were created on 15 September 1971 by Law No 8 of 1971 of the Republic of Indonesia. They undertook major economic development projects at the direction of the Government of the Republic of Indonesia. One such undertaking was the gigantic development of a huge industrial complex for steel-making and related industries, which encompassed the redevelopment of the existing steel-making plant, in Cilegon, northwest of Java, Indonesia. On 31 August 1970, a company, PT Krakatau Steel (PTKS) was incorporated and its task was to build the infrastructure, comprising the harbour, water and power supply and a railway line to connect the harbour to the steel mill. PTKS was also responsible for the development of the steel plant. However, Pertamina were financially responsible for the infrastructure facilities. In fact, Pertamina virtually took over effective management and control of the construction of the infrastructure facilities in Cilegon as from about June 1973. In many cases, they contracted for the building of the infrastructure facilities. These facilities may be broadly described as follows: (i) a new power generation equipment which was to provide the vast quantity of electricity required for the new electric arc furnaces to produce the steel; (ii) an improved water supply system to provide water for the steel mills; and (iii) a new harbour and a new railway link for the import of raw materials required for the steel-making process and for the export of finished products. It was in relation to these facilities that two German contractors, Siemens AG (Siemens) and Klockner Industrie Analagen GmbH (Klockner), entered into the picture. Siemens contracted to provide the power generation equipment and Klockner and its related companies contracted to build and equip the water supply system.

Gen Haji Achmad Thahir (Gen Thahir) was employed by Pertamina and at the material time was the general assistant to the then president director of Pertamina, Gen Ibnu Sutowo (Gen Sutowo). Gen Thahir was appointed to the office with effect from 14 October 1968 and at all material times his total salary was about US$9,000 a year. He held that position until 23 July 1976 when he died. At the date of his death, there stood as having been deposited with the Singapore branch of the Sumitomo Bank Ltd (the bank) 17 separate and discrete ACU deposits denominated in deutschemarks, in the names of `Mr HA Thahir and/or Mrs KR Thahir`, amounting in aggregate to DM53,972,374.12. As at 23 July 1973, the maturity dates of these deposits ranged between a few days and over four months. In addition, there were two other separate and discrete ACU deposits, one time deposit maturing on 18 August 1976 and the other payable on demand, which were denominated in US dollars in the sums of US$593,249.31 and US$608,959.42 respectively; both these deposits were also in their joint names. Mrs KR Thahir is Mrs Kartika Ratna Thahir, the appellant in this appeal (the appellant).

The first deposit in the series was made on 25 May 1973, and, thereafter, by the end of May 1974, ten other deposits were made, all of them in the name of Gen Thahir. Subsequently, in early June 1974, Gen Thahir visited the Singapore branch of the bank and opened a joint fixed deposit account in the names of Gen Thahir and the appellant. The account was opened with a sum of DM2,273,478.46 which was deposited on 10 June 1974. By the end of 1975, the Singapore branch of the bank had a total of 19 deposits, all of which, with the exception of one, was in the sole name of Gen Thahir. Sometime in the later part of 1975, Gen Thahir visited the Singapore branch accompanied by the appellant. On this visit, Gen Thahir requested the bank to transfer all the deposits in his sole name to a joint fixed deposit account in the names of Gen Thahir and/or the appellant, and the transfer was effected by the bank on 19 January 1976. As we have related, about six months later, on 23 July 1976, he died.

Three days after the death of Gen Thahir, a claim was made at the Jakarta office of the bank by two sons of Gen Thahir by his earlier marriage that all the ACU deposits belonged to the estate of the deceased and the bank was requested to freeze the ACU deposits until such time as the respective interests in the estate had been determined. The Singapore branch of the bank was duly informed of this demand. On 27 July 1976, the appellant personally called at the Singapore branch of the bank and demanded payment of four sums, namely, DM3,287,591.13, DM2,364,187.60, DM2,659,204.26 and US$608,959.42 and further demanded that the balance of the ACU deposits be transferred to her sole name. On the same day, one of the children of Gen Thahir by his earlier marriage, Mr Ibrahim Thahir, called at the Singapore branch of the bank and directed the bank not to pay out any money to the appellant from the ACU deposits until the respective beneficial interests of the appellant and the estate of Gen Thahir were determined. On the following day, Mr Ibrahim Thahir called at the bank again and he was accompanied by Mr Abubakar Thahir and Mr Faruk Thahir, two other sons of Gen Thahir by his earlier marriage. They repeated the earlier demands.

Faced with these competing claims, the bank took out the originating summons seeking interpleader reliefs and named the appellant the first defendant and M/s Abubakar Thahir, Ibrahim Thahir and Faruk Thahir collectively as the second defendants. Later, by an order of court made on 4 February 1977, M/s Abubakar Thahir and Ibrahim Thahir were appointed to represent the estate of Gen Thahir for the purpose of those proceedings. About three months later, Pertamina came into the picture; on 6 May 1977, they gave notice to the bank claiming to be entitled to the ACU deposits on the ground that they were wrongfully acquired by Gen Thahir by way of bribes while being employed by Pertamina and the acquisition was contrary to his duty as an employee of Pertamina. In response, the bank applied to the High Court for Pertamina to be joined as a defendant, and by an order made on 24 June 1977, Pertamina was added as a defendant in those proceedings. By a subsequent order made on 12 March 1980, (i) Pertamina was ordered to be the plaintiffs; (ii) the appellant, the first defendant; and (iii) M/s Abubakar Thahir and Ibrahim Thahir representing the estate of the Gen Thahir, the second defendants, on a trial of an issue which we shall state in a moment.

On 30 June 1981, it was agreed by all the parties concerned that the two ACU deposits in US dollars would remain in US dollars and the 17 ACU deposits denominated in deutschemarks would be converted into one single US dollar deposit. As at 27 March 1992, the total amount of the ACU deposits, including interest, was US$81,757,260.74.

The issue below

The parties came to an agreement as to the terms of the issue to be tried, and for the purpose of this appeal, it is only necessary to set out the first issue, as amended by an order of court made on 2 December 1988. We shall call this `the amended first issue`, which is as follows:

Whether, as the plaintiffs affirm and the first and second defendants deny, the plaintiffs are entitled to the moneys being the ACU deposits and interest or proceeds in the Sumitomo Bank Ltd [the said moneys] in the names of HA Thahir and/or Kartika Ratna Thahir and whether such entitlement arises either under the law of the Republic of Singapore as the governing law and/or under the law of Indonesia as the law of the place having most connection with the rights, obligations and duties of the persons hereinafter referred to on one or more of the grounds following:

(a) > belong to the plaintiffs absolutely;

(b) are held subject to a trust in favour of the plaintiffs and not otherwise;

(c) as being moneys held and received for the plaintiffs` use;

(d) being the proceeds of crime or otherwise obtained unlawfully and/or in breach of contract by the said HA Thahir, should not be disposed of otherwise than to the plaintiffs;

(e) that the first defendant, having assisted the said HA Thahir in his dishonest and fraudulent design and/or having participated therein, is in any event liable to the plaintiffs as a constructive trustee thereto.

Decision below

The issue was tried before Lai Kew Chai J and he delivered a reserved judgment on 3 December 1992. The learned judge on the evidence before him found that the moneys in the bank came from Siemens, as to DM15m, and Klockner, as to DM35m, approximately; that Pertamina had paid Siemens and Klockner, inter alia, sums of money in respect of the Krakatau Steel project and the infrastructure facilities in the amounts which were set out in an annexure to his judgment, annexure B, and that there were linkages between those payments and Gen Thahir`s ACU deposits denominated in deutschemarks; that all the 17 ACU deposits denominated in deutschemarks were bribes which Siemens and Klockner had paid to Gen Thahir. With respect to the two ACU deposits denominated in US dollars, the learned judge found that Pertamina had failed to discharge their legal and evidential burden of proof, and, accordingly, they had no claim to these two sums. The learned judge held that Pertamina`s claims at law and in equity are governed by the law of Singapore. The claim at common law is for money had and...