Madiah bte Atan v Samsudin bin Surin
| Judge | Chao Hick Tin J |
| Judgment Date | 12 May 1998 |
| Neutral Citation | [1998] SGCA 29 |
| Citation | [1998] SGCA 29 |
| Defendant Counsel | Respondent in person (absent) |
| Year | 1998 |
| Subject Matter | Pre-conditions,High court,Declaratory,Whether civil proceeding within jurisdiction of Syariah Court,Marriage in accordance with Muslim law,Whether Syariah Court has jurisdiction,Courts and Jurisdiction,Court judgments,s 35 Administration of Muslim Law Act (Cap 3),s 16 Supreme Court of Judicature Act (Cap 322),'divorce'- s 35(2)(d) Administration of Muslim Law Act (Cap 3),Registration of divorce by Kadi,Muslim Law,O 15 r 16 Rules of Court,Jurisdiction,Disposition of property on divorce,Administration of Muslim Law Act (Cap 3) ss 35, 52(3),Words and Phrases,Syariah court,Supreme Court of Judicature Act (Cap 322) s 18, First Schedule para 14,'In any application for divorce'- s 52(3) Administration of Muslim Law Act (Cap 3),No dispute over transfer of property |
| Court | Court of Three Judges (Singapore) |
| Plaintiff Counsel | Sahul Hameed (Hameed & Co) |
| Published date | 19 September 2003 |
The facts
Cur Adv Vult
The parties in this appeal are both Muslims who were married on 14 May 1971 in accordance with Muslim law. They have three children out of the said marriage.
2.The subject matter in question is a Housing and Development Board (HDB) flat purchased on 18 January 1987 in the joint names of both parties (as required under the prevailing HDB rules then) at the price of $43,000. The appellant (the wife) made a downpayment of $1,700 from her Central Provident Fund (CPF) account and together they raised a mortgage loan to pay the balance. She continues to pay the instalments on the loan. The respondent (the husband) did not pay a single cent towards the purchase. A substantial part of the loan remains unpaid.
3.On 30 January 1991, the wife and the husband appeared before a kadi of the Syariah Court and registered a consensual divorce. They further agreed that the wife shall have custody of the children.
4.No orders were made in respect of the HDB flat because the Kadi lacked the requisite jurisdiction and power. However, the husband voluntarily agreed to transfer the flat to the wife. Thus, on 16 November 1992, they went to the HDB and the husband affirmed a statutory declaration for the transfer.
5.On 4 December 1992, the HDB wrote to the wife to inform her that the transfer was approved and will be effective from 1 February 1993. The parties were told to go to the HDB within the next ten days to confirm the financial plan, sign the CPF withdrawal form and make the necessary payments.
6.On 14 December 1992, both parties went to the HDB and requested the HDB to act for them in the intended transfer. The HDB agreed, and a sum of $69 was paid for the intended conveyance.
7.But that day also turned out to be the last time the wife saw the husband. It transpired that he is now wanted by the Central Narcotics Bureau in connection with a drug offence. Meanwhile, the intended transfer remained uneffected. The wife thus applied for Legal Aid and her present solicitors were assigned to the case to seek the appropriate reliefs through a court declaration. In a proposed amendment to the originating summons, the court below was urged, inter alia, to declare that the wife and the husband hold the flat as joint tenants in trust for the wife as to the entirety.
8. The decision below
In the High Court decision (which is reported in [1998] 1 SLR 610), Lim Teong Qwee JC found that the relief sought was an application on divorce. Accordingly, he held that the High Court had no jurisdiction to hear the matter because of the construction which he placed on s 16 of the Supreme Court of Judicature Act (Cap 322) (SCJA), read with the provisions of the Administration of Muslim Law Act (Cap 3) (AMLA). In the learned judicial commissioner`s view, the application could only be heard by the Syariah Court.
9.Following this decision, the case was reverted to the Syariah Court for application of the same relief. However, the Syariah Court declined jurisdiction on the basis that the Appeal Board of Majlis Ugama Islam Singapura in the Syariah Court Appeal 22/93 (see [para ] 29 below) had held that a wife who registered a divorce by mutual consent under s 102(3) of AMLA could not apply to the Syariah Court for an ancillary order in respect of the division of property. This decision was binding on the Syariah Court.
10.This appeal has therefore arisen to resolve the conflicting stands taken by the High Court and the Syariah Court with regard to jurisdiction.
11. Contentions of the appellant
before In this appeal, the wife essentially contends the following: (a). That the learned judicial commissioner was wrong in holding that the proceedings before him were for the disposition of property on divorce which fell within the ambit of s 35(2) and s 52(3) of AMLA. In fact, the application is simply one for partition of land under s 18(2) read with the First Schedule paras 2 and 14 of the SCJA. To this end, only the High Court can declare the parties` beneficial interests in an immovable property in equity.
(b). That, in the alternative, if the application is indeed a proceeding for the disposition of property on divorce, the Syariah Court has no jurisdiction. This argument is based on the distinction between jurisdiction and powers. It is contended that, although the Syariah Court has jurisdiction under s 35 of AMLA over disputes relating to disposition of property, its powers to make the relevant orders under s 52(3) are limited to applications for divorce the Syariah Court. Where the divorce is consensual and before a kadi under s 102 (as in the case here), the Syariah Court has no power to make orders pursuant to s 52(3). Thus, this is not a civil proceeding `which comes within the jurisdiction of the Syariah Court` in the sense that the Syariah Court cannot exercise its judicial powers with respect to the application. Consequently, only the High Court has jurisdiction to hear the application.
(c). That this is an appropriate case to seek a declaratory judgment under O 15 r 16 of the Rules of Court 1996.
12. The appeal
We shall just deal briefly with contention (a) which, in our opinion, is unsustainable. On the facts, it is clear that the parties have registered a consensual divorce before the kadi, and the purpose of the wife`s application is basically to declare her interest in the flat arising from such a divorce. The question before us is therefore whether the application even properly falls within the ambit of s 35(2) of AMLA which deals with the Syariah Court`s jurisdiction (infra at [para ] 15). On this point, it has been noted by this court in Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1996] 2 SLR 201 at p 210 that:
[T]he crucial test is whether in substance the subject matter of the present dispute has been demarcated for determination by the Syariah Court. Where the Syariah Court has such jurisdiction, the High Court cannot deliberate on the issue. At this stage of the analysis, what has to be discerned is the subject matter of the application in question. It requires a statement of the wife`s interest in the property, and such interest arises from the divorce. Therefore, in the appeal at present, the declaration is undoubtedly one involving disposition or division of property on divorce.
Hence, on the facts, counsel`s submission that the present application is merely for the partition of land is in our view artificial and untenable. Quite clearly, this application is seeking a statement of the wife`s interest in the flat arising out of the divorce.
13. Section 35 of AMLA - `involve disputes relating to the disposition or division of property on divorce`
In any event, it seems to us that the crucial issue here is simply whether there is even a dispute relating to disposition of property on divorce in the first place - an express pre-condition to jurisdiction of the Syariah Court as set out in s 35 of AMLA and a fundamental point which appears to be overlooked by counsel.
14.In this...
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