Mohamed Shariff Valibhoy and Others v Arif Valibhoy

• Jurisdiction: Singapore
• Judgment Date: 29 January 2016
• Date: 29 January 2016
• Docket Number: Originating Summons No 355 of 2015 (Summons No 2415 of 2015)
• Court: High Court (Singapore)

Mohamed Shariff Valibhoy and others

and

Arif Valibhoy

[2016] SGHC 11

Kannan Ramesh JC

Originating Summons No 355 of 2015 (Summons No 2415 of 2015)

High Court

Muslim Law — Charitable trusts — Trustees of wakaf applying to court to remove another trustee and replace him with another individual — Whether court had jurisdiction over Muslim charitable trust known as wakaf under Trustees Act (Cap 337, 2005 Rev Ed) — Trustees Act (Cap 337, 2005 Rev Ed)

Muslim Law — Majlis Ugama Islam Singapura — Powers — Whether Majlis Ugama

Islam Singapura having sole administrative dominion over wakaf

The plaintiffs (“the Plaintiffs”) applied vide Originating Summons No 355 of 2015 (“OS 355”) for the defendant (“the Defendant”) to be replaced with one Abdul Rashid bin Abdul Gani as a trustee of the Valibhoy Charitable Trust (“the VCT”). It was common ground that the VCT was a wakaf as defined in s 2 of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) (“the AMLA”). The Plaintiffs and the Defendant were trustees of the VCT. The Plaintiffs’ application in OS 355 was made under ss 37 and 42 of the Trustees Act (Cap 337, 2005 Rev Ed) and O 92 r 4 of the Rules of Court (Cap 322, R 5, 2014 Rev Ed). The Defendant applied vide Summons No 2415 of 2015 (“Sum 2415”) to strike out OS 355.

The following issues arose for determination: (a) whether, on a proper construction of s 58 of the AMLA, Parliament intended that the jurisdiction and/or power to manage a wakaf including that in relation to the removal and appointment of trustees of a wakaf, lay exclusively within the purview of the Majlis Ugama Islam Singapura (“the Majlis”); (b) whether the Trustees Act conferred on the court the concurrent jurisdiction and/or power to intervene in a wakaf including that in relation to the removal and appointment oftrustees; and (c) whether the court had, in any event, the jurisdiction and/or power to remove the Defendant as trustee of the VCT.

Held, allowing the application to strike out OS 355:

(1) Parliament intended by the enactment of the AMLA for the Majlis to be the body charged with the responsibility of the administration of Muslim law and the regulation of Muslim religious affairs. This was for the purposes of protecting and safeguarding the Islamic religion in Singapore, consonant with the imprimatur in Art 152(2) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint): at [22].

(2) Because Parliament intended the Majlis to administer and regulate

Muslim religious affairs, the Majlis was made the “trustee” of all Muslim

religious trusts including wakafs, and was charged with the responsibility of dealing with their affairs. The administration of wakafs including the appointment, management and removal of trustees was therefore placed within the Majlis’ sole dominion pursuant to s 58(2) of the AMLA: at [23].

(3) Parliament could not have intended that the trustees of the wakaf had recourse to the court upon the enactment of the AMLA because such concurrentjurisdiction would have led to inconsistent decisions issued by the court and the Majlis as unlike s 12(1) of the Muslim and Hindu Endowments Ordinance (Cap 271, 1955 Rev Ed) that elevated a judicial order over that of the Board (the predecessor to the Majlis), there was no provision in the AMLA that elevated a judicial order over the decision of the Majlis: at [52] and [53].

(4) Parliament could not have intended that the trustees of the wakaf had recourse to the court upon the enactment of the AMLA because there was arisk that different standards and different laws were applied by the court and the Majlis on the same issue, viz, (a) the statutory limitations that were imposed on the Majlis under ss 58(4)(a)—58(4)(c) of the AMLA in relation to the removal of trustees of a wakaf would not have applied to the court; and (b) while the Majlis would have applied Muslim law under the AMLA, the court would have applied the common law under the Trustees Act: at [54] and [56].

(5) As Parliament had already clearly delineated the scope of the court’s jurisdiction in s 63 of the AMLA, viz, to the construction of an instrument or declaration creating or affecting a wakaf or nazar when referred to it by the Majlis under its sole discretion because of obscurity and uncertainty in the meaning and effect of the same, by inference, the court did not have jurisdiction over matters that fell outside that situation which included the administration of wakafs: at [47], [48], [50], [55] and [59].

(6) Section 17A of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) was enacted to extend the court’s jurisdiction to specific matters pertaining to Muslim parties and allow the court to assume jurisdiction over matters that fell within the remit of the Syariah Court. The fact that thatjurisdiction did not extend to include the powers of the Majlis indicated that it was not intended by Parliament that the court was to have concurrent jurisdiction over matters that the Majlis was to administer: at [88].

(7) The court did not have subject matter jurisdiction over a wakaf pursuant to the Trustees Act because, as noted in LS Investment Pte Ltd v Majlis Ugama Islam Singapura [1998] 3 SLR(R) 369, a wakaf differed from an English law trust as received in Singapore law as it was a Muslim law juridical creature. The Trustees Act dealt with English law trusts as received in Singapore and therefore could not apply to a wakaf: at [66], [71] and [73].

(8) Even if the Trustees Act applied to a wakaf, the true “trustee” of a wakaf was the Majlis as it held legal title to the wakaf property pursuant to s 59 of the AMLA and had sole administrative charge of the wakaf pursuant to s 58(2) of the AMLA; consequently, a trustee of a wakaf would not even have had the locus standi to bring an application under the Trustees Act: at [69], [70] and [80].

(9) The use of the term “trustees” in s 58(4) of the AMLA did not ipso facto suggest that the Trustees Act applied to these individuals as the term “trustees” in s 58(4) of the AMLA was used contextually to refer to a class of mutawallis

(see s 2 of the AMLA) who were appointed pursuant to the trust instrument/declaration: at [77].

(10) The Plaintiffs’ application in OS 355 to remove a trustee of a wakaf was legally unsustainable as the court did not have subject matter jurisdiction over the VCT pursuant to the Trustees Act and the Plaintiffs had no locus standi to bring OS 355: at [80].

(11) The inherent jurisdiction of the court could not be invoked when the statutory avenues had not been observed and exhausted: at [92].

(12) The court would not have exercised its inherent residual jurisdiction and powers over a wakaf (if any) in the present case because the Plaintiffs had clearly not exhausted the statutory avenue available to them, viz, putting the issue before the Majlis for determination: at [93].

[Observation: Even if the Plaintiffs had concerns over the Majlis’ administration of the VCT, they nevertheless had to allow the Majlis to decide on the issues raised in OS 355 in relation to the removal of the Defendant as trustee as Parliament intended that responsibility to vest with the Majlis. The only remedy the Plaintiffs might then have had was to judicially review the decision of the Majlis based on principles of administrative law. Even then, the Plaintiffs could only seek to impugn the decision of the Majlis if they (a) satisfied the relevant threshold requirements to bring the judicial review application and (b) showed that the Majlis acted illegally, irrationally or in a procedurally improper manner: at [96].]

Abdul Rahman bin Mohamed Yunoos v Majlis Ugama Islam Singapura [1995] 2 SLR(R) 394; [1995] 2 SLR 705 (refd)

LS Investment Pte Ltd v Majlis Ugama Islam Singapura [1998] 3 SLR(R) 369; [1998] 3 SLR 754 (refd)

Syed Abbas bin Mohamed Alsagoff v Islamic Religious Council of Singapore

(Majlis Ugama Islam Singapura) [2010] 2 SLR 136 (refd)

Wee Soon Kim Anthony v Law Society of Singapore [2001] 2 SLR(R) 821; [2001] 4 SLR 25 (refd)

Legislation referred to

Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) ss 2, 58, 59, 63 (consd) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) Art 152(2) (consd)

Muslim and Hindu Endowments Ordinance (Cap 271, 1955 Ed) s 2, s 3(1), s 4, s 7(a), s 12(1) (consd)

Rules of Court (Cap 322, R 5, 2014 Rev Ed) O 92 r 4 (consd)

Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) s 16(1), s 16(2), s 17A, s 17A(2) (consd)

Trustees Act (Cap 337, 2005 Rev Ed) ss 37, 42 (consd) Trustees Ordinance (Cap 34, 1955 Ed)

Prabhakaran s/o Narayanan Nair and Tan Zhi Xin (Derrick Wong & Lim BC LLP) for the plaintiffs;

Leong Yi-Ming and Lee Bik Wei (Allen & Gledhill LLP) for the defendant; Jordan Tan Zhengxian (Cavenagh Law LLP) as amicus curiae.

Kannan Ramesh JC:

Introduction

1 Does the High Court have jurisdiction under the Trustees Act (Cap 337, 2005 Rev Ed) (“the Trustees Act”) to remove and appoint trustees of a Muslim charitable trust known as a wakaf or does the jurisdiction to do so reside solely with the Majlis Ugama Islam Singapura (“the Majlis”) under the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) (“the AMLA”)? This was the central question in Summons No 2415 of 2015 (“Sum 2415”), an application by the defendant (“the Defendant”) to strike out Originating Summons No 355 of 2015 (“OS 355”).

2 The plaintiffs (“the Plaintiffs”) applied vide OS 355 for the Defendant to be replaced with one Abdul Rashid bin Abdul Gani as a trustee of the Valibhoy Charitable Trust (“the VCT”). It was common ground that the VCT was a wakaf as defined in s 2 of the AMLA. The Plaintiffs and the Defendant were trustees of the VCT. The...