Murakami Takako (executrix of the estate of Takashi Murakami Suroso, deceased) v Wiryadi Louise Maria and Others

JudgeChan Sek Keong CJ
Judgment Date12 November 2008
Neutral Citation[2008] SGCA 44
Docket NumberCivil Appeal No 59 of 2008
Date12 November 2008
Published date13 November 2008
Plaintiff CounselDevinder Rai and Subramanian A Pillai (Acies Law Corporation)
Citation[2008] SGCA 44
Defendant CounselAndre Yeap SC, Adrian Wong and Darren Dominic Chan (Rajah & Tann LLP)
CourtCourt of Appeal (Singapore)
Subject MatterClaim in equity,Whether Singapore court appropriate forum,Conflict of Laws,Civil Procedure,Immovable properties situated abroad,Whether Singapore court had jurisdiction,Jurisdiction,Choice of jurisdiction,Claim that immovable properties situated abroad held on trust,Forum non conveniens

12 November 2008

Judgment reserved.

Andrew Phang Boon Leong JA (delivering the judgment of the court):


1 This is an appeal against the decision of the High Court judge (“the Judge”) in which he disallowed, in part, the appellant’s application to amend her statement of claim (see Murakami Takako v Wiryadi Louis Maria [2008] 3 SLR 198 (“the GD”)). These proceedings are yet another chapter in the long history of litigation between the parties, the background of which we have previously set out in Murakami Takako v Wiryadi Louise Maria [2007] 4 SLR 565 (“Murakami Takako”) at [3]–[5].

2 In these proceedings, the appellant, acting on behalf of the estate of her late father, Takashi Murakami Suroso (“the Testator”), applied to include certain amendments which would expand her claim to include the following:

(a) moneys contained in two bank accounts with Westpac Bank in Australia (“the moneys in the Australian bank accounts”);

(b) five immovable properties and sale proceeds from three other immovable properties situated in Australia; and

(c) four immovable properties and sale proceeds from one other immovable property situated in Indonesia.

3 The Judge allowed only the amendments pertaining to the moneys in the Australian bank accounts. He held that the court had no jurisdiction over the claims to the specified foreign immovable properties (“the foreign immovable properties”) and the sale proceeds from the other specified foreign immovable properties (“the other foreign properties”), and that, even if the court had jurisdiction, he would have declined to exercise it on the ground of forum non conveniens.

The issues on appeal

4 The respondents have not appealed against the decision of the Judge to allow the amendments pertaining to the moneys in the Australian bank accounts and their counsel has confirmed that they are content to rest with that decision. Therefore, the issues that arise for our consideration pertain only to whether the Judge rightly disallowed the amendments with regard to the foreign immovable properties and the sale proceeds from the other foreign properties.

5 The Judge held that the appellant’s claims to the foreign immovable properties and the sale proceeds from the other foreign properties (“the Claims”) were caught by the rule in The British South Africa Company v The Companhia de Moçambique [1893] AC 602 (“the Moçambique rule”), the effect of which is that the court has no jurisdiction to determine the title to, or the right to possession of, any immovable property situated outside the forum. The Judge considered one of the main exceptions to the Moçambique rule, viz, that jurisdiction could be assumed where the claim was in equity (“the personal equities exception”), and held that it did not apply on the facts of the present case.

6 In the words of a leading expert in the field (see Adrian Briggs, Civil Jurisdiction and Judgments (LLP, 4th Ed, 2005) at para 4.06), the Moçambique rule:

... reflects the practical fact that only at the situs of the land can there be an effective determination of title. Even if an English court [in these proceedings, a Singapore court] were to hear the case, and were to choose and apply the law which a court at the situs would itself have applied, it is probable that its judgment will be ignored at the situs as one coming from a court with no jurisdiction to adjudicate on the issue. Acceptance of this fact is the pragmatic reason why the court has no jurisdiction to try questions of disputed title to foreign land. And because the issue is one where the court has no jurisdiction over the subject-matter of the claim, the purported submission of the defendant to the jurisdiction of the court is irrelevant: what the court lacks is subject-matter jurisdiction, not personal jurisdiction.

[One] … exception [to the Moçambique rule] is ancient and equitable in origin. According to the principle laid down in Penn v. Lord Baltimore [(1750) 1 Ves Sen 444; 27 ER 1132], though a court may have no jurisdiction to try a question of title to the land, this does not affect its jurisdiction to adjudicate on and enforce a contract, or fiduciary or other equitable obligation, between and binding on the parties.

7 Although a vigorous assault was made on the Moçambique rule in the House of Lords decision of Hesperides Hotels Ltd v Muftizade [1979] AC 508, the rule (as well as its exceptions, including the personal equities exception) was ultimately affirmed in that case (notwithstanding the court’s acknowledgment of the various critiques of the rule itself). Indeed, Lord Wilberforce was of the view that the nature of the Moçambique rule was such that any possible reform would need to be effected via legislation instead of judicial decision (see id at 537).

8 It is important to note − particularly in the context of the present proceedings and for reasons that will become apparent in the course of this judgment − that the Moçambique rule is one of subject-matter jurisdiction.

9 It is equally important to note that the Moçambique rule and the personal equities exception are part of Singapore law (see the decision of this court in Eng Liat Kiang v Eng Bak Hern [1995] 3 SLR 97 (“Eng Liat Kiang”) at 100–103, [11]–[19], where the Moçambique rule was assumed to be (as also noted in the preceding paragraph) one relating to jurisdiction). The court, therefore, generally has no jurisdiction over claims to foreign immovable properties except for, inter alia, claims in equity with respect to equitable obligations. In this case, the Claims lie in equity; they are trust claims. It follows that the personal equities exception prima facie applies and the court has jurisdiction over the Claims. The crux of this appeal is therefore twofold, namely:

(a) whether the Judge correctly found that the court did not have jurisdiction over the Claims; and

(b) if the court indeed has jurisdiction, whether the Judge rightly declined to exercise it on the ground of forum non conveniens.

10 In addressing these issues, the court’s jurisdiction over the foreign immovable properties and the sale proceeds from the other foreign properties will be considered together. We do not agree with counsel for the appellant that the claims to the sale proceeds from the other foreign properties are no different from the claim relating to the moneys in the Australian bank accounts. This argument ignores the different legal bases of the respective claims.

11 The basis of the appellant’s claim to the moneys in the Australian bank accounts is the assertion that those were funds provided by the Testator. On the other hand, the success of the claims to the sale proceeds from the other foreign properties rests on the appellant demonstrating the Testator’s interest, if any, in the other foreign properties before they were sold. This is because any interest which the Testator had in the said sale proceeds would have flowed from an interest in the other foreign properties. Therefore, in adjudicating on the claims to the sale proceeds from the other foreign properties, the court would necessarily have to consider the Testator’s interest in those properties. This, in turn, raises the question of jurisdiction over those properties. We will therefore deal with the foreign immovable properties and the sale proceeds from the other foreign properties together.

The requirements for the assumption of equitable jurisdiction

12 The Judge held that the court could not assume equitable jurisdiction for two reasons. First, the dispute was not sufficiently connected to the forum so as to warrant equity’s assistance. Second, the Judge commented, by way of obiter dicta, that it was also arguable that the appellant’s equity had already been extinguished by the lex situs. We will consider these reasons in turn.

Is a sufficient connection between the dispute and the forum a prerequisite to the assumption of equitable jurisdiction?

13 In support of the proposition that a sufficient connection between the forum and the dispute was required before the court could assume equitable jurisdiction, the Judge relied (see the GD at [24]) on an extract from R W White’s article, “Equitable Obligations in Private International Law: The Choice of Law” (1986) 11 Syd LR 92 (“White’s article”) at 106, which was cited at para 1.18 of T M Yeo, Choice of Law for Equitable Doctrines (Oxford University Press, 2004) (“Yeo’s book”), the leading work in the field. The above extract from White’s article reads as follows:

A defendant could not reasonably be expected to conform to the principles of English equity if his connection with England were as tenuous as mere presence at the time of service. It seems that instead of applying choice of law rules to a dispute the Court insisted that there be a sufficient connection between the parties or the cause of action and England.

14 This short extract from White’s article does, at first blush, appear to suggest that, in England, the courts of equity would only assume jurisdiction where the dispute was sufficiently connected to the forum. With respect, however, this extract must be read in the context of White’s article as a whole. When so read, it becomes clear that the learned author was referring in the extract set out in the preceding paragraph to the strict jurisdictional rules of the Court of Chancery which held sway in England prior to 1873. White sought to explain how these old jurisdictional rules also functioned as a proxy for choice of law analysis in the past. Put simply, the net result was a conflation of the rules of jurisdiction on the one hand and those relating to the choice of law on the other. The main issue before us in the present appeal is whether or not the old jurisdictional rules just referred to continue to apply today. The related issue as to whether or not there ought to be a conflation of jurisdictional rules and choice of law rules will (as we shall see) figure prominently...

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2 books & journal articles
  • Case Note
    • Singapore
    • Singapore Academy of Law Journal No. 2011, December 2011
    • 1 December 2011
    ...Doctrines (Oxford University Press, 2004) at para 1.09. 108 [2007] 1 SLR(R) 377. See also Murakami Takako v Wiryadi Louise Maria [2009] 1 SLR(R) 508, where the Court of Appeal re-affirmed the principle that jurisdiction and choice of law are two separate questions. 109 Shanghai Electric Gro......
    • Singapore
    • Singapore Academy of Law Journal No. 2021, December 2021
    • 1 December 2021
    ...Party Autonomy in Private International Law (Cambridge University Press, 2018) at p 209. 228 Murakami Takako v Wiryadi Louise Maria [2009] 1 SLR(R) 508 at [5] and [9], indicating that this rule — and its exceptions — are part of Singapore law. 229 See n 228 above. 230 Section 18D(1)(b) of t......

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