Pereira Dennis John Sunny v Faridah bte V Abdul Latiff

• Jurisdiction: Singapore
• Judge: Colin Seow AR
• Judgment Date: 01 July 2016
• Neutral Citation: [2016] SGHCR 9
• Court: High Court (Singapore)
• Docket Number: Suit No 37 of 2016 (Summons No 1909 of 2016)
• Published date: 14 January 2017
• Year: 2016
• Hearing Date: 16 June 2016,27 May 2016
• Plaintiff Counsel: Chong Xin Yi (Ignatius J & Associates)
• Defendant Counsel: Abdul Rahman Bin Mohd Hanipah (Abdul Rahman Law Corporation)
• Subject Matter: Courts and Jurisdiction,High Court,Jurisdiction,Muslim Law,Syariah Court,Civil Procedure,Stay of Proceedings,Inherent Powers
• Citation: [2016] SGHCR 9

Colin Seow AR: Introduction

Summons No 1909 of 2016 (“the Application”) is an application taken out by Faridah bte V Abdul Latiff (“the Defendant”) seeking a stay pursuant to section 17A(3)(a) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”) of proceedings in High Court Suit No 37 of 2016 (“the Civil Proceedings”) commenced by her husband, Pereira Dennis John Sunny (“the Plaintiff”). At the time of the hearings for the Application, there was a pending Originating Summons No 49735 taken out by the Defendant in the Syariah Court (“OS 49735 (Syariah Court)”) on 29 March 2016, seeking an order for divorce vis-à-vis the Plaintiff.

Originally taken out on 6 November 2015 by way of an originating summons but since having been ordered by a Judicial Commissioner on 5 January 2016 to be converted into a writ action, the Civil Proceedings seeks, inter alia, declarations by the High Court on the Plaintiff’s rightful beneficial shares in respect of four properties held in the parties’ joint names. Following the conversion ordered by the Judicial Commissioner, the Plaintiff filed and served his Statement of Claim in the Civil Proceedings on 23 February 2016.

The material parts of section 17A of the SCJA which are of key relevance to the Application are reproduced herein below:

Civil jurisdiction — concurrent jurisdiction with Syariah Court in certain matters

17A.—(1) Notwithstanding sections 16 and 17 [which deal with the High Court’s general and specific civil jurisdiction], the High Court shall have no jurisdiction to hear and try any civil proceedings involving matters which come within the jurisdiction of the Syariah Court under section 35(2)(a), (b) or (c) of the Administration of Muslim Law Act (Cap. 3) in which all the parties are Muslims or where the parties were married under the provisions of the Muslim law.

(2) Notwithstanding that such matters come within the jurisdiction of the Syariah Court under section 35(2)(d) or (e), 51 or 52(3)(c) or (d) of the Administration of Muslim Law Act, the High Court shall have jurisdiction as is vested in it by any written law to hear and try any civil proceedings involving matters relating to — (a) maintenance for any wife or child; (b) custody of any child; and (c) disposition or division of property on divorce.

(3) Where civil proceedings involving any matter referred to in subsection (2)(b) or (c) and involving parties who are Muslims or were married under the provisions of the Muslim law are commenced in the High Court, the High Court shall stay the civil proceedings — (a) involving any matter referred to in subsection (2)(b) or (c), if the civil proceedings are commenced on or after the commencement of proceedings for divorce in the Syariah Court or after the making of a decree or order for divorce by the Syariah Court or on or after the registration of any divorce under section 102 of the Administration of Muslim Law Act (Cap. 3) between the same parties, unless a Syariah Court commencement certificate in respect of the civil proceedings has been filed with the High Court; […]

[emphasis in underlined italics added]

Sections 35(2)(d) and 52(3)(d) of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) (“the AMLA”) referred to in the provisions cited above, and which deal with the jurisdiction of the Syariah Court, provide as follows:

Jurisdiction

35.—(1) […]

(2) The [Syariah] Court shall have jurisdiction to hear and determine all actions and proceedings in which all the parties are Muslims or where the parties were married under the provisions of the Muslim law and which involve disputes relating to — […] (d) the disposition or division of property on divorce or nullification of marriage; […]

[…]

Provisions consequent on matrimonial proceedings

52.—(1) […]

[…]

(3) The [Syariah] Court may, at any stage of the proceedings for divorce or nullity of marriage or after making a decree or order for divorce or nullity of marriage, or after any divorce has been registered under section 102 before 1st March 2009, on the application of any party, make such order as it thinks fit with respect to — […] (d) the disposition or division or property on divorce or nullification of marriage.

Issues before this court

The two primary issues that emerged in the course of counsel’s submissions at the hearings can be summarised as follows: whether the Civil Proceedings was “commenced on or after the commencement of proceedings for divorce in the Syariah Court”, such that the Civil Proceedings must be stayed pursuant to section 17A(3)(a) of the SCJA; and if not, whether there is any other basis upon which this court should nevertheless order a stay of the Civil Proceedings.

I shall deal with these issues in sequence.

Issue One: whether the Civil Proceedings was “commenced on or after the commencement of proceedings for divorce in the Syariah Court”, such that the Civil Proceedings must be stayed pursuant to section 17A(3)(a) of the SCJA

According to the express wording of section 17A(3)(a) of the SCJA (see [3] above), “the High Court shall stay the civil proceedings […] if the civil proceedings are commenced on or after the commencement of proceedings for divorce in the Syariah Court […] between the same parties, unless a Syariah Court commencement certificate in respect of the civil proceedings has been filed with the High Court” (emphasis added).

The Defendant’s counsel in his submissions contends that the Civil Proceedings was “commenced on or after the commencement of proceedings for divorce in the Syariah Court”, on the following grounds: the date of commencement of proceedings for divorce in the Syariah Court was not the date OS 49735 (Syariah Court) was taken out by the Defendant (ie, 29 March 2016) (see [1] above), but rather an earlier date on which the Plaintiff had submitted a registration form (“the Registration Form”) to the Syariah Court, purportedly to initiate his own application for divorce vis-à-vis the Defendant at the time. The submission of the Registration Form took place on 28 July 2015, way before the commencement of the Civil Proceedings which, at its earliest, was 6 November 2015 and, at its latest, would be 23 February 2016 (see [2] above) ; and the Registry of the Syariah Court, in response to a letter by the Defendant’s counsel dated 13 April 2016 requesting to “advise the date where [sic] the parties […] commenced their divorce proceedings”, had confirmed by way of its letter dated 19 April 2016 stating that “[o]ur records show that [the Plaintiff] submitted the registration form on 28 July 2015”.¹

The Plaintiff’s counsel in her submissions argues to the contrary that the correct date of commencement of the Syariah Court divorce proceedings should take reference from the time when OS 49735 (Syariah Court) was taken out, as opposed to the date the Plaintiff submitted the Registration Form to the Syariah Court. In support, the Plaintiff’s counsel drew attention to the standard form adopted by the Syariah Court for the Registration Form, where it included, inter alia, the following fields to be completed by the submitting party:²

Section C: Marriage Details

27 Reason for filing application with Syariah Court*

1	Marriage Counsel[l]ing	3	Revocation/Remarriage
2	Divorce	4	Nullity

[…]

Section H: Marriage Counsel[l]ing

[…]

105 On a scale of 10 to 1, rate your chances of proceeding with divorce after attending marriage counselling, with 10 being the Highest and 1 the Lowest.*

[emphasis in bold in original; emphasis in italics added]

In particular, the Plaintiff’s counsel argues that field number 105 excerpted above does not accord with the Defendant’s case that the submission of the Registration Form amounted to a commencement of divorce proceedings in the Syariah Court. The Plaintiff’s counsel further alludes to a Syariah Court brochure which stated, inter alia, the following:³

How do I commence divorce proceedings?

To commence divorce proceedings, you must file the following documents: • originating summons • completed case statement (Form 7 for male plaintiff / Form 8 for female plaintiff)

Your case statement MUST specify the ground or grounds for divorce which you are relying upon (Please see the types of divorce mentioned above). Incompatibility is not a valid ground for divorce.

The person who files the originating summons is known as the plaintiff. The other party is known as the defendant. At all court sessions, the plaintiff and the defendant are required to bring their identification cards for verification.

[emphasis in bold in original; emphasis in italics added]

The decision on Issue One

I have no doubt given the materials adduced by the Plaintiff’s counsel that the date of commencement of divorce proceedings in the Syariah Court between the parties was the date when OS 49735 (Syariah Court) was taken out by the Defendant (ie, 29 March 2016). As regards the letter from the Registry of the Syariah Court (see [8(b)] above), it simply indicated the date when the Plaintiff submitted the Registration Form. Nowhere in the letter did the Registry of the Syariah Court further communicate that the date indicated was to be taken as the date on which proceedings for divorce between the parties commenced. Furthermore, I also note from my perusal of the High Court’s records that the learned Judicial Commissioner, in ordering the conversion of the Civil Proceedings into a writ action (see [2] above), had minuted down his observation that “there is no divorce proceeding pending” as at the date of his order (ie, on 5 January 2016). The Judicial Commissioner’s observation is material as it was (a) made about five to six months after the Plaintiff had submitted the Registration Form to the Syariah Court, and (b) expressed in...