Rahimah bte Hussan v Zaine bin Yusoff

• Jurisdiction: Singapore
• Judge: K S Rajah JC
• Judgment Date: 08 February 1995
• Neutral Citation: [1995] SGHC 37
• Docket Number: Originating Summons No 984 of 1994
• Date: 08 February 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Abdul Rohim Sarip (A Rohim Pereira & Pnrs)
• Citation: [1995] SGHC 37
• Defendant Counsel: Lawrence Hussein (Ng Thin Wah & Pnrs)
• Court: High Court (Singapore)
• Subject Matter: Presumption in favour of lesser powers necessary to enforce powers conferred by statute,s 29(1) Interpretation of Statutes Act (Cap 1),Effect of absence of provision similar to s 14(1) of the Supreme Court of Judicature Act (Cap 322) in the Administration of Muslim Law Act (Cap 3),Syariah court,Muslim Law,Construction of statute,Whether the president of the Syariah Court had powers similar to that of the Registrar of the Supreme Court to execute documents on behalf of recalcitrant defendants,Omission of words in statute,s 52(3) Administration of Muslim Law Act (Cap3),Orders,Statutory Interpretation

Cur Adv Vult

The question is whether a declaration from the High Court must be obtained after the Syariah Court has made an order disposing property on divorce to obtain the signature of the Registrar of the Supreme Court to sign documents so that the Registrar`s signature can have the same effect as the signature of the defendant or whether the president of the Syariah Court has sufficient powers to deal with the matter where the defendant refuses or neglects to execute documents.

The plaintiff seeks the determination of the court on the following orders:

(1) A declaration that the plaintiff is entitled to the transfer of the defendant`s interest in the flat known as Blk 411 Pandan Gardens #05-94 Singapore 2260 with the plaintiff bearing all the expenses for the transfer and reimbursing the defendant`s Central Provident Fund (CPF) account of all his CPF contributions with interest that were utilized for the purchase of the flat.

(2) An order that the defendant do within 14 days of the making of the order of court attend at the Jurong East Branch Office of the Housing and Development Board (HDB) to execute such documents as are necessary to effect the transfer of the flat solely to the plaintiff and to effectively vest ownership of the flat in the plaintiff.

(3) An order that in the event of the defendant`s failure to comply with the aforesaid order, the Registrar of the Supreme Court be empowered and do execute all such documents as are necessary on behalf and in the name of the defendant to effect the said transfer to the plaintiff.

(4) That the defendant be ordered to pay the costs of and incidental to these proceedings.

The defendant objected to the application on the ground that the court had no jurisdiction since s 16(2) of the Supreme Court of Judicature Act (Cap 322) (SCJA) provides:

Notwithstanding subsection (1), the High Court shall have no jurisdiction to hear and try any civil proceeding which comes within the jurisdiction of the Syariah Court constituted under the Administration of Muslim Law Act.

I made no order on the application and directed the enforcement of the orders made by the Syariah Court be referred to the president of the Syariah Court for directions when the matter first came before me on 23 December 1994. At the request of solicitors for the plaintiff, I heard further arguments. After hearing further arguments, I order the orders made on 23 December 1994 to stand. These are my reasons.

Background

On 8 April 1993 the Syariah Court decreed that the marriage between the plaintiff and the defendant be dissolved and made an order for the disposition of property in the following terms:

[Translation] The flat at Blk 411 Pandan Gardens #05-94 S`pore 2260 is given to the wife. The husband shall transfer his share on the flat to the wife. All his CPF contributions to purchase the said flat shall be reimbursed into his CPF account with interest. All expenses incurred in relation to the transferring of the share to the flat to the wife be borne by the wife.

Despite the plaintiff`s repeated demands, the defendant refused to comply with the order. On 29 September 1993, the plaintiff`s solicitors wrote to the defendant`s solicitors demanding that the defendant transfer the flat. Another letter dated 22 January 1994 was also sent. However, to date the defendant has neglected and refused to comply with the order and it has been almost two years since the order was made.

The order of 8 April 1993 was made under the following provisions of the Administration of Muslim Law Act (Cap 3) (AMLA):

34 The President of Singapore may by notification in the Gazette constitute a Syariah Court for Singapore (referred to in this Part as the Court).

35(1) The Court shall have jurisdiction throughout Singapore and shall be presided over by a president to be appointed by the President of Singapore.

(2) The Court shall 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 -

(a) marriage;

...

(d) the disposition or division of property on divorce;

...

(3) In all questions regarding ... marriage, dissolution of marriage ..., the disposition or division of property on divorce ... and the payment of maintenance on divorce the rule of decision where the parties are Muslims or were married under the provisions of the Muslim law shall, subject to the provisions of this Act, be the Muslim law, as varied where applicable by Malay custom.

No dispute

The plaintiff argued that the application before the court does not involve any dispute relating to the disposition or division of the property on divorce. The dispute had already been settled by the Syariah Court order. The order was final and there is no appeal. There was also no question as to the disposition or division of the flat and that the High Court was not being asked to dispose of or divide the flat as the necessary order had already been made by the Syariah Court.

It was further argued that the SCJA does not preclude the High Court from enforcing an order on a matter that has already been determined by the Syariah Court. The High Court was not being asked to make any decision to divide or dispose of the flat and the plaintiff was merely seeking to enforce the order.

Enforcement

The Syariah Court`s power to deal with persons who fail or neglect to comply with an order of court is found in s 53 AMLA. Sections 52(3) and 53 AMLA read:

52(3) In any application for divorce the Court may, at any stage of the proceedings or after a decree or order has been made, make such orders as it thinks fit with respect to -

...

(d) the disposition or division of property on divorce.

(4) The procedure and forms of process in suits under this section shall be as prescribed by rules made under section 145.

53 If any person fails or neglects to comply with an order of the Court made under section 52 the Court may for every breach of the order direct the amount or the value of the property due to be levied in the manner provided for levying fines imposed by a Magistrate`s Court or may sentence him to imprisonment for a term not exceeding 6 months. [Emphasis added.]

The Syariah Court under s 34(3) is vested with the jurisdiction to decide on `all questions` regarding the disposition or division of property. Under s 52(3)(d) of AMLA, the court is empowered to make such orders as it thinks fit with respect to the disposition or division of property on divorce . Section 52(3) refers to the powers of the court at `any stage of the proceedings` and specifically refers to `[after an] order has been made`.

Section 52(4) further provides that the procedure and forms of process in suits relating to the disposition or division of property on divorce shall be as prescribed by rules made under s 145 by the President of Singapore who may make rules as seem necessary or expedient for the purpose of carrying out the provisions of AMLA. The President of Singapore has made:

(1) Muslim Marriage and Divorce Rules;

(2) Refusal to Register Marriages, Etc (Form of Notification) Rules;

and other rules. The rules provide for enforcement of orders (eg see r 23 of the Muslim Marriage and Divorce Rules). Section 53 AMLA further provides for enforcement of orders.

The question is whether the present application to this court should be considered having regard to the provisions for enforcement of orders made in AMLA and rules made under it and the order of court which requires:

(a) the defendant to give and transfer the flat;

(b) the plaintiff to pay the defendant`s CPF contributions and the expenses that would be incurred in the transfer.

Rules have been made to punish persons who refuse to comply with the orders made by the Syariah Court and there is `bite` in them.

Rule 23 of the Muslim Marriage and Divorce Rules provides for a warrant to be issued to levy the amount of the value of the property by distress and sale where there is neglect or failure to comply with an order made under s 52 AMLA. Section 53 AMLA further provides for action to be taken where there is a breach of an order.

Section 29(1) of the Interpretation Act (Cap 1) provides in general terms that:

Where a written law confers power on any person to do or enforce the doing of any act or thing, all such powers shall be understood to be also conferred as are reasonably necessary to enable the person to do or enforce the doing of the act or thing.

The question whether the president of the Syariah Court can, where he has ordered the division of...