Safie bin Jantan v Zaiton bte Adom and another and another appeal

• Jurisdiction: Singapore
• Judge: Debbie Ong Siew Ling JAD
• Judgment Date: 08 February 2023
• Neutral Citation: [2023] SGHC(A) 8
• Court: High Court Appellate Division (Singapore)
• Docket Number: Civil Appeal No 107 of 2021; Civil Appeal No 108 of 2021
• Hearing Date: 08 February 2023
• Citation: [2023] SGHC(A) 8
• Year: 2023
• Plaintiff Counsel: Chishty Syed Ahmed Jamal (A C Syed & Partners),Mohamed Hashim bin Abdul Rasheed and Sofia Bakhash (A Mohamed Hashim)
• Defendant Counsel: Mohammad Shafiq bin Haja Maideen (M Shafiq Chambers LLC)
• Subject Matter: Family Law,Ancillary powers of court,Muslims,Issues within jurisdiction of civil court,Muslim Law,Syariah Court,Jurisdiction,Restitution,Unjust enrichment,Trusts,beneficiaries
• Published date: 11 February 2023

Debbie Ong Siew Ling JAD (delivering the judgment of the court ex tempore): Background

Mr Safie bin Jantan (“S”) is the appellant in AD/CA 107/2021 (“AD 107”) and the first respondent in AD/CA 108/2021 (“AD 108”). His present wife, Ms Zaiton binte Adom (“Z”) is the appellant in AD 108 and the first respondent in AD 107. Mr Safie’s ex-wife, Ms Nafsiah bte Wagiman (“N”), is the second respondent in both AD 107 and AD 108.

We dismiss the appeals in AD 107 and AD 108. These are the brief grounds of our decision.

S and N married in 1985 and divorced in 2018. S then married Z in 2019. In 2015, on S’s request, Z handed S a cheque made out to “CPF” and a cashier’s order made out to “CPF BOARD” totalling $205,359.80 (the “Moneys”). S was still married to N at that time. S handed the cheque and cashier’s order to N, who deposited the Moneys into her Central Provident Fund (“CPF”) account on S’s instructions. N then withdrew $125,717.15 from her CPF account to repay the loan on their matrimonial home, a Housing and Development Board flat (“the Flat”).

In May 2017, N commenced divorce proceedings against S in the Syariah Court. The Syariah Court granted a divorce decree on 4 December 2018 (the “2018 Order”) which included an order in paragraph 5 that the Flat was to be sold and N was to receive 100% of the net sale proceeds. Ten days after the 2018 Order, on 14 December 2018, S applied for variation of paragraphs 5 and 6 of the 2018 Order. Z intervened in those variation proceedings, seeking a claim of $205,359.80 for herself. In October 2019, the Syariah Court varied part of the 2018 order – it ordered that N was to pay Z the sum of $138,917.15. On appeal, the Appeal Board constituted under the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed) (the “Appeal Board”) set aside that variation order and restored the 2018 Order. Z then commenced a civil action in Originating Summons No 1014 of 2020 (“OS 1014”) claiming $205,359.80 from S and/or N.

Decision of the Judge

In OS 1014, the Judge of the General Division of the High Court (the “Judge”) held that S was personally liable to pay Z the sum of $205,359.80 as restitution for unjust enrichment. He noted that S conceded that in 2015, S owed a personal obligation to return Z the sum of $205,359.80. The Judge found that S and Z had shared a common intention for either S or Z to become the sole owner of the Flat in exchange for Z’s Moneys. He found that once the Moneys were handed over to S, the funds were at S’s free disposal and S was enriched. S’s choice to direct N to deposit the cashier’s orders into her CPF account did not detract from his enrichment. This enrichment was at Z’s expense and it was unjust as there was a failure of basis, which was the common intention for S to become the sole owner of the Flat. As the Appeal Board’s decision would result in the Flat’s entire net sale proceeds going to N, the basis had failed.

The Judge dismissed all the other claims made by Z against S and N.

Analyses and Observations

A main contention of the appellants is that it was N who has been unjustly enriched and her conduct was unconscionable as she now refuses to return the Moneys after initially acknowledging that they should be returned to Z. We observe that two facts are of critical importance here. First, N is now entitled to the entire net proceeds of the Flat due to a Syariah Court order. Second, we accept that N did not know until 2016 that the source of the Moneys was Z, nor did she know before then of the plans and common intention of S and Z. These facts are fatal to the appellants’ cases.

As a third party to the divorce proceedings between S and N, Z can only pursue her purported interest in the Flat by way of independent civil proceedings. The Appeal Board referred to the principles in the Court of Appeal (“CA”) decision of UDA v UDB and another [2018] 1 SLR 1015 (“UDA”) and the High Court decision of UDA v UDB [2018] 3 SLR 1433. It applied the same reasoning in these decisions and held that the Syariah Court exercising matrimonial jurisdiction over divorcing parties had no jurisdiction to determine the substantive rights of a third party to the divorce proceedings.

What then, could someone in Z’s position have done? In UDA, the CA explained (at [54]):

A third party claiming an interest in any property alleged to be a matrimonial asset is entitled to have his rights ruled on by the court and is, further, entitled to the benefit of a final ruling which he can assert against the rest of the world. If the third party wants to directly assert those rights, what should he do? He can, of course, and should commence independent civil proceedings against either or both the spouses (depending on the factual situation) for a declaration as to his interest and other relief. The question is whether he can do anything in relation to the ongoing s 112 proceedings. Given that the third party cannot participate in those proceedings, whilst he may ask for leave to intervene in the...