Salijah bte Ab Lateh v Mohd Irwan Abdullah

• Jurisdiction: Singapore
• Judgment Date: 13 September 1995
• Date: 13 September 1995
• Docket Number: Originating Summons No 1274 of 1994
• Court: High Court (Singapore)

Salijah bte Ab Latef

Plaintiff

and

Mohd Irwan bin Abdullah Teo

Defendant

[1995] SGHC 216

Judith Prakash J

Originating Summons No 1274 of 1994

High Court

Civil Procedure–Judgments and orders–Declaratory–Principles circumscribing power of High Court to make declaratory order–Wife obtaining divorce decree and ancillary orders in Syariah Court–Wife purporting to apply to High Court for declaratory order to effect Syariah Court order–Whether justiciable right existed–Courts and Jurisdiction–High Court–Jurisdiction to hear dispute over which Syariah Court had adjudicated–Whether contrary to public policy–Family Law–Muslims–Issues within jurisdiction of civil court–Whether making declaratory order would amount to civil court appearing to confirm Syariah Court order–Muslim Law–Syariah Court–Powers–Syariah Court creature of statute–Whether possible to imply powers lesser than statutorily expressed ones–Res judicata–Wife obtaining divorce decree and ancillary orders in Syariah Court–Wife purporting to apply to High Court for declaratory order to effect Syariah Court order–Application of doctrine to prevent High Court from making declaratory order–Justification for doctrine

The parties, who were Muslim, married and purchased a flat in their joint names. Subsequently, the wife brought divorce proceedings in the Syariah Court against the husband on the ground of desertion. The Syariah Court granted her a divorce, and ordered that the husband's share in the flat be given her and that all moneys taken from his CPF account to purchase the flat be repaid but without interest. As the wife lost all contact with the husband after his desertion, she was unable to effect the transfer of the property. She sought relief in the High Court pursuant to the order made by the Syariah Court. As the wife could not apply under s 14 (1) of the Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed) which only allowed the High Court to enforce its “judgment or order”, the wife proceeded instead to apply to the High Court for a declaration that she was entitled to sole ownership of the flat and then for relief consequential upon the declaration that would, in practical effect, have enforced the Syariah Court order of division of matrimonial assets.

Held, dismissing the wife's application:

(1) The power of the High Court to make a declaratory order was confined to matters which were justiciable in the High Court. After the Syariah Court granted a petitioner's divorce and ordered property transferred accordingly there was no justiciable right that remained thereafter with the petitioner. Further, the order was made by another court of competent jurisdiction and therefore the High Court was bound to accept it as determining the rights of the parties to the property. It would be farcical if the High Court presumed to “confirm” the Syariah Court order by making the declaration sought: at [17], [18] and [19].

(2) It would be unprecedented and contrary to public policy for the High Court to make a declaration about the rights of a party under an order made by another judicial tribunal of competent jurisdiction: at [20].

(3) When a petitioner's cause of action had merged into the Syariah Court order, the rights thereunder could not be resurrected in another tribunal under the guise of a declaratory order, and the tribunal was in danger of violating the doctrine ofres judicata if it made the order she wanted: at [24].

(4) By s 16 (2) of the Supreme Court of Judicature Act, if a civil proceeding came within the jurisdiction of the Syariah Court, the High Court had no jurisdiction to try that proceeding. This dispute came within the jurisdiction of the Syariah Court in having met all the prerequisites of s 35 (2) of the Administration of Muslim Law Act (Cap 3, 1985 Rev Ed): at [28] to [32].

[Observation: The Syariah Court was a creature of statute. Its jurisdiction and powers flowed solely from enacted law and must be spelt out specifically either in the Administration of Muslim Law Act or in other legislation. It was not possible to imply to it powers which were not so expressed simply because the powers sought to be implied were lesser than the powers which had actually been granted to it: at [14].]

Barnard v National Dock Labour Board [1953] 2 QB 18 (distd)

Muhd Munir v Noor Hidah [1990] 2 SLR (R) 348; [1990] SLR 999 (folld)

Rahimah bte Hussan v Zaine bin Yusoff [1995] 1 SLR (R) 239; [1995] 2 SLR 391 (not folld)

Administration of Muslim Law Act (Cap 3, 1985 Rev Ed)ss 35, 52,53

Supreme Court of Judicature Act (Cap 322, 1985 Rev Ed,1993 Reprint)ss 14 (1), 16 (1),16 (2)

Rules of the Supreme Court (Cap 322, R 5, 1990 Ed)O 15r 16

Miranda Yeo (Legal Aid Bureau) for the plaintiff

Defendant in person

Choi Yok Hung, amicus curiae.

Judith Prakash J

1 The parties are both Muslims. They were married in December 1981 and subsequently had three children. In March 1988, the parties purchased the flat known as Block 638, Yishun Street 61 #01-150, Singapore (“the property”) in their joint names. This property was used as the matrimonial home for some time.

2 In 1993, the plaintiff (whom I shall refer to as the wife) brought a case in the Syariah Court asking for a divorce on the ground that the defendant (whom I shall refer to as the husband) had deserted her on 18 August 1990 and had not thereafter maintained her and the family. The court found her complaint to be true and on 18 June 1993, granted the wife a divorce. In addition, the court ordered that custody of the three children be granted to the wife with access to the husband. In relation to the property, the court made the following order (as translated into English):

The flat at Blk 638 Yishun Street 61 #07-150, Singapore 2776 shall be given to the wife. All the CPF contributions of the husband used to purchase the flat shall be returned to his CPF Account without interest. The husband shall transfer his interest in the flat to the wife. All expenses relating to the transfer of ownership shall be borne by the wife.

3 The wife had no contact with the husband after he deserted her. Although she inserted an advertisement in the Straits Times in January 1993 asking him to contact the President of the Syariah Court in order to arrange a reconciliation, the husband did not respond and was not present at the Syariah Court hearing. After the decision, the wife tried to locate him in order to arrange for the transfer of his interest in the property to her. She was unsuccessful. Finally, after the wife had sought the assistance of the Legal Aid Bureau, the husband was traced through his employer. The husband attended once at the Bureau's offices in September 1994 and stated that he was willing to comply with the Syariah Court order relating to the transfer of the property. He furnished the Legal Aid Bureau with a pager number by which he could be contacted. When the wife tried to page him, however, the pager number turned out to be a dead telephone line. The husband made no further effort to contact the wife or to sign any of the papers necessary to effect the transfer.

4 In December 1994, the wife took out this originating summons and sought the following orders:

(a) a declaration that the wife was entitled to sole ownership of the property;

(b) an order that the husband, within 14 days of the making of the order of court, do attend at the Yishun branch office of the Housing and Development Board to execute such documents as would be necessary to effect the transfer of the property solely to the wife and to effectively vest ownership of the property in the wife;

(c) an order that in the event of the husband'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 of and in the name of the husband to effect the transfer to the wife.

5 The...