Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo

• Judge: Goh Joon Seng J
• Judgment Date: 08 May 1996
• Neutral Citation: [1996] SGCA 32
• Citation: [1996] SGCA 32
• Defendant Counsel: The respondent in person
• Published date: 19 September 2003
• Plaintiff Counsel: Jeffrey Chan Wah Teck (Director of Legal Aid)
• Date: 08 May 1996
• Docket Number: Civil Appeal No 93 of 1995
• Court: Court of Appeal (Singapore)
• Subject Matter: Preconditions to award,Syariah court,Relevant considerations,Injunction,Judgments and orders,Remedies,When available to serve personal equities,s 35 Administration of Muslim Law Act (Cap 3),Res judicata,Civil Procedure,Jurisdiction and power,Real controversy,Muslim Law,s 16 Supreme Court of Judicature Act (Cap 322),Whether High Court should have exercised discretion,Declaratory order,Policy arguments,Merger,Declarations regarding legal effectiveness of Syariah Court order and Muslim wife's interest in property on divorce,Conflict of jurisdiction between the High Court and Syariah Court,Equity,Jurisdiction,Inability to enforce orders

Judgment:

YONG PUNG HOW CJ

Cur Adv Vult

This is an appeal from the decision of Judith Prakash J dismissing the application of the appellant, the divorced wife, for a declaration concerning the interest of the wife in a property. The wife was in effect seeking the assistance of the High Court in enforcing an order of the Syariah Court, the court having jurisdiction over the parties, making division of that property. The respondent, the husband, was not represented below, but the judge was assisted by an amicus curiae, Ms Choi Yok Hung.

At the hearing of the appeal, the husband appeared in person. Upon being questioned by the court, it was apparent that he took issue with the merits of the Syariah Court`s order. The Court of Appeal was informed by the husband that he sought to appeal against the decision of the Syariah Court. Leave to appeal out of time was granted by the Appeal Board, but the husband took no further steps in the proceedings thereafter. In the interests of justice, it was decided that the husband ought to be allowed some time to proceed with the appeal on the merits. The court thus ordered that the time be taken for consideration of the appeal, and that no judgment would be handed down for a period of six weeks, which gave the husband time to pursue his appeal in the Syariah Court. That appeal was heard by the Syariah Court Appeal Board on 27 April 1996. The decision of the Board was handed down on 30 April. All that concerns this Court of Appeal was that the Appeal Board ordered that the property be sold with the money remaining after refunds to the parties` respective CPF accounts, and various other payments, to be divided with 40% to the husband and 60% to the wife. Such an order of course meant that there was no basis for the declaration sought. Nonetheless, as the matters raised were of some importance judgment is now given as to whether the declaration sought could have been granted.

The draft of this judgment was prepared before the outcome of the Appeal Board hearing was known. It was, therefore, premised upon the assumption that no variation would be ordered. In the circumstances, particularly as the subjunctive mood reads awkwardly if used too frequently, save for the concluding remarks, the following portions of the judgment of this court will read as if no variation had been made and the wife could still rely on the original Syariah Court order.

Brief facts

The parties are Muslims who married in December 1981, and have three children. They purchased their matrimonial home, a flat, at Blk 638 Yishun St 61 #01-150 in their joint names. In 1993, a divorce was sought in the Syariah Court by the wife, on the grounds of desertion and failure by the husband to maintain both herself and the children. In June 1993, the divorce was granted, and the wife was awarded custody of the children, with access to the husband. The court also ordered that:

the flat ... 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 ... shall be borne by the wife.

The husband was not present at the hearing. As the wife was unable to locate him in order to effect the transfer, she obtained the assistance of the Legal Aid Bureau. Some time later, the husband agreed to transfer the property, but could not afterward be contacted. As she was unable to obtain the husband`s cooperation in the matter, the wife sought by way of originating summons the following orders from the High Court:

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

(2) 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;

(3) 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.

At the first hearing on 21 January 1995, the husband having informed the court that he wanted to instruct counsel, an adjournment was granted. At the adjourned hearing, the husband informed the court that although he could not obtain either a lawyer or legal aid, he still desired to contest the application. The judge, in view of the complex issues she thought would arise, considered it appropriate to appoint an amicus.

The wife`s case below

The wife argued that the Syariah Court order had vested a right to sole ownership in her. The order to effect that vesting was an appropriate application to be heard by the court under O 15 r 16 Rules of the Supreme Court (RSC), and there were no alternative avenues available as time had run out for an appeal to the Appeal Board. She argued that indeed if she could only resort to the Administration of Muslim Law Act (Cap 3), hereafter AMLA, she would be left remediless as the only means available there were either a fine or the imprisonment of the husband. If the husband still declined to transfer the property, she would not obtain the remedy she desired and was entitled to for no order could be made to transfer the property since AMLA gave no power to the Syariah Court, unlike the Supreme Court, to have documents executed where the defendant refuses.

In support of her contentions, the wife placed reliance on the fact that similar orders were granted in the past. The one case in which such an application was declined, Rahimah bte Hussan v Zaine bin Yusoff [1995] 2 SLR 391 , was said to be in error. The wife pointed to the English decision of Barnard & Ors v National Dock Labour Board & Ors [1953] 2 QB 18 for the proposition that the High Court had a discretionary power to intervene in the decisions of statutory tribunals by way of declaration.

The High Court had the jurisdiction to grant such an order, notwithstanding s 16(2) of the Supreme Court of Judicature Act (Cap 322), hereafter SCJA, which prevents the High Court trying a civil proceeding within the jurisdiction of the Syariah Court, as the disposition of property had already been heard and decided by the latter. What was sought was not a decision of such disposition but merely the enforcement of that order.

The amicus curiae`s arguments

The amicus took issue firstly with the wording of the declaratory order sought. She then considered the various statutory provisions, including predecessor Acts of AMLA.

A substantial portion of her arguments was directed towards the power of the court to grant declaratory relief. She noted that there had to be a justiciable right, and that matters res judicata would not be susceptible to declarations. No declaration could also be granted where, as here, exclusive jurisdiction had also been given to another tribunal. Additionally, the rights of the wife were merged in the judgment. Nothing remained. In any event, no jurisdiction existed, as it was excluded by s 16(2) of the SCJA.

The decision

In determining the issue, the judge declined to follow Rahimah bte Hussan v Zaine bin Yusoff . It was accepted by Her Honour that s 14 SCJA only applied to High Court orders. It was thus necessary to examine whether the High Court could grant such an order as desired by the wife. What the wife wanted was a declaration under O 15 r 16 and para 14 of the First Schedule to the SCJA, the requirements of which are that it would provide real relief, that the matter was justiciable, and that exclusive jurisdiction had not been granted to another tribunal.

The primary consideration was whether the wife had a justiciable right. In Her Honour`s view, no justiciable right remained after the order was made by the Syariah Court for no uncertainties existed as to her rights in the property. Furthermore, no real relief would have been effected by such a declaration by itself, which indicates that the discretion of the High Court ought not be exercised in her favour.

The submission of the amicus that the High Court could not make a declaration of rights under an order given by another judicial tribunal was accepted.

The judge rejected the contention of the wife that Barnard assist the court in the present case. The basis of that decision was that the tribunal there had no power to make the orders which it did, while in the present case, the Syariah Court had the power to make the necessary order, and the wife depended on the very validity of that Syariah Court order.

Additionally, the matter was res judicata, and the wife`s rights had been merged in the order issued by the Syariah Court.

As for the argument that the wife would be left remediless, the judge considered that the wife had not even asked for enforcement by the Syariah Court so that it could not be known if the wife had been left remediless. The judge also accepted that the declaratory order sought was defective, as the wife was not entitled to sole ownership as she had not yet made payment.

In any event, Her Honour found that there was no jurisdiction, as the matter fell within the jurisdiction of the Syariah Court, and s 16(2) SCJA applied to exclude the High Court since the dispute was over the disposition of property, and therefore covered by s 35(2)(d) of AMLA.

The appeal

The wife`s arguments on appeal

During the hearing, although the wife`s case had already been submitted earlier, counsel for the wife relied solely upon written skeletal arguments which differedslightly in emphases and treatment from the written case submitted. Both sets of arguments will be considered in this appeal as alternative submissions. These arguments addressed the issues of jurisdiction, the...