Syed Ahmad Jamal Alsagoff (administrator of the estates of Shaikah Fitom bte Ghalib bin Omar Al-Bakri and others) and others v Harun bin Syed Hussain Aljunied and others and other suits

• Jurisdiction: Singapore
• Judge: Aedit Abdullah JC
• Judgment Date: 09 November 2016
• Neutral Citation: [2016] SGHC 252
• Plaintiff Counsel: Tan Teng Muan and Loh Li Qin (Mallal & Namazie)
• Date: 09 November 2016
• Docket Number: Suits No 263, 264 and 271 of 2010
• Hearing Date: 14 December 2015,01 July 2015,30 June 2015,07 January 2016,02 July 2015
• Subject Matter: Forfeiture,Evidence,Distress for rent,Trusts,Termination of leases,Conspiracy,Trustees,Proof of evidence,Trustee de son tort,Intermeddling in trust property,Fraud and deceit,Standard of proof,Submission of no case to answer in civil matter,Landlord and tenant,Tort,Misrepresentation
• Year: 2016
• Defendant Counsel: The third, fourth, fifth and seventh defendants unrepresented.,The sixth defendant in person,Kirpal Singh and Osborne Oh (Kirpal & Associates)
• Court: High Court (Singapore)
• Citation: [2016] SGHC 252
• Published date: 15 November 2016

Aedit Abdullah JC: Introduction

In this case the Plaintiffs sought to assert their leasehold interests granted to their predecessors in title over three adjacent properties, which the Defendants purported to have terminated previously. The Plaintiffs further claimed in fraud, conspiracy, and intermeddling against the Defendants. At the trial, only one witness testified for the Plaintiffs. Some of the Defendants did not participate in the proceedings, but those who did (“the active Defendants”) submitted that there was no case to answer and adduced no evidence on their part. Having considered the evidence and submissions, and bearing in mind the Defendants’ election, I found that the Plaintiffs’ claim asserting the subsistence of their leasehold interests was successful, but dismissed their claims in fraud, conspiracy and intermeddling. The Plaintiffs have appealed.

Background

The present suit was a consolidated suit bringing together three different suits in respect of three properties: Suits No 263, 264 and 271 of 2010.

The three properties at the centre of the disputes were No. 18, 20 and 22 Upper Dickson Road (“No. 18”, “No. 20” and “No. 22” respectively, “the properties” collectively). They were located adjacent to each other. Leasehold interests were carved out of the freehold interests of the three properties in the late 19th century. A chronology of events gives the best overview of the state of affairs between the parties: In 1877, a lease for 999 years (“the lease”) was granted for the properties by one Kavena Koonjan Chitty to Moon Meyna Chitty. In 1892, one Syed Ahmad bin Abdulrahman bin Ahmat Aljunied (“Ahmad Aljunied”) acquired the reversionary interest over the properties. His estate had apparently not been fully administered. The 4th to 7th Defendants asserted that they were the trustees of his estate in the mid-1990s (“the Former Trustees”). The 1st and 2nd Defendants asserted that they were the present trustees of that estate. In 1969, the leasehold interests were according to the Plaintiffs assigned as follows: No. 18: This was assigned to one Syed Mohamed bin Hashim bin Mohamad Alhabshi (“Mohamad Alhabshi”). Mohamad Alhabshi passed away in 1973. The 4th and 5th Plaintiffs claimed that they were the beneficiaries, directly and indirectly, of the estate of Mohamad Alhabshi, represented by the 1st Plaintiff as their attorney. No. 20: This was assigned to Shaikh Ali bin Abdulgader Harharah (“Ali Harharah”). A one third-share in the leasehold interest was supposedly assigned by Ali Harharah to one Noor binti Abdulgader Harharah (“Noor Harharah”). The two passed away in the 1990s. The 1st and 2nd Plaintiffs claimed to be administrators of the estate of Noor Harharah. Grant of probate in respect of the estate of Ali Harharah was made in 2013 to the 1st and 3rd Plaintiffs. No. 22: This was assigned to one Shaikhah Fitom binte Ghalbi bin Omar Al-Bakri (“Fitom Al-Bakri”). Fitom Al–Bakri passed away in 1973. In February 2015, the 1st plaintiff was appointed the administrator of Fitom Al-Bakri’s estate. It was noted that the purported present beneficiaries of the leasehold interests were generally abroad.

The Plaintiffs sought, among other things, a declaration that the lease subsisted and that the leasehold interests in the three properties have not been extinguished. The version put forward by the Defendants was that the lease was determined as the covenants in it were not observed. The Defendants alleged that the Plaintiffs (and their predecessors in title) had for years, in breach of the covenants, failed to pay the rent of one Spanish Dollar on the 1st of January of every year without demand to the lessor; not used the properties as dwelling houses; not obtained the lessor’s permission on the change of use of the properties; not obtained the lessor’s consent in respect of a partial assignment of the leasehold interests of No. 20; and had not been able to account for the loss of 218 square feet of land from the properties. The Former Trustees had supposedly notified the Plaintiffs of these breaches by a letter in July 1993. The Defendants said that the Former Trustees were entitled, by reason of the Plaintiffs’ breaches of the lease, to forfeit the lease, and had so became vested with both the reversionary as well as the leasehold interests in the three properties.

In 1994, the 4th to 7th Defendants, as the Former Trustees, purportedly conveyed both the reversionary interests and the leasehold interests in the properties to the 3rd Defendant (“the Conveyance”). This was followed by a Deed of Rectification and Confirmation dated 1 November 1994 (“the Confirmation”), between the 4th to 7th Defendants on one side, and the 3rd Defendant on the other.

There were various contentions made by both sides about the estates of the various deceased persons, and who was a proper trustee of those estates. These were not generally material in the present proceedings, and any challenge to the status of the Plaintiffs or their predecessors had to be by way of separate proceedings. There were also other proceedings relating to issues relevant for the present action. For instance: In 1994, the 3rd Defendant sought to obtain possession of the properties in OS No. 1234 of 1994. Then in 1995, Ali Harharah, together with some others, took out proceedings against the 3rd to 7th Defendants in OS No. 1052 of 1995 to set aside the Conveyance and Confirmation. An order was made for possession of the properties in OS No. 1234 of 1994, and the application for OS No. 1052 of 1995 was dismissed. Subsequently, in Summons No. 4805 of 1999 and Summons No. 4961 of 1999, Kamal Harharah, a son of Ali Harharah, applied to set aside that order for possession and the order dismissing OS No. 1052 of 1995 respectively. Lai Siu Chiu J granted both applications in respect of No. 20, but ordered the status quo to be maintained as regards No. 18 and No. 22. This, the Plaintiffs said, was so that representatives could be appointed for the estates of Mohamed Alhabshi and Fitom Al-Bakri before the relevant orders could be made for No. 18 and No.22. In Summonses No. 2248, 2250 and 2249 of 2010, Belinda Ang J, in a judgment reported as Syed Ahmad Jamal Alsagoff (administrator of the estate of Noor bte Abdulgader Harharah, deceased) and ors v Harun bin Syed Hussein Aljuied (alias Harun Ajunied) and others and other suits [2011] 2 SLR(R) 661 (“the 2011 striking out decision”), determined an application for striking out which touched on the relationship between the present suit and the earlier proceedings. In Suit No. 424 of 2011, the 1st and 2nd Defendants of the present action brought a claim against the 3rd Defendant for failure to pay the full consideration for the conveyance of the reversionary interests and the leasehold interests in the three properties. I gave my decision for Suit No. 424 of 2011 concurrently with my decision for the present action. OS No. 1122 of 1992 involved an application by the 4th and 5th Defendants to have themselves appointed trustees of the trusts of the will of Ahmad Aljunied. Certain related orders were granted. This was the subject of an intervention application before me, which I dealt with separately.

At the close of the Plaintiffs’ case, the active Defendants submitted that there was no case to answer, and so did not call any evidence. They elected to so submit knowing the consequences of their choice. As it was then, the only evidence admitted was that of the Plaintiffs’ sole witness, Syed Ahmad Jamal Alsagoff (“Jamal”), who was the 1st Plaintiff in this action and managing agent of the other plaintiffs.

The Plaintiffs’ Case

The Plaintiffs’ primary contention was that the Defendants had over many years deprived them of their inheritance, ie the leasehold interests in the properties. The Plaintiffs asserted that they were the beneficial owners of the leasehold interests, and claimed that the Conveyance and Confirmation were executed either in fraud and/or conspiracy. It was also claimed that there was intermeddling of the estates, rendering the Defendants constructive trustees. In terms of specific remedies, the Plaintiffs sought declarations that the lease remained valid with the beneficial leasehold interests vesting in them, and the expunging of the various interests registered by the Defendants in consequence of the Conveyance being null and void.

The Plaintiffs said that the lease subsisted because under the terms of the lease, the remedy for non-payment of the annual rent was to levy execution on goods and chattels found on the properties to recover the rent in arrears, and not re-entry qua forfeiture as claimed by the Defendants. Furthermore, there was nothing adduced in evidence as to what the outstanding rent was since this was expressed to be in Spanish Dollars in the lease, and the Spanish Dollar had ceased to be in use. There was also uncertainty as to who, if anyone, could have continued to collect the rent, as there was an extended period of time between 1958 and 1992 during which no trustee was appointed under the estate of Ahmad Aljunied.

The essence of the Plaintiffs’ case was that the 4th to 7th Defendants schemed to dispose of the reversionary interests of the properties free of the leasehold interests on the basis that the leasehold interests had been forfeited. Various allegations were made concerning the Defendants. The 4th to 7th Defendants committed fraud when they obtained appointment as trustees of the trusts of the will of Ahmad Aljunied even though they had no basis, by concealing facts from the judge in an application under OS No. 1122 of 1992. The Defendants also insisted that they had forfeited the lease even though they knew that they had no right to do so; they alleged that the Plaintiffs had breached the terms of the lease by failing, inter alia, to pay the rent, and that they had in 1993 issued notices to...