Syed Ahmad Jamal Alsagoff (administrator of the estates of Syed Mohamad bin Hashim bin Mohamad Alhabshi and others) and others v Harun bin Syed Hussain Aljunied and others

• Jurisdiction: Singapore
• Judge: Aedit Abdullah JC
• Judgment Date: 17 April 2017
• Neutral Citation: [2017] SGHC 85
• Published date: 21 April 2017
• Date: 17 April 2017
• Year: 2017
• Hearing Date: 11 July 2016
• Subject Matter: Jurisdiction,Parties,Joinder,Civil Procedure,Inherent
• Plaintiff Counsel: Tan Teng Muan and Loh Li Qin (Mallal & Namazie)
• Defendant Counsel: The sixth respondent in person.,Kirpal Singh and Osborne Oh (Kirpal & Associates)
• Court: High Court (Singapore)
• Citation: [2017] SGHC 85
• Docket Number: Originating Summons No 1122 of 1992 (Summons No 600039 of 2015)

Aedit Abdullah JC: Introduction

The applicants in this case (“the Applicants”) sought leave under O 15 r 6(2)(b)(ii) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) and/or the court’s inherent jurisdiction to intervene in a matter that was heard and concluded some 25 years ago, in order to set aside the order of court made in relation to that case (“the Original Order”) and to make consequential rectifications to the Register of Deeds. They argued, inter alia, that such intervention was justified by two High Court decisions in 1997 which purported to identify a defect in the basis of the Original Order, and was indeed necessary to forestall any repercussions that the said order may have in relation to certain properties that were subject of an ongoing suit, vide, Suit No 263 of 2010.

Having heard the parties, I declined to grant leave to intervene largely because of the long period of time that had lapsed since the erstwhile conclusion of those proceedings. The Applicants have appealed.

Background

This application for leave to intervene was one chapter in a long-drawn litigation over the estate (“the Estate”) of Syed Ahmad Bin Abdulrahman Bin Ahmat Aljunied (“the Testator”). The Estate consisted of certain properties located in the Upper Dickson Road area which were subject of ongoing dispute between the parties (“Disputed Properties”).

The parties

In the present application, the Applicants were the administrators of several estates which purported to hold leasehold interests in the Disputed Properties.¹

The respondents consisted primarily of the former and present trustees of the Estate (“the Respondents”). In particular, the fourth to seventh respondents were former trustees of the Estate, while the first and second respondents were the present trustees of the same. As the fourth to seventh respondents were all undischarged bankrupts, summons for this application was also served on the Official Assignee.² The third respondent was a company to which the fourth to seventh respondents as former trustees purportedly conveyed the reversionary and leasehold interests in the Disputed Properties in 1994. The third respondent had, however, been struck off the Register of Companies sometime in 2010.³ In the circumstances, only the first, second, and sixth respondents actively participated in this application.

Consolidated Suit No 263 of 2010

The present application was related to another matter, vide, Consolidated Suit No 263 of 2010 (“Suit 263”), which I had dealt with separately in Syed Ahmad Jamal Alsagoff v Harun bin Syed Hussain Aljunied [2016] 3 SLR 386. In Suit 263, the plaintiffs sought, inter alia, a declaration that their leasehold interests in the Disputed Properties subsisted and had not been validly terminated by the defendants. I granted the declaration, although the plaintiffs’ claims in fraud, conspiracy, and intermeddling as trustees de son tort were dismissed. The parties to Suit 263 and the present application were the same – the Applicants here were the plaintiffs in Suit 263, and the Respondents here were the defendants in that case. The heart of the Applicants’/plaintiffs’ contention in the two proceedings also remained consistent – that the Respondents/defendants had deprived them of their rightful entitlement to leasehold interests in the Disputed Properties.

Originating Summons No 1122 of 1992

In this application, the Applicants sought leave to intervene in a concluded matter, vide, Originating Summons No 1122 of 1992 (“Original Proceedings”). In that case, the fourth and fifth respondents had obtained on an ex parte basis the Original Order, dated 27 November 1992, which was thereafter registered against the Disputed Properties in the Registry of Deeds. The Original Order granted three prayers in terms of the application, which may be summarised as follows:⁴ That the fourth and fifth respondents be appointed as trustees of the Estate; That the Original Order be registered in the Registry of Deeds, and that upon such registration, the appointment of sixth and seventh respondents as trustees to the Estate in the Deed of Appointment of New Trustees dated 24 July 1992 be confirmed; and That the “land hereditaments and premises described in the schedule annexed hereto subject to the trusts of the said Will of [the Testator]… do vest in the said [fourth to seventh respondents] for the estate therein which would now be vested in [their derivative predecessors if they or any one of them were now living]”.

Two subsequent decisions of the High Court

The Applicants heavily relied on two decisions of the High Court concerning assets of the Estate, which were decided subsequent to the conclusion of the Original Proceedings.

First, in Syed Salim Alhadad v Dickson Holdings Pte Ltd [1997] 1 SLR(R) 228 (“Dickson Holdings”), the plaintiffs as purported trustees of the Estate sought to forfeit the defendants’ leases over four properties in the Estate. These properties, while part of the same estate, did not overlap with the Disputed Properties. The defendants objected to the plaintiffs’ title to sue on the ground that, despite the Original Order, the plaintiffs were not the properly appointed trustees of the Estate. The High Court held that the defendants could intervene in the Original Proceedings and set aside the Original Order to the extent that it related to the four properties there disputed, on grounds that, inter alia, the plaintiffs failed to make full and frank disclosure of material facts to the court in the Original Proceedings. The salient parts of the court’s decision warrant reproduction in full: 41 … I accept that in the ordinary case, any change in the ownership or trusteeship of the reversion does not affect or concern the leaseholder… However, in the absence of an estoppel, the tenant or the leaseholder is not prevented from challenging the title of the landlord… In this case, the plaintiffs rely on the court order to assert that they are the properly appointed trustees of the testator’s estate. It is open to the defendants to challenge that assertion. If this challenge involves a review of the propriety of the court order and the manner in which that order was procured, I am sure it is open to the defendants to ask the court to undertake such a review. They have a sufficient interest to question the propriety of the application in the 1992 proceedings and the consequent order in so far as they affect the four properties owned by them… 42 I do not think that it matters that the defendants were not joined as parties to the 1992 proceedings. If they have a sufficient interest in the subject matter of the proceedings the court will allow them to intervene in those proceedings. I also do not accept Mr Chung’s point that the defendants have waited too long to question the validity of the order. I accept Mr Dyne’s explanation that time was required for them and their advisers to investigate the matter, which has such an involved history, to put them in a position to show what was wrong with the proceedings. 43 Where there is a wrong, there is a remedy, or there ought to be one. I have no doubt that, given the circumstances in which the order was procured, it is open to being set aside, at least in so far as it relates to the four properties concerned…

Notably, the High Court in Dickson Holdings opined that the defendants had taken “too timid a position when they say that they cannot apply to set the order aside because they were not a party to those proceedings” (at [43]), and invited them to file an application to intervene and set aside the Original Order to the extent of the four properties there disputed to “put the procedural aspects in order”, without need for further evidence or submissions (at [44]).

The second decision was Koh Beng Swee v Syed Jafaralsadeg bin Abdul Kadir Alhadad [1997] SGHC 317 (“Koh Beng Swee”). Here, the plaintiffs sought a declaration of their leasehold entitlement to certain properties of the Estate, which did not overlap with the Disputed Properties or with the properties subject of Dickson Holdings. In respect of the issue of the defendants’ capacity to act as trustees of the Estate and defend the proceedings, the High Court relied on Dickson Holdings for the proposition that the defendants’ appointment was defective and opined as follows (at [81]):

… Like Dickson Holdings Pte Ltd in Suit No. 1837 of 1994 and other leaseholders whose interests have been adversely affected thereby, the plaintiffs should take steps to intervene in OS 1122 of 1992 before applying to set aside the 1992 Order made against the properties.

Accordingly, the High Court in Koh Beng Swee granted the various declarations sought by the plaintiffs on the ground that the defendants’ title “had been impugned [and] their capacity to act as trustees for the [Estate] is questionable” (at [93]).

Originating Summons No 69 of 1998

In 1998, in light of the ensuing litigation over the validity of appointment of the fourth to seventh respondents as trustees under the Original Order, the first respondent and one Sharifah Fatimah Binte Abdul Kader Aljunied (“Sharifah”), who were beneficiaries of the Estate, applied to court to be substituted as trustees.⁵ By an order of court dated 10 February 1998 (“the Subsequent Order”) made in Originating Summons No 69 of 1998, the first respondent and Sharifah were so appointed as the new trustees of the Estate in substitution of the fourth to seventh respondents who were discharged and removed as trustees.⁶ The fourth to seventh respondents were named as respondents in this application, but they did not object to the substitution.⁷

The Notice of Appointment of New Trustees in 2009

In 2009, the trustees of the Estate under the Subsequent Order, ie the first respondent and Sharifah, together with the second respondent, filed a Notice of Appointment of New Trustees dated 19 October...