Tan Ah Thee And Another (administrators of the estate of Tan Kiam Poh (alias Tan Gna Chua), deceased) v Lim Soo Foong

• Jurisdiction: Singapore
• Court: High Court (Singapore)
• Judge: Judith Prakash J
• Judgment Date: 27 April 2009
• Neutral Citation: [2009] SGHC 101
• Citation: [2009] SGHC 101
• Subject Matter: Family Law,Power,Whether marriage was voidable,Whether marriage was void,Husband had since passed away,Strangers to marriage alleging that husband and wife never consummated marriage,Void marriage,Courts and Jurisdiction,Strangers to marriage alleging that wife exercised undue influence over husband to procure marriage,Strangers to marriage alleging that wife married husband to gain share in husband's estate,High court,Whether marriage could be declared void on application by strangers to marriage,Voidable marriage,Whether High Court possessed power to make bare declarations of right
• Date: 27 April 2009
• Plaintiff Counsel: Julian Tay and Alma Yong (Lee & Lee)
• Defendant Counsel: Nicholas Narayanan (Nicholas & Co)
• Published date: 06 May 2009
• Docket Number: Suit No 775 of 2008 (Registrar's Appeals Nos 48 and 49 of 2009)

27 April 2009 Judgment reserved.

Judith Prakash J:

1 These are appeals by both parties against a decision made by the learned Assistant Registrar, Ms Chung Yoon Joo (the “AR”), in respect of the defendant’s application vide Summons 5225 of 2008 (“SUM 5225/2008”) to strike out the plaintiffs’ claim. By this action, the plaintiffs as administrators of the estate of the Tan Kiam Poh @ Tan Gna Chua (“the deceased”) are seeking a declaration that there was no valid marriage between the deceased and the defendant.

Background

The plaintiffs’ case

2 The following recital of the background facts is taken from the statement of claim and the affidavit filed on behalf of the plaintiffs. The defendant does not accept that all the facts are correct but her rebuttals are not relevant for present purposes. As the appeals concern a striking out application, I have to proceed on the basis that the facts as alleged by the plaintiffs are correct.

3 The deceased was married twice. His first wife was one Mdm Koh Siew Kim @ Koh Hoon Eng (“Mdm Koh”). This marriage ended with Mdm Koh’s death on 20 November 1994. During their marriage, the deceased and Mdm Koh had six children (“Mdm Koh’s children”). The plaintiffs, who are two of Mdm Koh’s children, portrayed the deceased’s relationship with Mdm Koh as loving and the family as a close-knit one. After Mdm Koh died, the deceased became depressed and his health degenerated rapidly.

4 Unknown to the plaintiffs, the deceased had previously had an extramarital relationship with the defendant, and, as a result, the defendant had given birth to their son (“TGC”) in 1952. This fact was only revealed to the plaintiffs during Mdm Koh’s wake. The defendant and TGC then sought to re-establish their relationship with the deceased.

5 Some time thereafter, the defendant and TGC moved into the deceased’s family home which, at that point of time, was solely occupied by the deceased. The defendant and TGC then systematically took control of the person and property of the deceased to the exclusion of Mdm Koh’s children. The defendant and TGC also unduly restricted the access of Mdm Koh’s children to the deceased and by the exercise of undue influence caused the deceased to transfer various properties and assets to them.

6 The plaintiffs allege that on 11 March 1996, the defendant, with the assistance of a lawyer, caused a marriage to be solemnised between herself and the deceased. At that point of time, he was 81 years old, wheel-chair bound and suffering from Parkinson’s disease. On or about 5 January 2000, TGC caused the deceased to execute a will which made provision for the defendant and TGC only (“the 2000 Will”). Mdm Koh’s children were entirely excluded from the 2000 Will. The deceased passed away on 25 July 2000 at the age of 85.

7 On 16 October 2003, the plaintiffs commenced legal proceedings to seek, inter alia, a declaration that the 2000 Will was invalid. On completion of the hearing, the High Court granted this declaration and ordered that the estate of the deceased be distributed according to the provisions of the Intestate Succession Act (Cap 146, 1985 Rev Ed) (“ISA”). It is to be noted that under s 7 of the ISA, the defendant, as spouse of the deceased, would be entitled to one-half of the deceased’s estate.

8 Pursuant to the order made by the High Court, the plaintiffs then applied for and obtained Letters of Administration to administer the deceased’s estate. The Grant of Letters of Administration was extracted and issued to the plaintiffs jointly on 17 January 2008.

9 In the present action, the plaintiffs pray for the following reliefs:

(a)	A declaration that there was no valid and subsisting marriage between the deceased and the defendant;
(b)	Further and/or in the alternative, a declaration that the marriage between the deceased and the defendant is null and void.

As the plaintiffs’ counsel candidly admitted in his oral submissions before the AR, the “[w]hole purpose of [the] action is to invalidate the marriage so that [the] defendant would have no share in the estate of [the] deceased.”

10 In their statement of claim, the plaintiffs provide three bases for granting the declarations as sought. First, it is asserted that the marriage was voidable under section 106(a) of the Women’s Charter (Cap 353, 1997 Rev Ed) (the “Charter”) as it had never been consummated. Second, the court is urged to find the marriage void because the marriage was procured by the actual or presumed undue influence of the defendant over the deceased. The third contention is that the marriage ought to be found void for being a sham marriage against public policy as the defendant’s sole or predominant motive in registering the marriage was to revoke the deceased’s will.

11 By Summons 5225/2008, the defendant applied to strike out the plaintiffs’ Writ of Summons and Statement of Claim, pursuant to Order 18, rule 19(1)(a) of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) (“the Rules”), on the basis that the statement of claim disclosed no reasonable cause of action.

The AR’s decision

12 After considering the arguments raised by both parties, the AR struck out the plaintiffs’ action insofar as it was based on non-consummation as she was of the view that only parties to the marriage may seek to avoid a voidable marriage on the ground of non-consummation. However, she refused to strike out the other bases put forward by the plaintiffs to support their claim that the marriage was void.

13 The plaintiffs have appealed against the first part of the AR’s decision while by her appeal, the defendant is seeking to strike out the whole action.

Submissions, analysis and decision

14 As is well known, O 18 r 19(1)(a) of the Rules empowers the court to, inter alia, strike out any pleading which discloses no reasonable cause of action or defence. The standard which must be satisfied before the court can exercise this power was clearly set out in the Court of Appeal case of Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin [1998] 1 SLR 374. In that case, Yong Pung How CJ held as follows:

18 In general, it is only in plain and obvious cases that the power of striking out should be invoked. This was the view taken by Lindley MR in Hubbuck & Sons v Wilkinson, Heywood and Clark [1899] 1 QB 86 at p 91. It should not be exercised by a minute and protracted examination of the documents and facts of the case in order to see if the plaintiff really has a cause of action. The practice of the courts has been that, where an application for striking out involves a lengthy and serious argument, the court should decline to proceed with the argument unless, not only does it have doubts as to the soundness of the pleading but, in addition, it is satisfied that striking out will obviate the necessity for a trial or reduce the burden of preparing for a trial.

…

21 The guiding principle in determining what a “reasonable cause of action” is under O 18 r 19(1)(a) was succinctly pronounced by Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 All ER 1094. A reasonable cause of action, according to his lordship, connotes a cause of action which has some chance of success when only the allegations in the pleading are considered. As long as the statement of claim discloses some cause of action, or raises some question fit to be decided at the trial, the mere fact that the case is weak and is not likely to succeed is no ground for striking it out. Where a statement of claim is defective only in not containing particulars to which the defendant is entitled, the application should be made for particulars under O 18 r 12 and not for an order to strike out the statement.

Of course, insofar as the plaintiffs here are merely seeking declarations from the court, they, strictly speaking, do not need to plead a cause of action. They must, however, provide a legal basis on which the declarations can be made. If the legal basis suggested is so unsustainable that it is plain and obvious that the plaintiffs’ case has no chance of success, the plaintiffs’ statement of claim may be struck out.

15 At this point, the preliminary issue of whether the High Court in the exercise of its general jurisdiction rather than in the exercise of its matrimonial jurisdiction possesses the power to make the declarations sought by the plaintiffs must be addressed. In Lawrence Au Poh Weng v Annie Tan Huay Lian, [1972] 2 M.L.J. 124, the High Court decided that it had no jurisdiction to make any of the declarations of marital status sought by the parties. The first and second plaintiffs there both sought declarations that the first plaintiff was not married to the defendant and that the plaintiffs were, instead, married to each other. The defendant, on the other hand, sought a declaration that she was married to the first plaintiff. No substantive reliefs were sought. Winslow J. was unable to pin point a statutory provision which gave him the express power to grant a bare declaration. The judge found no provision in either the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”) or the Charter, as they stood then, which gave the High Court such a jurisdiction. The earlier cases of Then Kang Chu v Tan Kim Hoe, [1926] SSLR 1 and Florence Mozelle Meyer v Issac Manasseh Meyer, [1927] SSLR 1 had come to a similar conclusion on the basis of the legislation then in force. In other cases, for example, Moh Ah Kiu v Central Provident Fund Board [1992] 2 SLR 569 (“Moh Ah Kiu”), the issue was not expressly argued and all parties took the view that the court could grant the declaration asked for.

16 The plaintiffs argued and I agree that whatever may have been the previous position, since the 1993 amendments to the SCJA, it has been plain that the High Court has the power to make declarations of right. This power is provided for in s 18, read together with the First Schedule, of the SCJA. The relevant provisions read as follows:

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