Arif Rahim Valibhoy v Majlis Ugama Islam Singapura (Mohamed Shariff Valibhoy and others, non-parties)

[1] The four trustees of the Valibhoy Charitable Trust (“VCT”), a trust administered by the respondent, Majlis Ugama Islam Singapura (“MUIS”), were unable to work together. On 12 June and 12 August 2021, MUIS made orders which resulted in the removal of the four trustees. One of these former trustees, Mr Arif Rahim Valibhoy (“the Applicant”), sought and obtained leave to commence judicial review of the orders made. He then filed his summons without serving any of the papers on the other three ex-trustees, Mr Mohamed Shariff Valibhoy, Mr Imran Amin Valibhoy and Mr Vali Mohamed Shariff Valibhoy (collectively, “the OETs”). The OETs subsequently filed HC/SUM 1671/2023 (“SUM 1671”) for the papers to be served on them, and to be joined as parties or allowed to participate as non-parties.

[2] These grounds of decision engage the questions of whether, when leave has been granted to one of the former trustees to commence judicial review in respect of a particular decision involving multiple trustees, the other former trustees who were also party to the orders made would be parties to be served with the papers relevant to judicial review proceedings under O 53 r 2(3) of the Rules of Court (2014 Rev Ed) (“ROC”); and further, whether the court may join such parties under O 15 r 6 of the ROC, and if so, the capacity in which they ought to be joined and the directions relevant.

[3] The VCT is a Muslim charitable law trust (also known as a wakaf) set up by the last will and testament of Mr Haji Vali Mohamed Bin Jooma (who was also known as Valibhoy Jumabhoy) dated 12 April 1948. Under the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed), all wakafs are administered by MUIS, a statutory body.

[4] The Applicant and the OETs, acting as the VCT’s four trustees managing its affairs, had been increasingly unable to cooperate with each other since 2013. In January 2015, the OETs engaged solicitors and wrote to the Applicant to invite him to retire. He did not do so. The OETs proceeded to file HC/OS 355/2015 (“OS 355”) seeking the removal of the Applicant as a trustee of the VCT. OS 355 was struck out on the ground that the administration of wakafs, including the appointment, management and removal of trustees, fell within the exclusive domain of MUIS. The High Court held that it had no jurisdiction to hear and determine OS 355 (see Mohamed Shariff Valibhoy and others v Arif Valibhoy [2016] 2 SLR 301 at [97]–[98]).

[5] In May 2016, the OETs filed a complaint to MUIS to seek the Applicant’s removal as a trustee of the VCT, alleging unreasonable conduct on the part of the Applicant in managing the trust. In October 2016, the Applicant filed a cross-complaint against the OETs seeking their removal as trustees of the VCT, alleging “serious breaches” of duties and “numerous instances of mismanagement of the VCT” by the OETs. In accordance with MUIS’ wakaf dispute resolution framework, MUIS referred the Applicant and the OETs to mediation which the parties attended in January 2018. When the mediation proved unsuccessful, both complaints were referred to an Inquiry Committee constituted by MUIS. Both sides were represented by counsel and filed affidavits and submissions for the inquiry, and counsel made oral arguments during the hearing on 12 December 2018. There was no cross-examination of witnesses.

[7] The Applicant and the OETs could not agree on an Agreed Operating Protocol despite extensions of time being granted. Eventually, by a letter dated 12 August 2021, MUIS directed the removal of the Applicant and the OETs as trustees of the VCT with effect from 1 December 2021 (“the Removal Decision”). The reason stated was their failure to tender an Agreed Operating Protocol pursuant to MUIS’ earlier direction on 12 June 2019.

[10] The Applicant accordingly filed HC/SUM 1155/2023 (“SUM 1155”) on 20 April 2023 for the following:

(c) A declaration that the Applicant’s legal costs and disbursements on an indemnity basis in respect of the dispute resolution proceedings be reimbursed from the VCT.

He did not serve any papers on the OETs despite their request that he do so.

[14] The OETs’ request for service rested on O 53 r 2(3) of the ROC, which reads:

[17] Pertinently, the words of the provision expressly state “directly affected”, and not “adversely affected”. In insisting that adverse impact was necessary, the Applicant rested on dicta in the Malaysian High Court case of Ottavio Quattrocchi v Menteri Dalam Megeri, Malaysia & Ors [2001] 6 MLJ 561 (“Ottavio”). There, while referring to a Hong Kong case, Tomlin v Preliminary Investigation Committee of the Dental Council of Hong Kong [1995] 1 HKC 533, Abdul Azziz J stated at [15]: “In other words, the defeat of the investigation committee in the judicial review would have had adverse consequences on the dentist”; and again at [16], “the adverse consequences on him of the successful outcome of the judicial review made him a person directly affected by the application for judicial review”.

[18] Nevertheless, it is clear from Ottavio that Azziz J regarded “adverse consequences” simply as an example of being “directly affected”. While on the facts in Ottavio, the dentist would experience adverse consequences and Azziz J therefore held that he was directly affected, it does not follow that “adverse consequences” and being “directly affected” become, in this analysis, the same concept. Indeed, a reading of Ottavio makes clear that Azziz J referred to and applied Regina v Rent Officer Service and another, ex parte Muldoon [1996] 1 WLR 1103 (“Muldoon”), a case authority cited by the OETs and MUIS, where the phrase “directly affected” was explained. There, at 1105, Lord Keith elaborated, in interpreting the meaning of “directly affected” under O 53 r 5(3) of the English Rules of the Supreme Court 1965 (which is in pari materia with O 53 r 2(3) of the ROC), “[t]hat a person is directly affected by something connotes that he is affected without the intervention of any intermediate agency”.

[20] Both of these arguments are not consistent with the Singapore Court of Appeal decision in Golden Hill Capital Pte Ltd and others v Yihua Lifestyle Technology Co, Ltd and another [2021] 2 SLR 1113 (“Golden Hill”), where Muldoon was referred to with approval and explained, albeit in the context of O 57 r 3(6) regarding service of a notice of appeal to parties “directly affected” by the appeal. The Court of Appeal stated at [46] that “the word ‘affected’ entails some kind of impact on the status and legal rights of the party in question” [emphasis in original]. The Applicant relied on Golden Hill but did not explain how it was, in his view, “clear” that the search for adverse consequences replaced the test for “directly affected”.

[21] The threshold, as expressed in Golden Hill, does not reflect the need for adverse consequences on a party requesting to be served. Impact on status and legal rights is sufficient to satisfy the “directly affected” test. In the present case, the legality of the MUIS Decisions affected the OETs’ legal rights. It was incorrect for the Applicant to assert that “the OETs are not affected at all by a successful outcome of the OS”. It was the OETs’ application to MUIS that culminated in the MUIS Decisions, which affected all four ex-trustees equally. These orders were not directed at any particular ex-trustee. If the removal on the basis that the trustees had not agreed to an operating protocol was ultra vires, their legal right to pursue the issue of their own status would become relevant. Therefore, the proceedings were of direct relevance to them.

[22] The question as to whether it was appropriate for the OETs to be joined required consideration of the following queries:

(a) whether O 15 applies to proceedings under O 53;

(b) if so, whether the requirements of O 15 were met;

(c) if so, in what capacity the OETs should be joined; and

(d) the best method for them to advance their case in an orderly manner.

[23] The OETs relied upon O 15 r 6(2)(b) of the ROC, which provides:

[24] MUIS agreed with the OETs that O 15 r 6 applies to O 53 proceedings.

[26] The Applicant’s argument appeared to be that since O 53 r 4 confers the right of an opposing non-party to be heard, it excludes by implication the court’s general discretion to join parties under O 15 r 6 of the ROC. He relied on the Malaysian Federal Court decision of Majlis Agama Islam Selangor v Bong Boon Chuen & Ors [2009] 6 MLJ 307 (“Bong Boon Chuen (FC)”) and a line of Malaysian authorities following Bong Boon Chuen (FC).

[29] My interpretation of O 53 r 4 is consistent with the High Court decision of Manjit Singh s/o Kirpal Singh and another v Attorney-General [2013] 2 SLR 1108 (“Manjit Singh”). In Manjit Singh, the applicants, who were advocates and solicitors, sought leave, pursuant to O 53 r 1 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) to commence judicial proceedings to quash the Chief Justice’s refusal to revoke his appointment of a Disciplinary Tribunal to hear and investigate a complaint against them. The non-party, the Law Society of Singapore, requested to hold a watching brief. The applicants objected to this by drawing the court’s attention to O 53 r 4 of the ROC. The applicants argued that, since r 4 conferred a right to be heard to a proper person who wished to oppose an application under O 53 r 2(1), but there was no equivalent rule giving a non-party a right to be heard on an application under O 53 r 1, the court had no discretion to permit the Law Society to attend the hearing. Vinodh Coomaraswamy JC (as he then was) rejected this argument. Inter alia, Coomaraswamy JC observed at [16] that “the purpose of O 53 r 4 is to give a right to a non-party on an application under O 53 r 2 rather than to take away a right from a non-party on other applications.” [emphasis added]

[30] In other words, O 53 r 4 allows a person who has not been served papers a right to be heard in opposition if he is a proper party to be heard. It does not take away rights from parties who have been served papers, and it does not abrogate the court’s powers under O 15 r 6.

[33] The Applicant further argued that O 15 r 6 of the ROC could not be used to bypass the requirement for leave under O 53 r 1(1)(b). He relied on Amarjeet Singh v Public Prosecutor [2021] 4 SLR 841 (“Amarjeet Singh”). Amarjeet Singh was first raised by MUIS in the context of arguing why the OETs should not be allowed to file a counterclaim or third-party notice (a point I deal with later).

[34] There, the applicant had been arrested and charged for using criminal force on a police officer. His case was that he had initially pleaded guilty because the Prosecution had allegedly promised during oral discussions that it would not seek a custodial sentence. He alleged that the Prosecution then changed its position, amended the charge and informed him that it would be seeking a custodial sentence. The applicant said in the circumstances, he would not plead guilty. He then made an application to the District Judge to enforce the alleged oral promise given by the Prosecution. When this was dismissed, he filed a criminal motion to the High Court seeking a declaration that the oral promise be enforced. The High Court dismissed the application. It found that the substance of the application was to stop the Prosecution from proceeding with its intended prosecution of the applicant for his offence of using criminal force. In the court’s view, this was effectively an attempt to secure public law remedies which were rightfully pursued under O 53 of the ROC. To allow the applicant to proceed by way of criminal motion would effectively allow him to bypass the need to secure leave to commence actions for judicial review (Amarjeet Singh at [41]–[43]).

[35] Amarjeet Singh holds that a criminal motion to the High Court ought not to be used to circumvent what ought to be the proper public law remedy, ie, judicial review, which carries a leave requirement. It does not stand for the wider proposition that the court is not entitled to join a non-party to a judicial review proceeding where leave has already been granted to another party.

[37] In the premises, I held that O 15 r 6(2)(b) of the ROC is applicable for a party seeking to be joined in a judicial review proceeding.

[38] The principles pertaining to a joinder under O 15 r 6(2)(b) of the ROC were not disputed. Joinder of a party is allowed when the party seeking to join meets either one of the two criteria outlined in O 15 r 6(2)(b). To assess the applicability of either criterion, a two-stage examination is conducted. The initial stage determines if the specific criterion is met, and this stage is entirely non-discretionary. If so, the court proceeds to the next stage, where it evaluates whether to exercise its discretionary power to permit the joinder of the applicant: Lim Oon Kuin and others v Rajah & Tann Singapore LLP and another appeal [2022] 2 SLR 280 (“Lim Oon Kuin”) at [25] and ARW v Comptroller of Income Tax and another and another appeal [2019] 1 SLR 499 (“ARW”) at [40].

[39] When evaluating the “necessity” limb in O 15 r 6(2)(b)(i) of the ROC, the main question is whether the action, as originally framed, can be “effectually and completely determined” without adding the party in question (ARW at [41]). It is insufficient if, for example, a plaintiff merely desires to include a third party for the purpose of presenting a connected claim against it. If this criterion is met, the court then weighs “all the factors which are relevant to the balance of justice in a particular case” in exercising its discretionary power (ARW at [41]).

[40] When invoking the “just and convenient” limb in O 15 r 6(2)(b)(ii), the court must first ensure that there is a question or issue concerning the party seeking to be joined that is relevant to an existing question or issue between the existing parties. Subsequently, in the exercise of its discretionary power, the court determines whether joinder for the purpose of deciding that question or issue would be just and convenient: Ernest Ferdinand Perez De La Sala v Compañia De Navegación Palomar, SA and others and other appeals (“De La Sala”) [2018] 1 SLR 894 at [204]; Lim Oon Kuin at [27].

[41] The OETs submitted that they should be joined as both the “necessity” and “just and convenient” limbs in O 15 r 6(2)(b) of the ROC were satisfied. The “necessity” limb was satisfied as it was necessary to include the OETs in these proceedings to provide the court with the benefit of having all parties before it rather than just the Applicant. Given that the current proceedings involved the Applicant only, even though it was a challenge against MUIS’ Removal Decision, the Applicant’s judicial review proceedings could not be “effectually and completely determined” without the joinder of the OETs. Like the Applicant, the OETs were also removed by the same Removal Decision. The “just and convenient” limb was also satisfied as it was evident that the OETs were sufficiently connected to the judicial review proceedings. The Applicant’s removal as a trustee stemmed from the complaint lodged by the OETs against him. When reviewing the decision resulting in the Applicant’s removal, the inclusion of the OETs would be essential since they were the initial complainants. Thus, it was just and convenient for the OETs to be before the court as parties interested in the outcome of the proceedings. Finally, the balance of justice pointed in favour of joining the OETs and the court should accordingly exercise its discretion as such, considering the above reasons.

[42] MUIS had no objection to the joinder of the OETs. Its views related to the capacity in which the OETs were to be joined, which is dealt with below.

[44] Lim Oon Kuin is instructive on the difference between the “necessity” and “just and convenient” limbs in O 15 r 6(2)(b) of the ROC. In that case, members of the Lim family (the “Lims”) applied to join themselves to two injunction applications taken out by Hin Leong Trading (“HLT”) and Ocean Tankers Pte Ltd (“OTPL”), respectively, against Rajah & Tann Singapore LLP (“R&T”), to restrain R&T from advising/acting as solicitors for HLT/OTPL and its judicial managers. According to the Lims, R&T had advised and acted for the Lims and their companies, including OTPL and HLT, since the 1990s, during which R&T was provided confidential information about the parties. The information was potentially relevant to the interim judicial managers and judicial managers of OTPL and HLT in any investigations they might undertake into the Lim Family’s management of OTPL and HLT. Hence, the injunctions were necessary to protect confidential information disclosed to R&T.

[45] The Court of Appeal found at [28] that it was not “necessary” to join the Lims to the applications as the Lims did not assert an interest on behalf of the HTL and OTPL that was necessary to the determination of the injunction applications, nor was their presence necessary to the issue of whether the companies were entitled to the reliefs sought. Rather, their interest, as asserted, was in preserving the confidence of information belonging to themselves and their other companies. Accordingly, they did not meet the requirements of the first limb of O 15 r 6(2)(b).

[46] Despite having found that the “necessity” limb was not made out, the Court of Appeal went on to hold (at [29]) that it was just and convenient to add the Lims under O 15 r 6(2)(b)(ii) of the ROC. This was because the Lims’ claims substantially arose from the same facts, being disclosure of information to R&T by the Lims and the companies, which the Lims claimed would not have taken place had they known R&T could subsequently act for the JMs of the companies in a manner adverse to their interests. As such, the questions of confidential information raised by the Lims were linked to the injunctive relief sought by the companies. The causes of action were linked by the same set of facts.

[47] Coming to the facts of this case, I first address the “necessity” limb. The Applicant argued that the OETs were not necessary parties to his judicial review proceedings, because he sought only to quash the MUIS Decisions as they related to himself, and not the OETs.

[48] In the present case, the OETs’ case stood on their argument that the Removal Decision was not severable as it equally applied to all the trustees. This was an issue that MUIS raised at the leave stage and formed an issue to be adjudicated at the substantive stage of these proceedings. A possible conclusion from the substantive stage would be that the MUIS Decisions may be ultra vires and not severable. In this particular factual scenario, the issue could not be “effectually and completely determined” (see De La Sala at [203]) without the OETs’ participation. At the same time, the success of the Applicant’s summons rested on his contention that the decision was severable. The leave threshold is “very low”: Chan Hiang Leng Colin and others v Minister for Information and the Arts [1996] 1 SLR(R) 294 at [22]. All that was required was a prima facie case of reasonable suspicion in favour of granting the remedies sought: see Gobi a/l Avedian and another v Attorney General and another appeal [2020] 2 SLR 883. Arising from the low threshold for leave, it was not yet clear whether the OETs were necessary to the resolution of the case.

[50] I therefore decided that it was just and convenient to join the OETs.

[52] In analysing their arguments, I deal first with the capacity in which the OETs were to be joined. In respect of their being joined as respondents, MUIS was in agreement. The Applicant objected to their being joined altogether, but did not specifically object to their being joined as respondents.

[53] In the present case, it became clear from the OETs’ further submissions that the OETs stood in opposition to the Applicant in two important aspects. In both of these aspects, they stood with MUIS. First, regarding the resolution of the dispute before MUIS, they were willing to abide by the MUIS Decisions, and they were equally willing to accept MUIS’s offer to reconsider the MUIS Decisions. Second, they were of the view that the MUIS Decisions were not severable. In my judgment, therefore, they were to be joined as respondents. The manner in which they would make clear the relief they sought was an ancillary issue, which I address below.

[55] The Applicant contended that a counterclaim or third-party procedure is not allowed in a judicial review proceeding. As regards a counterclaim, the procedure in O 53 of the ROC does not contemplate a situation where the respondent decision maker would make a counterclaim against the applicant who sought to challenge its decision. For the same reason, neither is a third-party procedure envisaged under O 53.

[58] O 32 of the ROC was sufficiently wide to allow the OETs to file a summons for the relief they sought. Rule 1 reads: