A new dispute regarding the origins of the Mustafa empire has arisen in the midst of the legal battle between Mr Mustaq Ahmad, CEO of Mustafa Centre, and his late father Mr Mustafa Majid Khan's second family.
In an affidavit by the Mustafa estate, led by one of Mr Mustaq's half-brothers Mr Ayaz Ahmed, dated 30 July, it was alleged that Mr Mustaq and five other defendants, namely Mr Mustaq's wife Mdm Ishret Jahan and their three children, as well as their company Mohamed Mustafa & Samsuddin Co. Pte. Ltd. (MMSCPL), had "fabricated documents for the purpose of creating evidence" regarding stakes in the business, as well as ownership of the business:
They claim that Mustafa’s shares in MMSCPL were and are held on trust for Mustaq by reason of the background and history of the formation of MMSCPL, and that there was an alleged common understanding (“Alleged 1973 Common Understanding”) between Mustafa, Samsuddin and Mustaq, among other things, that the business belonged solely to Mustaq and that Mustafa and Samsuddin would not receive any remuneration from MMSCPL.
The written submission of the respondents (the Mustafa estate) further alleged that "The Alleged 1973 Common Understanding and the Alleged 2001 Common Understanding are attempts to mislead the Court", as such a claim arose "only after the commencement of proceedings".
The respondents postulated that Mr Mustaq was trying to utilise the fact that "both Mustafa and Samsuddin have passed away" as a means to prevent the discovery of the alleged fabrication of documents.
The Mustafa estate highlighted that Mr Mustaq and the other defendants had "conjured two resolutions", namely:
- A shareholders’ resolution dated 5 January 1995 (the “1995 Resolution”), which they claim was signed by, among others, Mustafa and Samsuddin; and
- A shareholders’ resolution dated 11 December 2001 (the “2001 Resolution”) which they claim was signed by, among others, Samsuddin to suggest that 5 January 1995 Allotment and the 11 December 2001 Allotment were properly authorised by Mustafa and/or Samsuddin
In line with Assistant Registrar Mr Scott Tan's direction to amend their submissions, the Mustafa estate "made further checks on the authenticity of the 1995 Resolution and the 2001 Resolution" by conducting "an online search at the Accounting and Corporate Regulatory Authority (ACRA)'s website".
It was found by the Mustafa estate that "different resolutions were passed", and that Mr Mustaq and the other defendants had withheld the resolutions all along, allegedly producing instead "the 1995 Resolution and the 2001 Resolution which they rely on to say that the matters were approved".
The following regulations were also highlighted in the Mustafa estate's affidavit:
Under section 186(1)(a) of the Companies Act which was in force then, MMSCPL was required to lodge a printed copy of every special resolution and every resolution or agreement which effectively bound any class of shareholders within one month after the passing or making of such resolution or agreement except where otherwise expressly provided in the Companies Act.
Article 7 of the Articles of Association of MMSCPL provides that unless otherwise determined by the company by special resolution or otherwise agreed by the holders of all the shares for the time being issued, all unissued shares shall before issue be offered for subscription to the members in proportion as nearly as the circumstances will admit to the number of shares then held by them. Article 57 of the MMSCPL Constitution provides that MMSCPL may from time to time by ordinary resolution increase its capital by the creation and issue of new shares.
On 12 January 1995, MMSCPL lodged the 1995 Notice of Resolution with the Registrar of Companies & Businesses. The 1995 Notice of Resolution stated that a resolution dated 5 January 1995 authorising an allotment of 700,000 ordinary shares to Mustaq had been signed by Mustaq only.
In other words, based on the 1995 Notice of Resolution, there was no approval from Ishret, Mustafa and Samsuddin for the 5 January 1995 Allotment.
Similarly, on 21 December 2001, the 2001 Notice of Resolution was lodged with the Registrar of Companies & Businesses. The 2001 Notice of Resolution stated that a resolution dated 11 December 2001 authorising an allotment of 4,340,000 ordinary shares to Mustaq was signed by Mustaq and Ishret only.
Based on the 2001 Notice of Resolution, there was no approval from Samsuddin for the 11 December 2001 Allotment.
The Mustafa estate further argued that "it is inconceivable that Mustafa would have signed the 1995 Resolution" if he was aware that doing so would result in a dilution of his shares in MMSCPL. In the affidavit of Mdm Asia, Mr Mustafa's wife from his second marriage, it was purported that "Mustafa had assured her that his shares in the MMSCPL would be protected for her and the rest of the Respondents".
It was also alleged that Mr Mustaq's daughter, Ms Shama Bano, had declared in her third affidavit that "no physical meeting was convened to approve the 5 January 1995 Allotment and 11 December 2001 Allotment", contrary to the 1995 Resolution and 2001 Resolution, which stated that "an Extra-Ordinary General Meeting" was "held" at the office of MMSCPL and that Mdm Ishret (for the 1995 Resolution) and Mr Mustaq (for the 2001 Resolution) "took the chair" and "explained the purpose of calling the meeting”.
The Mustafa estate also pointed out that Mr Mustaq and the other defendants did not appeal against Assistant Registrar Scott Tan's instructions towards the former to amend their pleadings, and that Mr Mustaq and the other defendants had "promptly consented to the proposed amendments on 23 July 2018", in addition to keeping mum on the "1995 Notice of Resolution and the 2001 Notice of Resolution". The Mustafa estate alleged that this was part of Mr Mustaq's and the rest of the defendants' efforts to conceal the issue from the court regarding the appeal.
The Mustafa estate had also requested “certified copies of all shareholders’ and directors’ resolutions passed, from incorporation till now, for [MMSCPL], MAT [Mustafa Air Travel] and any company which the [Mustafa Estate] has direct or indirect interest” in November 2016.
However, the Mustafa estate alleged that they were only provided a limited and incomplete range of "shareholder resolutions from 2001 to 2015, and not any of the resolutions before 2001, including but not limited to the 1995 Resolution and 2001 Resolution" by Mr Mustaq's and the defendants' solicitors approximately a month later.
It was also highlighted by the Mustafa estate that "even if Mustafa and/or Samsuddin had signed the 1995 Resolution and 2001 Resolutions", there are no prohibitions against the estate in terms of "making claims in respect of the 5 January 1995 Allotment", particularly regarding alleged "oppression" in the process of obtaining approval of transactions from Mr Mustafa and/or Mr Samsuddin as stakeholders in MMSCPL.
Citing the case of Sakae Holdings Ltd v Gryphon Real Estate Investment Corp Pte Ltd (“Sakae (HC)”), in which the High Court held that "it was possible for the shareholder to have unwittingly signed, among other things, shareholders’ resolutions, without much attention when there is a relationship of unquestioning trust and the parties’ interests seemed completely aligned", the Mustafa estate alleged that Mr Mustafa and/or Mr Samsuddin "did not knowingly approve the 5 January 1995 Share Allotment and/or the 11 December 2001 Share Allotment", as they "could not have possibly known or understood what the 1995 and 2001 Resolutions meant", given that they did not understand English.
The respondents added that Mr Mustaq "knew that Mustafa relied on Mustaq and signed whatever Mustaq wanted", adding that he had "asked Mustafa to sign documents without explaining the documents to Mustafa" and on top of that, in the absence of an independent legal advisor to assist Mr Mustafa regarding the documents. The Mustafa estate added that Mr Mustafa had reasonably trusted that Mr Mustaq "would act honestly in the best interests of MMSCPL".
Mr Mustaq was also accused of exploiting the frail condition of Mr Mustafa, who was 77 years old in 1995, and the fact that his father "was dependent on his family and others for his daily tasks", in a bid to gain total control over MMSCPL.
Mr Mustaq, in return, alleged that Mr Ayaz and the rest of the Mustafa estate were “fabricating evidence just to support their smear campaign against [him]”, adding that “Mustafa often told [him] that [he] did not need to explain the documents to him because the business was [his, i.e. Mr Mustaq's]”.
The success of Mustafa Centre has been largely attributed by the media and popular culture to Mr Mustaq as the purported founder of the iconic shopping complex, and as a result, he was named Tourism Entrepreneur of the Year 2003 by the Singapore Tourism Board. Mr Mustaq has also been ranked as the 37th richest person in Singapore, with a net worth estimated at US$240 million by Forbes Asia in 2011.