Development & Reception
of English Law
Presented by
Group 1
Group 1
L1/T5
Mithralini [ 1191100142 ]
Siti Aimy Amirah [ 1191100150 ]
Mahisha Marthini [ 1191100165 ]
Kghartiie [ 1191100454 ]
Muhenthran [ 1191100200 ]
Question
1. Explain the facts and the principles of these cases in relation to the
status of English law in the Malaysian legal system:
a. Attorney General Malaysia v Manjeet Singh Dhillon [1991] 1 MLJ 167
b. Jamil Bin Harun v Yang Kamsiah & Anor [1984] 1 MLJ 217
c. Tan Mooi Liang v Lim Soon Seng & Ors [1974] 2 MLJ 60
d. T Damodaran v Choe Kuan Him [1979] 2 MLJ 267
e. Chin Choy & Ors v Collector Of Stamp Duties [1981] 2 MLJ 47
f. Re KO (An Infant) [1990] 1 MLJ 494
Attorney General Malaysia v Manjeet Singh Dhillon [1991] 1 MLJ 167
Facts:
- Defendant had affirmed and filed an affidavit in support of an application in the Supreme Court for leave for an order of committal to prison of the Lord President for alleged contempt of the court
- In the affidavit, the defendant made various accusations and allegations against the Lord President who was at the material time the acting Lord President and the Chief Justice of the High Court of Malaya
- The Attorney General, applied to commit the Defendant to prison for alleged contempt of court on the ground that the accusations and allegations made by the defendant amounted to scandalizing the Lord President in his judicial capacity
- Defendant admitted that he affirmed the affidavit and that he did so on behalf of the Malaysian Bar and in his capacity as secretary of the Bar Council which means he was abusing his official position
Held:
- The Parliament has so far not passed any law under Article 10(2) of the Federal Constitution to impose on the right of freedom of speech and expression as stated in Article 10 (1) of the FC where any restrictions created to provide against contempt of court except Section 13 of the courts judicature acts 1964 where the supreme courts shall have the power to punish any contempt of itself
- Section 3 of civil law act should be applicable in our country
- It was also held that if there is any absence of a specific local legislation concerning the contempt of court then the English common law is applicable
Jamil Bin Harun v Yang Kamsiah & Anor [1984] 1 MLJ 217
Facts:
- Yang Kamsiah had been run down by a motor bus which caused her to suffer from a very serious brain injury and turned her into a subnormal child with permanent mental & physical disabilities
- The trial Judge refused to itemise his award and ordered RM75,000 general damages and RM500 special damages, to the second respondent, with an interest of 6% on the general damages to run from date of service of writ and 3% interest on special damages from the date of accident
- The Federal Court rejected the trial judge’s views
Held:
- Courts in Malaysia can decide whether to follow English Law in regard to the circumstances that the written law permits & modern English authorities maybe persuasive but are not binding
- The written law in Malaysia does not forbid itemisation of damages in personal damages case
- The Federal Court was fully entitled to accept the principle of assessment laid down in the Lim Poh Choo's case
- Thus, the appeal was dismissed
Tan Mooi Liang v Lim Soon Seng & Ors [1974] 2 MLJ 60
Facts:
- 1 July 1971 - the appellant and the 4 respondents were partners in the business of dealers and distributors in sundry goods
- 15 February 1973 - gave notice of his intention to dissolve the partnership
- The notice given was ineffective to dissolve the partnership and that it amounted to a notice of intention to withdraw from the partnership
- Appellant applied by motion for the appointment of a receiver and manager
- The learned trial judge dismissed the motion
- Appellant appealed to the federal court
Held:
- The former Federal Court held that since the Contracts (Malay States) Ordinance 1950 contained many provisions relating to the partnership, which constituted ‘other provision' concerning the partnership within the meaning of Section 5 (1) of the Civil Law Ordinance 1956
- The English law did not apply the English principle and did not bind it even (Malay States) Ordinance 1950 on the issue
- The courts in Malaysia are not bound to follow the meaning of the term as understood at common law
T Damodaran v Choe Kuan Him [1979] 2 MLJ 267
Facts:
- 2nd August 1973 - the Appellant sold some lands to Andawan ( the purchaser)
- By clause 3 of the contract the lands sold were "to be free of all incumbrances whatsoever"
- 21st August 1973 - one Vesudevan ( the 3O claimant ) entered a private caveat against the lands and on 19th December 1973 issued a Writ, also in the High Court at Alor Setar ( the trust action ), claiming that the Appellant held a one half undivided share in the lands as trustee for him
- The Appellant succeeded in removing the caveat
- The claimant caveated the lands
- The Appellant caused the caveat to be removed and obtained an injunction restraining the said claimant from lodging further caveats
Held:
- The terms of the solicitors' undertaking were clear, unqualified and unequivocal and there was no reason why the appellant should not recover the balance of the purchase price;
- Even if the entry in the register of the order of lis pendens was lawful, it served no purpose and the purchaser had obtained the title to the land free from encumbrances;
- Where by reason of a pending action in which the title to registered land is in dispute it would be to suspend the registered proprietor's right to transfer the land pending the determination of the action, the proper and effective way of doing so is by entry of a private caveat
- The National Land Code applies to Malaysia the Torrens system of registration of title of land by virtue of Section 6 of Civil Law Act 1956
- The purpose of the system is to get away from the complicated system of rules which in England regulate dealings with land
Chin Choy & Ors v Collector Of Stamp Duties [1981] 2 MLJ 47
Facts:
- In 1971, the appellants agreed to buy a piece of property for $49,000
- The transfer was executed only in 1973
- The Collector Of Stamp Duties calculated stamp duty not at the selling price of $49,000 agreed in 1971 but on the market value of the property when the transfer was executed in 1973
- He set the value in 1973 at $65,000
- The appellants argued that the duty payable on the instrument of transfer of the property should be based either on the money vale mentioned in the instrument or the market value on the date of the spa and not the date of the execution of the instrument of transfer
Held:
- The legal title of the property could only be transferred by registration in accordance with the National Land Code
- Although the principle that once a valid contract for sale is concluded the vendor becomes in equity a trustee for the purchaser of the estate sold is a peculiarity of English Law
- Section 6 of Civil Law Ordinance 1956 expressly provides no room for the application of English Land law into the Federation of Malaya
Re KO (An Infant) [1990] 1 MLJ 494
Facts:
- The mother applied for the custody of her child, K, who had been in the custody of the father
- The father alleged that the mother prioritised her career and that she was not in a position to care for the welfare of K
- The mother argued that the father should not have custody of K due to his heavy involvement in business
- K was a seven years old boy
Held:
- Mother gained custody of the child
- Section 11 of the Guardianship of Infants Act 1961 states that the welfare of the child is provided
- Her priority towards her career does not disqualify her from having her child’s custody
- The child related well to both parents and their respective homes
- There was no evidence that K suffered any effects to his mental or physical health
- The court said that the child should not be deprived of the love of the mother
- Section 88(2) of the Law Reform (Marriage and Divorce) Act 1976 and Section 11 of Guardianship of Infants Act 1961 provides that deciding the custody of the child, the paramount consideration shall be the welfare of the child, and the court shall have regard to the wishes of the parent and child
- This case showed the application of the English law in the welfare of the children in Malaysia