Application of Civil Law Act PDF

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Application of Sections 3, 5 and 6 of the Civil Law Act 1956 When Malaysia was formed in 1963, there were three separate statutes authorising the application of English law, which are S, 5, 6 of the Civil Law Ordinance 1956 in Peninsular Malaysia, Application of Laws Ordinance 1956 in Sabah and Appl...

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Application of Sections 3, 5 and 6 of the Civil Law Act 1956 When Malaysia was formed in 1963, there were three separate statutes authorising the application of English law, which are S.3, 5, 6 of the Civil Law Ordinance 1956 in Peninsular Malaysia, Application of Laws Ordinance 1956 in Sabah and Application of Laws Ordinance 1949 in Sarawak. Civil Law Act 1956 soon combined the above said statute and it is the comprehensive statute that authorize the application of English Law provided by virtue of S.3, 5 and 6. S.3(1) of CLA provides that in the absence of written law in Malaysia, the courts in Malaysia shall apply the common law and rules of equity existing in England on 7/4/1956 in West Malaysia; 1/12/1951 in Sabah and 12/121949 in Sarawak. However, since S.3(1) (b) and (1) (c) import English Statutes of general application into Sabah and Sarawak respectively, the issue arises is whether the English statutes of general application are applicable in West Malaysia. There are two view. Firstly, Professor Bartholomew holds that such English statutes passed before 7/4/1956 are applicable because of sheer of necessity. However, Joseph Chia expresses a contrary opinion and the judicial opinion supports his view. In the case of Mokhtar v Arumugam, the court held that damages in the nature of interest for delay in returning specific goods could be awarded in Malaysia is not applicable here due to it being an English statute remedy. Whilst, in the case of Pushpah v Malaysian Co-operative Insurance Society, the High Court rejected the argument that an English statutory provision relating to revocation of a nominated beneficiary upon marriage should be adopted. There are three qualifications that need to be fulfilled before English law can be applied in Malaysia under S.3(1)of CLA. Firstly, there is absence of the local legislation which is the lacuna or gap in the legislation. The qualification is illustrated in Attorney-General, Malaysia v Manjeet Singh Dhillon, where the Supreme Court held that in the absence of any specific local legislation concerning contempt of court, the common law of contempt should be applied under S.3 of CLA In Ong Guan Hua &Chong, the court held that there is no distinction between wagering on games and others types of gaming and in every case, the question of gaming is to be considered in the light of the local statutes which correspond to the English Gaming Acts of 1845 &1892. Also, in Wong Thiam Ping v Labuan Ferry Corporation, the court held that the doctrine of prime necessity which is part of the common laws shall be applied to fill lacuna of local law. In Yong Joo Jin v Fung Poi Fong, the court ruled that the principles of English Law have been accepted for many years in FMS, where no other provisions has been made by the statutes.

Secondly, cut-off dates need to be considered. Only common laws and rules of equity existing in England on the date specified can be applied to fill the lacunae in local laws. Under S.3 of CLA, the cut-off date for the Peninsula Malaysia in on 7/4/1956, 1/12/1951 for Sabah and 12/12/1949 for Sarawak. In the case Sri Inai (Pulau Pinang) Sdn Bhd v. Yong Yit Swee & ors and Chung Khiaw Bank Ltd. V Hotel Rasa Sayang, S.3 of CLA directs the court to apply common law of England so far as the circumstances permit and save where no provision has made by statute law. The development of the common law after 7/4/1956 (for the states of Malaya) is entirely in the hands of the courts of the country, as stated ‘we cannot just accept the development of the common law in England.” In the case of State of Sarawak v Chong Chieng Jen , the court held that since the Derbyshire principle came into existence only in 1993, it shall has no application in our court. Next, in the case of Lee Kee Chong v Empat Nombor Ekor, it stated that their Lordship need not consider developments in English law after 1956 for West Malaysia, provides that “any subsequent march in English authority is not embodied”. In the case Leong Bee & Co. v. Ling Nam rubber works, presumption that a fire which began on a man’s property arose from the some act or default for which he was answerable, has no application in Malaysia because having displaced by English statutes, the presumption was no longer part of the common law of England on 7 April 1956. Thirdly, English law must be permitted by local circumstances and inhabitants. In deciding the case Jamil Bin Harun v. Yang Kamisah & Anor, the court had emphasized that the court in Malaysia, while determining whether to follow English Law, will have regard to the circumstances of States of Malaysia and will be careful to apply them to the extent that the written law permits and no further than in their view it is just to do so. In the case of Permodelan Plantations Sdn. Bhd v. Rachuta Sdn Bhd, Salleh Abas LP held that the legal set-off which is based on English Statute is not included in the expression “the common law of England”. Only equitable set-off is part of the local law and the consequently the court can only deal with an equitable set-off. In Syarikat Batu Sinar v UMBC Finance, English practice of endorsement of vehicle ownership claimed by finance company differs from Malaysia. Hence, this practice should not be allowed in Malaysia. In the case of Labuan Ferry Corporation v Chin Mui Kien & Ors, the court state that since the common law practice of doctrine of prime necessity is permitted by the local, hence it shall have application in Malaysia.

S.5 of CLA enables the application of English law in commercial matters such as law of partnership, corporation, life and fire insurance, etc. In the case of Soon Hai Kee Shipping Sdn Bhd v Tokio Marine Insurance , the court had applied UK Marine Insurance Act 1906 in determining the practice for marine insurance policies to be issued. In Aseambankers Malaysia v Shencourt Sdn Bhd , the court held that English shall apply to issue in respect to banks and banking. In Sri Minal Construction Sdn Bhd v. Hongkong Bank Malaysia Bhd, the court held that in the absence of further case law in Malaysia, it is proposed to analyse the case law in the UK in the relation to the development of the law on professional negligence which is concurrent with contractual liability. Also, in ECM Coachbuilders Sdn v. Intrabuana Tour & Travel Sdn Bhd & Ors, the court that Malaysian Sale of Goods Act 1957 not applicable to the states of s’bah and s’wak. By virtue of S.5 of CLA, applicable law is the UK sale of Goods Act 1979. S.6 of CLA expressly excludes the application of English land law in Malaysia. This was because there already existed local legislation concerning land matters which is Torren System in all state except for Sabah. It is claimed that system is based on registration of land titles, designed to provide simplicity and certainty. In the case of Haji Abdul Rahman v Mohamed Hassan, the court held that there shall be no room for the application of equity since Australian Torren System is the system use in the State of Selangor. Also, in the case of United Malaysian Banking Corporation & Anor v Pemungut Hasil Tanah Kota Tinggi, the court stated that the national Land Code is a complete and comprehensive code of law governing the tenure of land in Malaysia and there is no room for importation of any rules of English law on that field except in so far as the code itself may expressly provide for it....