TUTO 2 (English Law) - LAW434 PDF

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NAMA: AMIRAH SAFIAH BINTI SHAHARUDDINGROUP: DTUTORIAL: 2LECTURER’S NAME: MADAM ZUHAIRA NADIAH BT ZULKIPLIDATE: 25TH SEPTEMBER 2019 English Law was introduced by the English Colonists that brought common law, which is their system of law to Malaysia. The common law is the unwritten la of England and ...

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NAMA: AMIRAH SAFIAH BINTI SHAHARUDDIN GROUP: D TUTORIAL: 2 LECTURER’S NAME: MADAM ZUHAIRA NADIAH BT ZULKIPLI DATE: 25TH SEPTEMBER 2019 1. English Law was introduced by the English Colonists that brought common law, which is their system of law to Malaysia. The common law is the unwritten la of England and it is the body of rules that has been developed through the decisions of the courts. On the other hand, equity is a complete body of rules that exists solely as the supplement of common law and its function is to correct the common law’s defect and mitigate its harshness. The extend on whether the English Law is applicable is stated in Section 3, Section 5 and Section 6 of the Civil Law Act 1956.

Firstly, Section 3 of the Civil Law Act provides the English Common Law and Equity. According to Section (3) (a), in West Malaysia, the courts shall apply the Common Law of England and the Rules of Equity as administered in England 7/4/1956. Section 3 (1) (b), provides that in Sabah, the courts shall apply the English Common Law and the Rules of Equity, together with status of general application, as administered or force in England on 1/12/1951. Lastly, in Section (3) (1) (c), the courts in Sarawak shall apply the English Common Law and the Rules of Equity together with status of general application, as administered or force in England on 12/12/1949. The different wording used between Section 3(a) and Section 3(b) and (c) are that the statute of general application is only applicable in Sabah and Sarawak. However, there are two opinions arose. Firstly, it is from Professor Bartholomew which is the English statues are applicable to both West Malaysia and Sabah and Sarawak. The expression common law simply means the law administered by the courts of common law. On the other hand, Joseph Chia stated that English Statutes are not applicable. In the case of Mokhtar v Arumugam, the damages in the nature of interest for delay in returning specific goods cannot be awarded as a remedy because it is a creature of English statutes and cannot be used in the Peninsular. It was supported in the case of Permodalan Plantation v Rachutta, the defence of legal set-off, which is an English statute, does not apply in West Malaysia. It was added in the case of Jayakumari v Suriya Narayanan, the court held that English statues were not binding in our country. The maker of Section 3(a) has the intention to omit the wording ‘general application’ that give the meaning that English statutes are not applicable in West Malaysia.

However, the application of English Law in Malaysia is subjected to certain limitations. One of them is the absence of local legislations. The English Law may only apply in the absence of local statutes on a particular matter. In other words, Malaysia may resort to English Law whenever there is a lacunae in the local law. As illustrated in the case of Attorney General Malaysia vs. Manjeet Singh Dillon, the court decided that since there is no specific legislation in the issue of contempt in court, the English law in the case of R v. Gray should be applied under Section 3. However, in recent times, Malaysia has already made a legislation on contempt in court. Therefore, the case of R v. Gray cannot be used anymore. Next, it is the cut-off dates. The cut off dates are the dates where the existing law on the dates can be applied to the local law. Generally, the courts do not need to follow the development of the English Law after 1956. According to the case of Lee Kee Cheong v. Empat Nombor Ekor Sdn. Bhd., the court need not to consider the development in English Law after 1956 as any subsequent march in English authority is not embodied. However, despite the fact that Malaysian courts shall apply English law existing on the specific dates, it has been decided that the courts may follow the development in English Common Law after such dates but it must be only persuasive, and not binding. This has been stated in the case of Jamil bin Harun v Yang Kamsiah & Anor where the choice is left to the wisdom of the Malaysian Judiciary whether to follow the judgement on cases developed after the cut off dates. Lastly, it is the local circumstances. The English Law is only applicable to the extent permitted by local circumstances and inhabitants. They are usually referred as local circumstances proviso. As stated in the case of Syarikat Batu Sinar v. UMBC Finance, the learned judge stated that we have to develop our own common law by directing our minds for the local circumstances and inhabitants. Next, Section 5 provides for the application of English Law in commercial matters. According to Section 5(1), all states except in Penang, Malacca, Sabah and Sarawak applies the English Commercial Law as administered in England on 7/4/1956. It must be respected to the law of partnership, corporations, banks and banking, principle and agents, carriers by air, land and sea, marine insurance, average life and fire insurance with respect to merchantile law. Section 5(2) provides that Penang, Malacca, Sabah and Sarawak can use relevant application and applicable English commercial law continuously. The states stated in subsection (2) does not have any cut off dates. Theoretically, in commercial matters, there is a continuing reception of English law in these four states while in the other states, the reception stops at the cut-off date. It can be seen the different wording used in Section 5, which is ‘the law to be administered’ compared to the wording used in Section 3, which is ‘which specifies the relevant sources of

English Law. It can be concluded that Section 5 of the Civil Law will introduce the whole English law, including the statutes. Next, the difference between Section 5(1) and Section 5(2) is the difference in the extent to which English Law is applicable in commercial matters. In S.5(1), they introduce the law administered in England on 7 April 1956 in the former Malay States, where as in Melaka, Penang, Sabah and Sarawak, the same date that the issue has to be decided. There are two approaches in the interpretation of Section 5 which concern on the issue of the provision on merchantile law. Mechantile law is a body of law that deals with the customs and practices at local and international commerce. For example, trades and buying goods. For the first approach, it had been explained in the case of Seng Djit Hin v Nagurdas Purshotumdas. The issue was the application of the Defence of the Realm (Amendment) 1915 and the Courts (Emergency Powers) Act 1917, which are both English statutes. There was an issue whether both of the statues were part of the merchantile law or otherwise. The judge held that the law that is ought to be administered was not rigidly has to be ‘merchantile law’ but ‘the law’ as to be administered in England in the like case. The correct approach on interpreting the section dispute is to determine if the issue concerned one of the enumerated categories and ‘merchantile law generally’. If it does, then the law to be administered shall be the same as would be administered in England like cases. As the two statutes could be pleaded had the issue arisen in England, they could be relied upon in the Straits Settlements. The second implication ten years after the judgement of the case previously, the correct interpretation was once again brought to the attention of the court in the case of Shaik Sahied bin Abdullah Bajerai v Sockalingam. In this case, the plaintiff sued for money allegedly due on a promise note and a cheque and the defendant then relied on the absence of a written memorandum as required under English Moneylenders Acts 1900-1927. The issue was whether those statues could be used in the Straits Settlement. Since the judge held that the statutes were peculiar in England, it did not permit the application. Lord Atkin affirmed the judgement by saying that the statutes were not part of merchantile law as it contains clauses the exclude from the scope of borrowing of money in the course of ordinary commercial transactions. Since the issue is raise under a statute that is not under the merchantile law, the statues will not be apply in the Straits Settlements.

Lastly, Section 6 of the Civil Law Act. Nothing in this part shall be taken into Malaysia or any of the states comprised therein any part of law of England in any matter that concerns with tenure, conveyance, assurance or succession to immovable property or any estate, right or interest therein. This section excludes the application of English Law in Malaysia concerning land tenure. Thus, nothing that is stated in this law shall be applied in Malaysia. This is because, Malaysia uses our own Kanun Tanah Negara to deal with these matters. This has been supported in the case of United Malayan Banking Corp Bhd v Pemungut Hasil Tanah Kota Tinggi, the court stated that

the National Land Code is complete and comprehensive code of law governing the tenure of land in Malaysia and there is no room for the importation of any rules of English Law in that field....