civil law act 1956

Question 1

origins of CLA 1956

Answer 1

1. Civil Law Enactment 1937 > FMS
2. Civil Law (Extension) Ordinance 1951 > Extended CLE 1937 to UFMS
3. Civil Law Ordinance 1956 > Repealed both statutes – applicable to Federation of Malaya

Question 2

origins

Answer 2

CLO 1956 + Sabah: Application of Laws Ordinance 1951 + Sarawak: Application of Laws Ordinance 1949

= Civil Law Ordinance (Extension) Order 1971> When Malaysia was formed in 1963, CLO 1956 was extended to Sabah and Sarawak w.e.f 1/4/1972

Question 3

application of CLA 1956

Answer 3

1. section 3
2. section 5
3. section 6

Question 4

section 3

Answer 4

allos the application of
- English common law
- Equity
+
s. 5: allows the application of statutes in mercantile matters
BUT
s.6: prevents the application of c/law & equity on land matters

Question 5

section 3(1)(a) and (b) and (c)

Answer 5

s.3(1)(a)
* In Peninsular Malaysia, the Court shall apply the common law of England and equity as administered in England on 7/4/1956
* See Mokhtar v Arumugam; Jamil bin Harun
*
s.3(1)(b)
In Sabah, the Court shall apply the common law, equity and statutes of general application as administered in England on 1/12/1951
*
s.3(1)(c)
In Sarawak, the Court shall apply common law, equity and statutes of general application as administered in England on 12/12/1949
* [subject to para (3)(ii)]

Question 6

s3 CLA 1956: conditions and restrictions (1)

Answer 6

(1) Cut-off dates
 ► 7 April 1956 for Peninsular Malaysia;  ► 1 December 1952 for Sabah;
 ► 12 December 1956 for Sarawak
Only English common law, equity and statutes administered in England as at those dates are binding.

English common law and equity & statutes after those dates are merely persuasive
cases:
Lee Kee Chong v Empat Nombor Ekor
Leong Bee & Co v Ling Num Rubber Works
Jamil bin Harun v Yang Kamsiah

Question 7

s3 CLA 1956: conditions and restrictions (2)

Answer 7

2) The application of English statutes
 ► Section 3(1)(a) – only English common law and equity are applicable to West Malaysia;
 ► Section 3(1)(b)&(c) – English common law, equity and statutes of general application are applicable to Sabah and Sarawak.

Question 8

s3 CLA 1956: conditions and restrictions (2) (cases)

Answer 8

Mokhtar v Arumugam: “Its is quite clear that in England the power of the court to award damages in the nature of interest for delay in returning specific goods is a remedy conferred by statutes and not one available at common law. This relief, being a creature of English statutes, is NOT available here.”

Jayakumari v Suriya Narayana: the court held that a relief based on the British Domestic Violence and Matrimonial Proceedings Act 1976 and English authorities relating thereto “may not be binding in our country.”

Question 9

s3 CLA 1956: conditions and restrictions (3)

Answer 9

(3) In the absence of local law
 ► English law is only binding and applicable in the absence of local law.
 ►AG v Manjeet Singh Dillon: in the absence of specific law on contempt of court in Malaysia, the common law of contempt as stated in R v Grey should be applied.

Question 10

s3 CLA 1956: conditions and restrictions (4)

Answer 10

(4) Suitable to local circumstances
 Proviso to section 3(1):
“provided always that the said common law, rules of equity and statutes of general application shall be applied so far only as the circumstances of the States of Malaysia and their respective inhabitants permit and subject to such qualifications as local circumstances render necessary.”

Question 11

s3 CLA 1956: conditions and restrictions (4) (cases)

Answer 11

 Syarikat Batu Sinar v UMBC: the Court did not apply English common law because it contradicts Malaysian law;
 AG v Manjeet Singh Dillon: “When applying the law of contempt in Malaysia, the court will not lose sight of local conditions and for the reason it would be necessary to take a stricter view…”
 Balakrishnan a/l Subramaniam v Penguasa Pusat Pemulihan Akhlak Simpang Renggam [2014] 10 MLJ 226.

Question 12

section 5(1) and (2) CLA1956

Answer 12

► Section 5(1) :
“In all questions which arise or which have to be decided in the States of Peninsular Malaysia other than Malacca and Penang with respect to the law of partnership …, and with respect to mercantile law generally, the law to be administered shall be the same as would be administered in England in the like case at the date of the coming into force of this Act…”

► Section 5(2):
“In all questions which arise or which have to be decided in the States of Malacca, Penang, Sabah and Sarawak with respect to the law concerning any of the matters referred to in subsection (1), the law to be administered shall be the same as would be administered in England, in the like case at the corresponding period, if such question or issue had arises or had to be decided in England…”

Question 13

what section 5 contains/includes

Answer 13

 English law in section 5 includes:
- equity
-statutes
-common law
»»
On mercantile law

Question 14

what is mercantile law

Answer 14

“the law on buying and selling merchandise” as per Wood J in Vulcan Match co. v Herm Jebsen

Question 15

s.5(1) and s.5(2)

Answer 15

s.5(1)
Section 5(1) applies to West Malaysia i.e. the former FMS and UFMS
English law applicable is at 7/4/1956
s.5(2)
Section 5(2) applies to the former Straits Settlement Colonies of Penang and Malacca and also to Sabah and Sarawak.
English law applicable at the corresponding date – no cut off dates

Question 16

Interpretations of Section 5 (1)

Answer 16

 (I) Seng Djit Hin v Nagurdas:
 Facts: P sued for damages for D’s failure to deliver goods due to war. Issue in question was whether the defence in the English Realm (Amendment) Act and Courts (Emergency Powers) Act 1917 were applicable.
 Held:
 (1) S.6(=s.5) allows the application of ALL English law and not English
law on mercantile matters only;
 (2) The court must first determine whether the issue in question is of a mercantile nature. If so, then ALL English law (not restricted to statutes on mercantile matters only) are applicable.

Question 17

Interpretations of Section 5 (2)

Answer 17

(II) Shaik Sahied v Sockaligham Chetiar:
 Facts: P sued for money due on a promissory note and a cheque. D seek to invoke English Moneylenders Act. Q: Can such a statute be applied?
 Held: The statute (i.e. moneylender’s Act) was not part of mercantile law and the issue raised was not an issue of mercantile law. Hence. The said Act cannot be applied.

Question 18

interpertation of s5

Answer 18

1. Seng Djit Hin v Nagurdas
   If the issue in question is of a mercantile nature, then ANY English law can be applied – not restricted to English law on mercantile only.
2. Shaik Sahied v Sokhalingam
   To determine whether English mercantile law is applicable to Malaysia, the court must look at the statute in question. If the statute is of a commercial matter, then English mercantile law can be applied.

= However, it can be argued that section 5 is of little relevance now since Malaysia has her own commercial laws such as Contract Act, Insurance Act etc.

Question 19

section 6

Answer 19

 “Nothing in this Part shall be taken to introduce in Malaysia or any of the States comprised therein any
part of the law of England relating to the tenure or conveyance or assurance of or succession to any immovable property or any estate right or interest therein.”

Question 20

explanation of s6

Answer 20

 Section 6 expressly excludes the application of English law on land matters made possible by section 3(1);
 Reason: when CLO 1956 was enacted, there were local legislations available on land law.
 Malaysian land law is based on Australian Torrens system which is different from English land law.

Question 21

can english equitable principles be applied to land matters?

Answer 21

United Malayan Banking Corp v Pemungut Hasil Tanah: the NLC is complete – no need to refer to English equitable principles on land law.

Woo Yok Wan v Loo Pek Chee; Baghwan Singh v Hock Hin Bros; Lian Keow s/b v Overseas Credit Finance; Tan Peng Huat v Tan Boon Chong [2015] – these cases have accepted English equitable principles on land law.

Question 22

Civil Law Act 1956: Issues Arising (1)

Answer 22

 Rais Yatim, “Akta Sivil Perlu Dikaji Semula”, Utusan Malaysia, September 2013:
“Akta Sivil 1956 perlu dikaji semula supaya selari dengan amalan dan nilai negara ini sekali gus tidak lagi bergantung kepada sistem barat.”

Question 23

Civil Law Act 1956: Issues Arising (2)

Answer 23

“Undang-undang itu perlu mengambilkira kewujudan sistem di tanah air termasuk pengaruh dari rantau nusantara terutama dari Indonesia, Brunei, Singapura dan selatan Thailand berkaitan berkaitan perundangan jenayah dan dagangan.”

Question 24

Civil Law Act 1956: Issues Arising (3)

Answer 24

“Sebagai contoh kes-kes penting yang dilaksanakan di Indonesia boleh diambil sebagai nas (rujukan) keadilan kerana kita tidak boleh mengharapkan autoriti lama bersandarkan di United Kingdom. Kita mesti cari apa yang berlaku di negara-negara Islam sekiranya sistem itu adil dan saksama.”

Question 25

Civil Law Act 1956: Issues Arising (4)

Answer 25

 Tan Sri Ahmad Ibrahim argued that Section 3 of the Civil Law Act 1956 should be repealed so that Islamic laws and principles should be used to fill in the lacunae in local laws. He stated:
“It is a pity that the opportunity was not taken to repeal Section 3(1) of the Civil Law Ordinance 1956…As the law is being developed in Malaysia through legislation and judicial decisions, there will be less and less need to rely on the English law to fill in any lacunae in the law. Perhaps the time has come to consider whether another method of filling in the lacunae in the law should not be adopted to recognise the fact that Muslim law is the law of the land in Malaysia…”

Question 26

Civil Law Act 1956: Issues Arising (5)

Answer 26

 Farid Sufian argued that English law has been imposed on Tanah Melayu during British intervention without any legal basis – e.g. through the setting up of English styled courts and the appointment of English judges who applied English laws instead of local laws;
 The application of English law was only legalised through Common Law Enactment (Act);

Question 27

Civil Law Act 1956: Issues Arising (6)

Answer 27

 E.g. Government of Perak v A.R. Adams [1914] 2 FMSLR 144: a court in Perak immediately applied English rules in Rylands v Fletcher without attempting to find out the Islamic law or custom on the matter.
 Farid Sufian argued that the courts should have applied local laws, not foreign law. They should have applied to Islamic law and custom as the law of the land.

Question 28

conclusion 1

Answer 28

► Nepline Sdn. Bhd. V Jones Lang Wooten [1995] 1 CLJ 865:
❶ The primary source is written law (if local law exist, cannot use English law);
❷ If no written law, the court should identify the common law as administered in England on 7/4/1956 (for west Malaysia);
❸ Then, the court must consider whether “local circumstances” and “local inhabitants” permit the application of English common law and equity;
❹ If not, the court is then free to develop its own law which may be describe as the Malaysian Common Law by referring to other countries.

Question 29

conclusion 2

Answer 29

▪ Dato’ Abdul Hamid bin Haji Mohamad (2001):
“Saya belum temui suatu kajian tentang mengapa setahun sebelum memberi kemerdekaan kepada Malaya (pada masa itu) undang-undang itu (Akta Undang-Undang Sivil 1956) dibuat. Adakah pihak British ingin memastikan bahawa Malaya yang merdeka akan terus memakai “common law of England” dan “the rules of equity” seperti ia hendak memastikan pemakaian “basic law” di Hong Kong apabila ia hendak menyerahkannya balik kepada China.”

Question 30

conclusion 3

Answer 30

“Untuk lebih adil terhadap niat British, perlu diambil perhatian bahawa peruntukan itu pun tertakluk kepada undang-undang yang akan dibuat oleh badan perundangan di negara ini dan pemakaian “common law of England” dan “the rules of equity” itu pun tertakluk kepada kesesuaiannya dengan keadaan di Malaya, sekarang Malaysia. Pendek kata peruntukan untuk membuat undang-undang baru dan menolak pemakaian “common law of England” dan “the rules of equity” ada. Jika kita tidak memanfaatnya, itu salah kita.”