RECEPTION OF ENGLISH

LAW IN MALAY STATES

• 2 ways how English law was introduced into the Malay
states.
• i. Indirect way
• -Number of laws were enacted following English or English
based legislation.
• For example Penal Code, Evidence Ordinance, Contract
Ordinance and other legislations following the Indian
models.

• - Through decisions of the judges in the court who were

English men or English trained who normally resorted to
English law in deciding the cases.
CASES
• Mohamed Gunny v.Vadwang Kuti

• Burton J:
• “Although no code of civil wrongs has ever been
passed, the courts in this country in matter of tort
have always followed the law of England”
• Government of Perak v. A.R Adams
• Facts: Plaintiff had granted a land to the plaintiff
predecessor in title. The plaintiff road adjoined the
land. The defendant had in the course of cultivating
the land, caused silt from the land to be deposited
on the road and the drains alongside it. The
defendant knew of the damage being caused to the
road but he took no steps to remedy the situation.
• Woodward CJ:
• “ in dealing with cases of tort, the court had always
turned for guidance, as to fundamental principles to
English decisions.”
• Held: It had jurisdiction to hear the case and
accordingly found the defendant liable in damages.
• -In deciding the decision the judge had referred to a
maxim laid down in Ryland v. Fletcher where the
occupation of land had always been held in England
to impose upon the occupant the duty of using it as
not to injure his neighbor.
• Motor Emporium v. Arumugam:

• Terrel Ag CJ:
• “ …..the courts in Federated Malay States on many
occasions acted on equitable principles, not because
English rules of equity apply but because such rules
happen to conform to the principles of natural
justice..”
• In applying principles of English law judges had reminded
the lawyers that they were not in fact in England and that
there local legislations in existence.

• Leonard v. Nachiappa Chetty:

• Reay CJ:
• “…Before reliance can be placed on points of procedure it is
necessary in the first instance to examine carefully our local
law and to ascertain what it is and to what extent it
resembles or differs from English law. This seem a self
evident proposition but it is nevertheless too often
overlooked by the counsel”
• Hj. Abdul Rahman v. Mohamed Hassan:

• Lord Dunedin:
• “ It seems to their Lordships that the learned judges in these
observations have been too much swayed by the doctrines of
English equity, and not paid sufficient attention to the fact
that they were dealing with a totally different land law
namely a system of registration of title contained in a
codifying enactment.”
• ii. Direct way
• English law was given statutory authority by the
Civil Law Enactment 1937.
• S. 2 (1)-provides the application of common law of
England and rules of equity in the FMS provided
that it is suited to the local circumstances
• This Enactment originally applied only to FMS and
later it was extended to the UFMS by the Civil law
(Extension) Ordinance 1951 later. The 1937
Enactment was repealed by Civil law Ordinance
1956 which applied to the whole at the Federation
at Malaya.
STATUS AND SOVEREIGNTY
OF MALAY RULERS
DOES THE RESIDENTIAL SYSTEM AFFECT THE
SOVEREINTY OF MALAY RULERS?
• Mighell v. Sultan of Johore:
• Facts: The defendant (Sultan Abu Bakar) using the
name of Mr. Albert Baker proposed and promised
marriage with the plaintiff (an English lady). He
broke the promised and left England. However he
later came back and the plaintiff sued him.

• Issue: Whether action can be taken against the

Sultan of Johore for breach of promise to marry.
• The court asked the colonial office to ascertain his position
and a letter was sent to confirm his status.

• Court of Appeal: English courts have no jurisdiction over the

sultan, who was an independent foreign sovereign, unless he
consented to submit to the jurisdiction of the English courts.
Such a jurisdiction cannot take place until the jurisdiction
had been invoked. The fact that the defendant Sultan had
been residing in England for some time, and had entered
unto a contract therein under an assumed name, as if a
private individual did not ammount to a submission
• To the jurisdiction or rendered him liable to be sued for
breach of contract.
• Anchom bt. Lampong v. PP
• The appellant together with another person were
charged and convicted with the offence of adultery
under the offence by Mohammedans Enactment
No. 47 of 1937. They were each sentence to a short
term of imprisonment. This term of punishment
was inconsistent to the original punishment with
stone to death for committing adultery.
• Issue: Whether the Enactment was valid or ultra ires the
Johore State Constitution.

• Magistrate ct:
• “… the Constitution of Johore is not a rigid constitution. It is
in the nature of the Enactment which can at any time be
amended or varied and therefore has the force of law…the
court has no power to pronounce on the validity or invalidity
of any Enactment passed by the council of the State and
assented to by the Sultan, any more than the English courts
could pronounce an Act of parliament to be invalid. To hold
otherwise would be to ignore the sovereignty of the Sultans.
• Pahang Consolidated Co. Ltd. V. The State of
Pahang
• Facts: The appellants were granted a lease of the
large tin mine in Pahang in 1809 for 77 years with
full mining rights in respect of tin and other mineral
obtainable from the are covered by the lease. A law
was passed in 1931 which adversely affected these
rights.
• Issue: Did the law apply to the appellant and if so
can the appellants recover damages from the state
of Pahang/

• Trial ct and Court of Appeal: Disallowed the claim.

• Appeal to Privy Council: “Suit against respondent
could not be maintained because Pahang was one
of the sovereign Federated Malay States.
• Duff Development v. The Government of Kelantan
& Anor
• Facts: In 1905 agreement was made between the appellant
and respondent where appellant acquired certain
commercial rights and privileges in the state of Kelantan. This
agreement was subsequently replaced by an agreement in
1915 in which appellant was granted certain lain in the state.
Dispute arose and this was referred to an arbitrator. The
state contested the action but nevertheless appeared during
the arbitrator proceedings.

• Issue: Whether having appeared before the arbitrator the

state could be deemed to have waived its immunity and had
submitted itself to the jurisdiction of the courts.
• Held: The court had no jurisdiction over the
Government of Kelantan in view of the certificate
from the colonial office that Kelantan was an
independent state in the Malay Peninsular and that
its Sultan was a sovereign monarch in his own right.