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CASE(S) HIGHLIGHT
ABDUL RAZAK JUNDAR KHAN & ORS v. MUSTAPHA MOHAMMED & ORS
COURT OF APPEAL, PUTRAJAYA
AHMADI ASNAWI JCA; AB KARIM AB JALIL JCA; SURAYA OTHMAN JCA
[CIVIL APPEAL NO: W-02(NCC)(W)-1929-09-2018]
19 SEPTEMBER 2019
The basic principle of construction of contracts is that effect must be given to the intention of the parties. This requires an objective test and not a subjective approach, and the solution to be found should be reasonable and realistic.
To ascertain the intention of the parties, the court must read the terms of the contract as a whole including the recital to the agreement if any, must not take a simplistic approach to the issues at hand, and must not fixate on one particular word or phrase or clause to the neglect of the overall purpose of the document.
Judgment
CASE(S) OF THE WEEK
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DATUK SERI ANWAR IBRAHIM v. GOVERNMENT OF MALAYSIA & ANOR
[2020] 3 CLJ 593
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; AZAHAR MOHAMED CJ (MALAYA); DAVID WONG DAK WAH CJ (SABAH AND SARAWAK); MOHD ZAWAWI SALLEH FCJ;
ABANG ISKANDAR FCJ; IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ
[CIVIL REFERENCE NO: 06(RS)-1-03-2019(W)]
11 FEBRUARY 2020
The referral jurisdiction of the Federal Court is governed by the principles, firstly that it should be construed in the light of art. 128(2) of the Federal Constitution and s. 84 of the Courts of Judicature Act 1964, secondly that the said s. 84 is not a carte blanche for all constitutional questions to be referred to it, and thirdly that although the Federal Court is the court of last resort in respect of constitutional issues, it does not pronounce, subject to the narrow exception that it retains a discretion to depart from the trite rule in exceptional circumstances, on abstract, academic or hypothetical issues, or on such issues as are bereft of an actual or real controversy. And so it must follow that, where a constitutional challenge is mounted by an applicant on the basis of the mere existence of a law, without at the same time showing that the law is being invoked to violate his or anyone's rights or interests, and without demonstrating that the application is falling within the exceptional category, the Federal Court must decline to entertain such an application or answer the constitutional questions posed. Such an application is clearly abstract and purely academic in nature, and bereft of any actual controversy.
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ASIA PLYWOOD COMPANY SDN BHD v. AEON CO (M) BHD & ANOR
[2020] 3 CLJ 685
HIGH COURT MALAYA, KUALA LUMPUR
ALIZA SULAIMAN JC
[ORIGINATING SUMMONS NO: 24NCVC-1425-09-2014]
26 JULY 2019
An order of the High Court or the Court of Appeal ordering the Registrar to assess damages in favour of the plaintiff for an alleged wrong committed by the defendant presupposes the defendant's liability to pay damages therefor. Such an order makes it incumbent on the Registrar to only hear evidence on the purported loss suffered by the plaintiff and thereafter to assess the appropriate quantum to be awarded. The Registrar must not again seek to determine whether the plaintiff had actually suffered damages arising from the wrong, let alone to come to a conclusion that the plaintiff has not, on the facts and in the circumstances, suffered any loss or damage. It needs no reiteration that any such decision of the Registrar is erroneous, and bound to be reviewed and set aside.
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JULITA TINGGAL v. KWAN AH HEE (DECEASED) & ORS
[2020] 3 CLJ 712
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
SUPANG LIAN J
[JUDICIAL REVIEW NO: BKI-13NCVC-17-10-2017 (HC2)]
01 AUGUST 2019
The three-member panel of the Sabah Native Court of Appeal, which comprises a High Court Judge and two District or Native Chiefs stand on equal footing to each other as members of the panel. In the event, where the court is minded to pass a majority judgment with the learned Judge being the dissenting opinion, the concurring judgments of the two Chiefs must prevail as the final judgment of the court. This is in accord with the plain meaning of s. 24 of the Sabah Native Courts Enactment 1992. It is also notable that the two Chiefs were sitting as equal members of the panel and not as "assessors sitting with a Judge" prescribed in s. 40D of the Land Acquisition Act 1960. That being so, the ratio as enunciated by the Federal Court in Semenyih Jaya does not therefore apply to the two Chiefs.
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JUDICIAL QUOTES
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"The question was, did the Attorney General and/or his officers have the standing to appear and attend at the leave stage of a judicial review proceedings notwithstanding that he was not representing the putative respondents. There are ample authorities to say that they have. We refer to art. 145 of the Federal Constitution. Further, in a judicial review application, under O. 53 of the Rules of Court 2012, the application must be served on the Attorney General. This rule is based on the principle that judicial review is a principal tool of "public law" applicable to "public" bodies. As public bodies impliedly attract public interest and the guardian of public interest is the Attorney General, this makes the Attorney General a nominal party in all judicial review applications. The intention of the rule is to ensure that the Attorney General vets all judicial review applications in order to ascertain if his participation is warranted. Whether the Attorney General elects to appear or not is solely his discretion and if he elects to appear, the court is bound to give a hearing" – per Stephen Chung JCA in Messrs Tai Choi Yu & Co, Advocates v. Arifin Zakaria & Anor [2020] 2 CLJ 508
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ARTICLE HIGHLIGHT
Carlill v Carbolic Smoke Ball Co : A Landmark Decision Which Came Amid An Epidemic
Know the Law
Placebos and fake medicines promising cures emerge whenever society is faced with epidemics. There will be elements in society, who will try to make quick money through offers of magical cures by exploiting the gullible sections in the wake of the inability of established medicinal systems to offer ready remedies to a novel disease.
One such attempt by a company during the influenza epidemic in England led to the birth of a landmark decision in contract law and consumer rights : Carlill v Carbolic Smoke Ball Co(1892).
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Govt to introduce new legislation over meetings, as firms uncertain about how to comply with COVID-19 rules
SINGAPORE
Legislation
New legislation to provide 'legal certainty' on meetings The Government will introduce new legislation to provide clarity over how meetings are conducted, the Ministry of Law and Ministry of Finance said in a media release on Tuesday (Mar 31).
This comes after businesses voiced concern about how they should comply with new COVID-19 rules on gatherings while also acting in accordance with legal provisions governing meetings. Last week, the authorities announced tighter measures to minimise the spread of COVID-19, including limiting gatherings outside school and work to a maximum of 10 people. The regulations came into force last Friday.
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Zoom sued for allegedly sharing users' personal data with Facebook
US
Video-conferencing tool Zoom allegedly shared users' personal data with Facebook
Zoom Video Communications is facing increased scrutiny over customer privacy this month as New York's top prosecutor is probing the suddenly popular teleconferencing company's security practices during the coronavirus work-from-home movement . Zoom also is being sued in California for allegedly giving users' personal data to outside companies including Facebook without fully informing customers that's the case.
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Sukuk issuance to remain stable at $180b in 2020 despite Covid threat
Islamic finance
Sector will continue to expand rapidly in Malaysia Islamic finance is set to keep expanding in 2020 and beyond as the GCC countries and Malaysia help drive growth in Shariah-compliant financial products.
Sukuk issuance is set to remain stable at around $180 billion this year in spite of the coronavirus pandemic outbreak, but a prolonged market disruption could dissuade issuers from coming to market, Moody's Investors Service said on Monday.
"Islamic finance is set to keep expanding in 2020 and beyond as the GCC countries and Malaysia help drive growth in Shariah-compliant financial products," Moody's said in a report.
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Covid-19: Six month exemption for over 30,000 employers
Employment
Six-month levy exemption for employers registered with Human Resource Development Fund
More than 30,000 employers registered with the Human Resource Development Fund (HRDF) will be given a six-month levy exemption from April to September. Human Resources Minister Datuk Seri M. Saravanan (pix) in a statement yesterday said the initiative was a government effort to safeguard the welfare and alleviate the burdens of employers and the people as a result of the Covid-19 outbreak, while ensuring that the local labour market remained resilient.
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