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1) laws relating to tenure, which development of the land for the purposes of a
are referred to in section 6 of the sugar plantation, and they also granted a
Civil Law Act 1956, must embrace number of charges over the land in favour of the
all rules of law which govern the first appellants, for the purpose of securing the
incidents of the tenure of land and repayment of loans which in November 1977
among these incidents is the right amounted to $5,334,163.60 with interest.
in appropriate circumstances, to
The rent payable by the second appellants in
the grant of relief against forfeiture;
respect of the year 1977 was $124,080 plus
1) the National Land Code is a
education rate of $31,020. By virtue of section
complete and comprehensive code
94(2) of the Code that rent fell due on January 1,
of law governing the tenure of land
1977, and, not having been paid before June 1,
in Malaysia and the incidents of it
1977, fell to be treated as having become in
as well as other important matters
arrear on that date. Accordingly, the Collector of
affecting land and there is no room
Land Revenue for the District, pursuant to
for the importation of any rules of
section 97(1) of the Code, on June 2, 1977
English Law in that field except in
caused to be served on the second appellants a
so far as the Code itself may
notice of demand in terms of Form 6A in the
expressly provide for this.
First Schedule thereto. As required by section 98
the Collector also served a copy of the notice on
Case referred to
the first appellants as chargees, so as to give
Zainal bin Hashim v Govern]ment of Malaysia them the opportunity of paying the rent
[1980] AC 734 742; [1979] 2 MLJ 276 743 themselves if they chose. The notice required
payment of the rent together with penalties
PRIVY COUNCIL APPEAL FROM MALAYSIA within the period of three months. Owing to
misunderstandings between the appellants,
neither rent nor penalties were paid by either of
them within that period. Sections 99 and 100
Stuart McKinnon QC (Chin Yew Meng with him)
of the Code provide as follows: --
for the 1st appellant.
John Stuart Colyer QC (Dato V Jeyaratnam and "99. If the whole of the sum demanded by
any notice under section 97 is tendered to
PS Gill with him) for the 2nd appellant. the Collector within the time specified
therein, the notice shall thereupon cease to
Steward Bates QC (Stephen Allcock with him) have effect, and the Collector shall cancel,
for the respondent. or cause to be cancelled, the note endorsed
pursuant to subsection (2) of that section on
the register document of title to the land to
LORD KEITH OF KINKEL which the notice related.
100. The Collector shall not during the
(delivering the judgment of the Board): These period specified in any notice under section
97 accept the tender by or on behalf of any
consolidated appeals from the Federal Court of person or body of a lesser amount than the
Malaysia raise issues regarding the validity of a sum thereby demanded; and if by the end
notice of forfeiture of alienated land issued of that period the whole of that sum has not
under the relevant provisions of the National been tendered to him, he shall thereupon
by order declare the land forfeit to the State
Land Code 1965 ("the Code"), and also Authority, and the provisions of Part Eight
regarding the jurisdiction of the courts to grant shall have effect with respect thereto
relief against such forfeiture. accordingly."
about by the 1976 rules, by necessary the whole amount is not tendered he has no
implication amended rule 17 by increasing the option but to declare the land forfeit. This is a
$2 there mentioned to $5. In so far, however, as very savage provision, and their Lordships are of
there might be any doubt about this, the the clear opinion that a procedure designed to
amending rules of 1979 were clearly designed to lead to such draconian consequences must be
remove such doubt with an effect retrospective followed out strictly and to the letter, (subject
to the date when the 1976 rules came into force. only to such irregularities in form or service as
Though counsel for the appellants sought are not of a significant nature), under sanction
valiantly to argue that the terms of rule 1 of the that the notice of forfeiture will otherwise be held
1979 rules did not express with sufficient clarity invalid. Their Lordships heard no developed
an intention that the amendment brought about argument as to whether and to what extent the
by rule 2 should affect a pending litigation, such de minimis principle may apply to demands of
as this one, their Lordships regard the excessive monetary amount, and since it is
conclusion that it did so as being truly unnecessary to do otherwise for the purpose of
inescapable. (See Zainal bin Hashim v determining the appeals they prefer to reserve
Government of Malaysia [1980] AC 734 742; their opinion on that matter.
[1979] 2 MLJ 276 743 per Viscount Dilhorne).
The second issue in the appeal is concerned
It follows that the fee of $5 demanded by the with the question whether those equitable rules
Form 6A notice in this case was of the correct of
amount, so that there is no basis for the attack 1984 2 MLJ 87 at 90
on the validity of the notice. But since both the English law which have to do with relief against
courts below dismissed the attack on the validity forfeiture have any application to forfeiture of
of the notice on the ground that, assuming that alienated land duly brought about under the
not only an excessive notice fee but also an Code.
arrears fee $6,000 in excess of the correct
It was argued for the appellants that the
amount had been demanded, this constituted no
provisions of section 418 of the Code (quoted
more than an irregularity in the form of the notice
above) recognised the existence of a jurisdiction
which was not of a significant nature, it is
to grant relief in accordance with these equitable
necessary to say a few words on that aspect.
rules because by sub-section (2) the court was
The matter arises under section 134(2) of the empowered on any appeal to make such order
Code which provides: -- "as it considers just". This must mean, however,
"134.(2) No order of the Collector under
any order considered to be just having regard to
section 100 or 129 shall be set aside by any the substantive law, written or unwritten. So it is
court except upon the grounds of its having necessary to examine the relevant substantive
been made contrary to the provisions of this law to see whether or not it admits of the
Act, or of there having been a failure on the
part of the Collector to comply with the
equitable jurisdiction contended for.
requirements of any such provision; and no
Section 134 of the Code deals with appeals
such order shall be set aside by reason
only of any irregularity in the form or service against forfeiture. Sub-section (2) has already
of any notice under Chapter 2 of Part Six or, been quoted. Sub-section (1) is in these terms:--
as the case may be, Chapter 5 of Part
Seven unless, in the opinion of the court, "The validity of any forfeiture under this Act
the irregularity was of a significant nature." shall not be challenged in any court except
by means of, or in proceedings consequent
upon, an appeal under section 418 against
the order of the Collector under section 100
It is plain that a demand which is excessive in or, as the case may be, 129; and,
amount, whether in respect of arrears fee or notwithstanding anything in any other
notice fee or both, cannot be an irregularity of written law, no such appeal shall be
service. Nor, in their Lordships' opinion, can it commenced after the expiry of the period of
three months allowed for the bringing
properly be regarded as an irregularity in form. thereof by the said section 418."
The sum of money demanded in such a notice is
clearly a matter of substance. By virtue of
sections 99 and 100 of the Code, the whole of Counsel for the appellants maintained that this
the sum demanded under section 97 must be section was concerned only with challenges to
tendered, the Collector is prohibited from the validity of a forfeiture of alienated land, not
accepting a tender of any lesser amount, and if with applications for equitable relief against a
6
forfeiture admitted or held to be valid. For the reasons already given, their Lordships
Accordingly, sub-section (2) did not apply so as are of opinion that the relevant provisions of the
to exclude such an application. Their Lordships Code evince an intention that the English rules
are of opinion that the granting of an application of equity relating to relief against forfeiture
for relief against forfeiture would, consistently should not be available to proprietors of
with the ordinary use of language, constitute the alienated land. Section 3(1) of the 1956 Act
"setting aside" of the order for forfeiture within cannot therefore avail the appellants, since
the meaning of sub-section (2). Further, there these provisions are inconsistent with the rules
are other provisions of the Code which are, in in question.
their Lordships' view, quite inconsistent with the
It is necessary to notice finally section 6 of the
existence of any jurisdiction in the court to grant
Civil Law Act 1956 which provides:--
relief against forfeiture of alienated land. Section
133 makes provision for any proprietor of "Nothing in this Part shall be taken to
alienated land who has incurred a forfeiture to introduce into Malaysia or any of the States
comprised therein any part of the law of
apply to the State Authority for annulment of it, England relating to the tenure or
and gives the Authority absolute discretion to conveyance or assurance of or succession
refuse the application or to allow it conditionally to any immovable property or any estate,
or unconditionally. right or interest therein."
(a) in West Malaysia or For these reasons their Lordships will advise His
any part thereof, apply the Majesty the Yang di-Pertuan Agong that the
common law of England appeals should be dismissed with costs.
and the rules of equity as
administered in England
on the 7th day of April Appeals dismissed.
1956."
Solicitors: Philip Conway Thomas & Co,; Turner
Kenneth Brown; Stephenson Harwood.