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Issue #36/2024 05 September 2024 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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CASE(S) OF THE WEEKMPPL & ANOR v. CAS [2024] 8 CLJ 359 A biological father of a child does not automatically mean that he is the father recognised in law. The presumption under s. 112 of the Evidence Act 1950 provides a cloak that presumes that a father in a lawful marriage is both the biological and legal father of the child. That cloak ought not to be shared with a third party as of right, regardless of whether the third party is the biological father of the child, much less when the third party is unsure and unable to prove his purported paternity. In this light, a forced paternity test on a child is an extreme measure that would invade the personal autonomy of a child, more so, when the child was not seeking to know her paternity. The court's jurisdiction under s. 24(d) of the Courts of Judicature Act 1964, is only over the person and property of an infant; the section does not provide with any enabling power to the courts to order DNA testing. CIVIL PROCEDURE: Jurisdiction - Inherent jurisdiction - Child born during subsistence of valid marriage of parents - Application for deoxyribonucleic acid ('DNA') test to determine paternity of child by third party - Whether DNA test allowed in civil proceedings - Whether written statutory provision or common law provide power for DNA test against adult of child in civil proceedings - Whether inherent jurisdiction under O. 92 r. 4 of Rules of Court 2012 exercised only to prevent procedural injustice - Whether could be invoked to facilitate substantive right EVIDENCE: Presumption - Presumption of fact - Section 112 of Evidence Act 1950 - Birth during marriage conclusive proof of legitimacy - Child born during subsistence of valid marriage of parents - Application for deoxyribonucleic acid ('DNA') test to determine paternity of child by third party - Whether paternity and legitimacy two different concepts - Whether legitimacy of child fact in issue - Whether evidence could be admitted to rebut presumption - Whether 'conclusive proof' in s. 112 bars admissibility of scientific evidence to prove paternity of child born out of wedlock - Evidence Act 1950, s. 4(3) FAMILY LAW: Children - Legitimacy - Child born during subsistence of valid marriage of parents - Application for deoxyribonucleic acid ('DNA') test to determine paternity of child by third party - Whether paternity and legitimacy two different concepts - Whether legitimacy of child fact in issue - Whether evidence could be admitted to rebut presumption - Whether 'conclusive proof' in s. 112 bars admissibility of scientific evidence to prove paternity of child born out of wedlock - Whether DNA test allowed in civil proceedings - Evidence Act 1950, s. 4(3) FAMILY LAW: Children - Paternity - Child born during subsistence of valid marriage of parents - Application for deoxyribonucleic acid ('DNA') test to determine paternity of child by third party - Whether paternity and legitimacy two different concepts - Whether legitimacy of child fact in issue - Whether evidence could be admitted to rebut presumption - Whether 'conclusive proof' in s. 112 bars admissibility of scientific evidence to prove paternity of child born out of wedlock - Whether DNA test allowed in civil proceedings - Whether protective jurisdiction of parens patriae successful - Whether best interest and welfare of child outweighs 'right to know' - Whether DNA test would be damaging and disrupting to child's status quo - Rules of Court 2012, O. 92 r. 4 - Evidence Act 1950, s. 4(3) JUDICIAL QUOTES“Grandparents undoubtedly hold a distinctive and valuable place within the family dynamics. Their wisdom, experience, and unconditional love often enrich the lives of their grandchildren in profound ways. However, it was crucial to acknowledge that their role is not intended to supplant that of parents but rather to complement and bolster it. They may step in as caregivers, particularly in situations where parents are unavailable due to work commitments, illness, or other responsibilities. Their support can be invaluable in easing the burdens of modern family life and providing a safe and nurturing environment for grandchildren to thrive.” “However, maintaining a delicate balance in the grandparent-grandchild relationship is essential. While grandparents may offer valuable guidance and advice, it is crucial to respect the autonomy of the parents and their authority in decision-making regarding their children, particularly in situations where parents and grandparents are at odds.” - Per Evrol Mariette Peters J in HOM v. HOP [2024] 8 CLJ 35 LATEST CASESLegal Network Series
CLJ 2024 Volume 8 (Part 2) To require a judgment creditor to embark on the whole process of initiating bankruptcy proceedings afresh,
by reason of a typographical and inadvertent error,
does not serve the purpose and intent of the Insolvency Act 1967 but,
conversely,
results in considerable delay and expense and,
more significantly,
dissipation of the judgment debtor's estate. Each case ought to be perused with care and caution to ascertain whether the error in the creditor's petition is substantiated,
going to the root of the act of bankruptcy or to the viability of the creditor's petition or,
on the other hand,
an error that is capable of remedy by reason that it is de minimis and/or inadvertent and causes no substantive prejudice to the judgment debtor. As to whether the termination of a creditor's petition terminates the entirety of the bankruptcy proceedings,
this is most likely the case if the matter is heard and disposed of on its merits. Such a decision may be appealed upon and any final adjudication on the matter would be the determination of such termination. BANKRUPTCY BANKRUPTCY: Creditor's petition - Withdrawal - Issuance of bankruptcy notice - Judgment debtor filed application to set aside bankruptcy notice - Registrar held that act of bankruptcy had occurred as if there was no application to set aside - Judgment creditor filed creditor's petition - Registrar allowed judgment creditor to withdraw creditor's petition with liberty to file afresh and ruled that all bankruptcy proceedings stood terminated by reason solely of withdrawal - Whether there was act of bankruptcy that could be relied on pending disposal of application for setting aside of bankruptcy notice - Whether there was basis to file creditor's petition - Whether withdrawal of creditor's petition would terminate all bankruptcy proceedings including bankruptcy notice - Insolvency Rules 2017, r. 93
NALLINI PATHMANATHAN FCJ
(i) Where the proviso to s. 340(3) of the National Land Code ('NLC') is invoked as a defence by a subsequent purchaser in a challenge to his title,
he must prove that he had purchased the land in good faith and for valuable consideration although,
by the operation of s. 89,
the registration of the title in his name is 'conclusive evidence' that he is the owner of the land. For what it seeks to accomplish,
s. 340(3) of the NLC serves as a safe haven for bona fide purchasers for valuable consideration but an albatross around the neck of dishonest subsequent purchasers; (ii) In proving good faith and valuable consideration under s. 340(3) of the NLC,
obviously it cannot be done just by looking at the register document of title. That would be sufficient for the purpose of ascertaining who the registered owner of the land is as the register document of title accurately reflects (mirrors) all vital details with regard to the land's registered owner and the conditions,
restrictions et cetera that the land is subject to. It must be appreciated that the intention behind the proviso to s. 340(3) is to conciliate and strike a balance between the rights and interests of the innocent subsequent purchaser and the rights and interests of the unfortunate original landowner who had been dispossessed of his land by fraud. LAND LAW | CIVIL PROCEDURE LAND LAW: Indefeasibility of title and interest - Forged instruments - Transfer of land - Interest of subsequent purchaser - Whether subsequent purchaser purchased land in good faith and for valuable consideration - Whether vesting of title under s. 89 of National Land Code only conclusive evidence of ownership and not of indefeasibility of title - Whether registration of title sufficient to confer indefeasible title - Whether s. 340(3) of National Land Code ('NLC') determines indefeasibility of title - Whether there was compelling evidence of bad faith from all involved in fraudulent scheme to deprive deceased of land - Whether subsequent purchaser proved to be immediate purchaser - Whether title to land consequently defeasible and liable to be set aside under s. 340(2) of NLC LAND LAW: Indefeasibility of title and interest - Transfer of land - Allegation of fraudulent transfer of land - Interest of subsequent purchaser - Whether subsequent purchaser purchased land in good faith and for valuable consideration - Whether vesting of title under s. 89 of National Land Code only conclusive evidence of ownership and not of indefeasibility of title - Whether registration of title sufficient to confer indefeasible title - Whether s. 340(3) of National Land Code ('NLC') determines indefeasibility of title - Whether there was compelling evidence of bad faith from all involved in fraudulent scheme to deprive deceased of land - Whether subsequent purchaser proved to be immediate purchaser - Whether title to land consequently defeasible and liable to be set aside under s. 340(2) of ('NLC') CIVIL PROCEDURE: Judgments and orders - Judgment in default - Setting aside - Effect of - Whether to nullify fraudulent transactions and dealings in land - Whether there was legal basis for cancellation of deceased's title and issuing replacement title in another party's name - Whether replacement title of land rendered void ab initio - Whether there was failure to obtain order under O. 42 r. 7(2) of Rules of Court 2012 that order should take effect from earlier date - Whether setting aside of judgment in default could operate retrospectively - Whether there was 'ipso facto antedating' of court order - Whether retrospective application must be specifically applied for
ABDUL RAHMAN SEBLI CJ (SABAH & SARAWAK)
(i) Based on s. 17(1) and (2) of the Construction Industry Payment and Adjudication Act 2012,
a claimant can only withdraw the adjudication proceedings after the appointment of an adjudicator by serving a notice of withdrawal in writing on the respondent and the adjudicator. Section 17(2) states that the claimant 'shall' bear the costs arising out of the withdrawal of the adjudication proceedings unless the adjudicator orders otherwise,
which implies that the costs for the withdrawal can only be decided by an adjudicator. Accordingly,
if an adjudicator has not been appointed,
there is no requirement for a claimant to withdraw an adjudication because there is no adjudicator to decide on who should bear the costs for the withdrawal and its amount; (ii) When an adjudicator has not been appointed,
an adjudication proceeding has not been instituted. CONSTRUCTION LAW CONSTRUCTION LAW: Adjudication - Adjudication decision - Application to set aside - Whether adjudicator committed breach of natural justice - Whether first adjudication proceedings had been instituted - Whether adjudicator had been appointed - Whether first adjudication proceedings ought to be withdrawn pursuant to s. 17 of Construction Industry Payment and Adjudication Act 2012 before commencing second adjudication proceedings - Construction Industry Payment and Adjudication Act 2012, ss. 8(1), 16 & 17(1), (2) CONSTRUCTION LAW: Adjudication - Adjudication decision - Stay - Whether there were clear errors in adjudication award - Whether requirements under s. 28 of Construction Industry Payment and Adjudication Act 2012 fulfilled
KAMALUDIN MD SAID JCA
In a taxing Act,
one must look merely at what is clearly said. There is no room for any intendment; no presumption as to tax,
nothing is to be read in and nothing is to be implied. The activity of generating electricity is not expressly excluded as manufacturing under the Income Tax (Prescription of Activity Excluded from the Definition of Manufacturing) Rules 2012. If it was intended to be excluded,
it would have been expressly provided so. The generation of electricity is to be treated just like any other manufacturing plant or factory that manufactures goods or other articles and falls squarely within the meaning of 'manufacturing'. The claimant is eligible to re-investment allowance under Schedule 7A of the Income Tax Act 1967. REVENUE LAW | WORDS & PHRASES REVENUE LAW: Income tax - Re-investment allowance - Eligibility - Whether claimant involved in business of manufacturing electricity - Whether service provider - Whether generation, transmission and distribution of electricity amounted to manufacturing of electricity - Whether generating of electricity from activity of manufacturing expressly excluded under Income Tax (Prescription of Activity Excluded from the Definition of Manufacturing) Rules 2012 - Whether claimant entitled to claim re-investment allowance - Income Tax Act 1967, Schedule 7A WORDS & PHRASES: 'manufacturing' - Meaning of - Whether generation, transmission and distribution of electricity amounted to manufacturing of electricity - Whether dictionary meaning applicable
KAMALUDIN MD SAID JCA
In an application for stamp duty remission on a financing agreement,
the instrument which is entitled for a remission is,
inter alia,
a loan instrument without security repayable on demand. The word 'security' in a remission order is not limited to instruments which form an encumbrance on property which the lender can rely on for the purpose of securing the repayment of a debt,
but has a wider meaning where it also includes the undertaking and guarantee provided by a third party. As such,
a facility agreement,
secured by a letter of undertaking issued by a State Government,
constitutes a security for a loan and provides a complete assurance for the repayment of a loan. Since the loan instrument is secured by a State Government's letter of undertaking,
it therefore does not fall within a remission order. REVENUE LAW | WORDS AND PHRASES REVENUE LAW: Stamp duty - Remission order - Entitlement - Loan obtained by state entity - Whether facility agreement secured by letter of undertaking from State Government - Whether State Government accountable for loan facility - Whether letter of undertaking a separate instrument serving as clear assurance that State Government would take full responsibility for loan amount - Whether letter of undertaking provides exceptional security for repayment of loan amount - Whether loan instrument fell within remission order WORDS AND PHRASES: 'security' - Meaning of - 'Security' in remission order - Whether ought to be given wide meaning - Whether limited to instruments forming encumbrance on property which lender could rely on for purpose of securing repayment of debt - Whether includes undertaking and guarantee provided by third party
AZIZAH NAWAWI JCA
(i) Mahkamah mempunyai bidang kuasa untuk mendengar permohonan dan mengeluarkan perintah anggapan kematian bawah s. 108 Akta Keterangan 1950 walaupun tiada apa-apa prosiding di mahkamah yang melibatkan pemohon selain daripada permohonan anggapan kematian; (ii) Anggapan kematian perlu dilakukan dengan berhati-hati kerana akan memberi kesan pada undang-undang berkaitan perwarisan harta si mati. Dengan itu,
mahkamah harus berpuas hati bahawa penama tidak ditemui atau didengari selama tujuh tahun dan orang yang mengesahkan penama tidak didengar atau ditemui haruslah individu yang wajar mempunyai pengetahuan tentang penama. KETERANGAN KETERANGAN: Anggapan - Kematian - Permohonan deklarasi bahawa penama meninggal dunia - Sama ada mahkamah mempunyai bidang kuasa mendengar permohonan dan mengeluarkan perintah anggapan kematian walaupun tiada prosiding di mahkamah yang melibatkan pemohon - Sama ada penama tidak ditemui atau didengari selama tujuh tahun - Sama ada orang yang mengesahkan penama tidak didengar atau ditemui adalah individu yang wajar mempunyai pengetahuan tentang penama - Sama ada anggapan kematian perlu dilakukan dengan berhati-hati - Akta Keterangan 1950, s. 108
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