Byelaw 87A made under the Sanitary Boards Enactment is void in so far as it prescribes a fine not exceeding RM10 in respect of every animal which is found straying or grazing in a prohibited area under the enactment.

Muthukaruppan Chetty v Public Prosecutor [1941] MLJ 29 High Court, Federated Malay States (Horne J).

The mere keeping of pigs in one's premises is no offence under the Conservancy Act XIV of 1856 and Ordinance 2 of 1879; to bring the case within s 43, it must be shown that the premises are 'in or near any street' and such 'street' is within the prescribed limits. A licence to keep a slaughterhouse necessarily implies a right to have pigs on the premises at least to slaughter.

Municipal Commissioners v Chuah Seng [1882] 3 Ky 140 High Court, Straits Settlements (Ford J).

An instrument executed under s 148(5) of the Municipal Ordinance (Cap 133) by the Singapore Improvement Trust purporting to be a record of an acquisition of land made by the Municipal Commissioners in pursuance of an order passed by the Governor-in-Council is 'a conveyance' within the meaning of, and is liable to ad valorem duty under the Stamp Ordinance.

Singapore Improvement Trust v Commissioner of Stamps [1937] MLJ 107 High Court, Straits Settlements (Horne J).

When land was acquired for backlane purposes under s 48 of the Municipal Ordinance, interest was payable on such compensation from the date the right to retain possession was lost by the owner. It was payable in accordance with general equitable principles and not under s 110 of the Singapore Improvement Ordinance. The rate of such interest should be a reasonable rate; and in the circumstances of the case, such rate should be limited to 5%.

Alkaff & Co v Singapore Improvement Trust [1937] MLJ 1 High Court, Singapore (Adrian Clark J).

[Annotation: Singapore Improvement Trust v Aljunied [1935] MLJ 170; [1935] SSLR 184 not followed. Inglewood Pulp & Paper Co Ltd v New Brunswick Electric Power Commission [1928] AC 492 followed.]

In applying the provisions of s 141 of the Ordinance No 135 (Municipal) to those of s 144, in s 141(13) the word 'Commissioners' must be read as 'the Board' and the provisions of Part VIII of the Singapore Improvement Ordinance 1927 (as amended) must be applied to a claim by a person interested in a backlane, though s 105(1) of that ordinance clearly deals with other matters. By reason of the definition of the word 'owner' in s 3 of Ordinance 135 (Municipal), the Commissioners or the Singapore Improvement Trust can pay compensation payable in respect of an acquisition for backlane purposes to the persons specified in that definition. A single trustee cannot agree to the amount of compensation and a mere agent is not a 'person entitled' so as to enable him to agree to the amount of such compensation. Section 105A of the Singapore Improvement Ordinance as amended applied to such a case and interest will be payable on the compensation moneys in accordance with the principles therein laid down.

Singapore Improvement Trust v Aljunied [1935] MLJ 170 High Court, Straits Settlements (Terrell J).

The Commissioner of Lands was an ex officio member of the Singapore Improvement Trust. Upon application made by the Singapore Improvement Trust, the Governor-in-Council appointed the Commissioner of Lands to inquire and report on three backlane proposals made by the Singapore Improvement Trust under s 144 (1) of Ordinance No 135 (Municipal) and s 2(2) of the Singapore Improvement Ordinance 1927. That officer inquired and reported and subsequently the Governor-in-Council made a backlane order in each of the three cases. The applicants applied for a writ or writs of certiorari to quash the orders on grounds of bias and breach of natural justice. On such applications, a rule was made to show cause why a writ or writs of certiorari should not issue. His Excellency The Governor and the Officer Administering the Government showed cause before Mr Justice Whitley, Ag CJ, who discharged the rule. On appeal to the Court of Appeal (Terrell Ag CJ, Thomas CJ (FMS) and Howes J),

Held, (Thomas CJ dissenting): (1) the orders could properly be made personally against the Governor and the Officer Administering the Government respectively; (2) the Commissioner of Lands in inquiring and reporting on the backlane proposals and making recommendations to the Governor-in-Council was acting in a quasi-judicial capacity and the order of the Governor-in-Council must be treated as a quasi-judicial act; (3) justice must not only be done but must also be seen to be done. The fact that the Commissioner of Lands, who as a member of the Singapore Improvement Trust, had approved the backlane schemes, had subsequently as the officer appointed under s 144(1) of the Municipal Ordinance, inquired into the merits of the schemes, resulted in a suspicion that justice might not be done. The Commissioner of Lands was therefore disqualified from acting in the latter capacity irrespective of his actual conduct of the inquiry; (4) to constitute waiver, it must be shown that the applicant, being aware of the point of objection that might be taken, refrains from taking it; and on the part of his solicitor there must be an intention to forgo his client's right of objection.

Alkaff & Co v The Governor-in-Council & Ors [1937] MLJ 211 Court of Appeal, Straits Settlements (Terrell Ag CJ, Thomas CJ (FMS).

A boundary wall is a 'building' within the meaning of ss 151 and 152 of the Municipal Ordinance (XV of 1896), but not within the meaning of the municipal byelaws with respect to new streets and buildings.

R v Angullia [1897] 5 SSLR 41 Court of Appeal, Straits Settlements (Collyer Ag CJ, Law, Leach and Hyndman-Jones JJ).

Under s 58(1)(j) of the Municipal Ordinance (Cap 133), power is conferred on the Municipal Commissioners to make byelaws for the regulation of buldings and building operations. By s 143(1)(m), it is provided that such power shall include power to make byelaws for 'the construction and level of arcades or pavements for the use of foot passengers along that part of any building which abuts on a street'. The Singapore Municipal Commissioners under those powers passed a byelaw (Byelaw 121) stipulating that any person 'who shall erect a building which abuts on a street or road shall provide a verandah-way or an uncovered footway of the width of at least seven feet'.

Held, by the Court of Appeal (Terrell Ag CJ and Howes J, Thomas CJ (FMS) dissenting): (1) the byelaw is intra vires, if it is applied to a new bulding or to any building operation which involves the substantial reconstruction of an existing building; (2) the expression 'erect a building' in the byelaw should be given its ordinary meaning, that is, of erecting a new building or making a substantial reconstruction of an existing building; (3) the statutory definition of 'erect' laid down by s 144(10) of the ordinance is confined to s 144 itself and not to any other part of the ordinance or to the byelaws.

Municipal Commissioners v Alkaff [1937] MLJ 183 Court of Appeal, Straits Settlements (Terrell Ag CJ, Thomas CJ (FMS).

[Annotation: In view of the above decision, ss 58, 143 and 144 of the Municipal Ordinance were amended by Ordinance No 25 of 1938. For a Privy Council case on uncertainty and ultra vires in connection with byelaws, see R v Broad [1915] AC 1110 following Kruse v Johnson [1898] 2 QB 91 and Nash v Finlay (1901) 85 LT 628.]

On 5 June 1964, the applicant made an ex parte application for leave to apply for an order of certiorari to remove into the court and quash a decision of the respondent concerning the approval of certain site and building plans constituting a housing scheme at Province Wellesley. An order was made on the same day granting the application and the said order provided that service of the intended application should be effected on the respondent and the developers and that the building operations should be stayed. In pursuance of this, the applicant filed a motion on 12 June 1964 accompanied by a statement of the applicant dated 4 June 1964 and further affidavit affirmed on 11 June 1964. The notice of motion together with the statement and the affidavit were duly served on the respondent and the developers. On 19 June 1964, the respondent filed a notice of motion asking for an order that the order of court dated 5 June 1964 and all subsequent proceedings therein might be set aside for illegality or, alternatively, for irregularity on the following grounds: (i) the applicant failed to file, as an exhibit to the affidavit supporting his application for leave, the decision of the respondent sought to be quashed as required under O 59 r 3(2) of the English RSC; (ii) the order that building operations on the site of the said lots be stayed was ultra vires the powers of the court under O 59 r 3(4) on the ground that 'building operations' are not within the meaning of the words 'proceedings in question' in the said rule and also on the ground that the said order affected the rights of third parties and could not be made on an ex parte application; (iii) the order dated 5 June 1964 was obtained by a suppression of material facts and failure to disclose the relevant law and the applicant had failed to show uberrima fides. It was also raised as preliminary points that the developers had no locus standi to support the respondent and that the order staying the building operations was not an order against the respondent and, therefore, could not be challenged by the respondent. The judge ruled that as the order complained of ordered that the applicant's motion should be served on the developers, and as this was done, they were entitled to be heard as provided in O 59 r 7, whether or not they had given notice and, further, that the said order was an order against the respondent.

Held: (1) applying r 8(1) to the existing local conditions, its effect is that a copy verified by affidavit must be lodged in court before hearing of the motion for the order of certiorari; (2) as both in the present case and the Newington Licensing Justices' case [1948] 1 KB 681, what was permitted to be done could not be done without permission and the decision to grant the permission was the subject of complaint, and in both cases the rights of third parties were affected, it could not be said that the order of 5 June 1964 was ultra vires nor that the application could not be made ex parte; (3) on the plain meaning of the words of the English O 59 rr 3(1) and (2) and 8(1), it is not essential for the copy of the order sought to be quashed to be exhibited to an affidavit prior to the ex parte application for leave to apply nor for such copy to be filed in court at that stage;there was no evidence that the applicant had failed to show uberrima fides by a suppression of material facts and failure to disclose the relevant law.

Yegappan v District Council Central, Province Wellesley [1964] MLJ 328 High Court, Penang (Hepworth J).

This was a motion for an order of certiorari to remove to the court and quash a decision of the District Council Central, Province Wellesley, approving the site plan and building plans constituting a housing scheme in Penang. The applicant was the owner of a bungalow and land adjacent to the land to be affected by the housing scheme. A preliminary point was raised and argued that, on the facts of the case, certiorari did not lie on the ground that the acts of the council were administrative and that, in any event, the evidence did not disclose that the council had acted in excess of jurisdiction. It was further argued that the council did not act in excess of its jurisdiction but what it had done was to misconstrue the byelaws and had wrongfully exercised its jurisdiction.

Held: (1) as the applicant in this case was given a hearing for the purpose of considering what his submissions and objections were and the decision was arrived at after hearing him, the discretion which was exercised by the district council was a judicial discretion and, therefore, certiorari lay to quash it; (2) the approval of the plan in this case in breach of the byelaws and without carrying out the procedure laid down in the Municipal Ordinance (Cap 133) constituted an act in excess of the council's jurisidiction; (3) the court will exercise its discretion in this case in favour of the applicant, as the development of the land adjacent to the applicant's land otherwise than in accordance with the ordinance and the byelaws will affect the land and its value, and there was no evidence to show that more damage will be done by granting the application than by refusing it.

Yegappan v District Council, Province Wellesley (No 2) [1965] 1 MLJ 63 High Court, Penang (Hepworth J).

[Annotation: Reversed on appeal. See case digested at para 10. [1966] 2 MLJ 177.]

This was an appeal against the decision of the High Court which had issued an order of certiorari to quash the decision of the District Council Central, Province Wellesley, in approving the site plan and building plans constituting a housing scheme ([1965] 1 MLJ 63). The trial judge had found that the applicant had status to seek the order of certiorari because as the owner and occupier of the land adjacent to the land which it was proposed to develop, 'he could expect that the development will be in compliance with the relevant byelaws and the section of the Municipal Ordinance'. He also found that there had been an error on the face of the record as the District Council had exceeded its jurisdiction by approving a plan which was in breach of the byelaws.

Held: (1) the breaches by the District Council in this case could only be discovered by a careful examination of the relevant byelaws and even then the position was not free from doubt and, therefore, the error was not an error on the face of the record; (2) that even assuming these were definite breaches, the applicant had no locus standi as he had not shown that any legal right or interest belonging to him would be affected by the approval of the plans; (3) the application in this case was without merit and the conduct of the petitioner in the case was such that he did not deserve the discretionary remedy sought.

District Council Central, Province Wellesley v Yegappan [1966] 2 MLJ 177 Federal Court, Kuala Lumpur (Thomson LP, Ong Hock Thye FJ and Abdul Aziz J).

In this case, the appellant claimed a declaration that the approval of building plans by the Johore Town Council was contrary to the Town Boards Enactment (Johore No 118) and, therefore, illegal and inoperative. He also claimed damages against the council and also against the owner of the land on which the building was built. It was also alleged that there had been a breach of the building byelaws but the only damage alleged as a result of such breach was damage to the appellant's property from falling cement plasters, etc.

Held: (1) the Town Council is liable to the appellant if, in breach of the outright prohibition of s 145 of the Town Boards Enactment, it passed the neighbour's building plan when it was not in conformity with the approved town plan and such breach results in damage to the plaintiff; (2) the council is not liable to the plaintiff for breach of the byelaws, it not being alleged that the council has caused damage by negligence or trespass; (3) the neighbour is liable to the plaintiff for breach of byelaw 46 if, and only if, the breach results in actual damage to the plaintiff and in any event, irrespective of whether the neighbour was in such breach or not, the neighbour is liable to the plaintiff for any damage caused by negligence and/or trespass.

Tok Jwee Kee v Tay Ah Hock & Sons Ltd & Anor [1969] 1 MLJ 195 Federal Court, Johore Bahru (Azmi LP, Suffian and MacIntyre FJJ).

The appellant company was convicted under s 144 of the Municipal Ordinance (Cap 133) for erecting a building in the rural area the plans of which had not been approved by the Rural Board. It was contended that the plans were rejected because they did not conform to certain byelaws and as these byelaws were invalid no offence had been committed. It was also contended that the prosecution was not properly instituted, in that it was not authorized in the manner prescribed by s 388 of the Municipal Ordinance.

Held: (1) if the Rural Board had refused to approve plans for some reason which is bad in law, the person aggrieved has a remedy by way of mandamus or otherwise. If he proceeded to build without approval, he had committed an offence; (2) sub-ss (3) and (4) of s 12 of the Municipal Ordinance are applicable to the Rural Board and although there was no legislation which created the office of deputy chairman of the Rural Board, it was clearly the intention to invest the deputy chairman with powers described in s 12(4).

Soo Bee & Co Ltd v R [1952] MLJ 155 High Court, Singapore (Murray-Aynsley CJ).

This was an appeal against the conviction of the appellant for an offence under s 144(10)(b) of the Municipal Ordinance (SS Cap 133) for deviating from a specification approved by the municipality. On appeal, it was argued that: (1) the complaint was not made within 12 months after the commission of the offence as required by s 392 of the ordinance and, therefore, the appellants could not be liable to any fine or penalty; and (2) the appellant was not the owner of the land on which the building was erected and, therefore, he was wrongly charged and convicted.

Held, dismissing the appeal: (1) the offence in this case was a continuing offence and, therefore, s 392 of the Municipal Ordinance did not apply to it; (2) the appellant was rightly charged and convicted as he was the owner of the building and as he had failed to comply with the approved plan of the existing building.

Tan Sin v Public Prosecutor [1969] 1 MLJ 230 High Court, Malacca (Raja Azlan Shah J).

The owner of a dwelling house submitted a plan for the installation of a water-carriage system of sanitation with a private purification plant. There was included in the plan an extension of the installation to the servants' quarters which were in a separate building. Both buildings had been completed two years earlier in accordance with plans approved by the Municipal Commissioners. The sanitary installation for the dwelling house itself was completed in accordance with the new plan but the extension of sanitary installation to the servants' quarters was not proceeded with. More than a year after this work had been completed, the municipal building surveyor caused a notice to be served upon the owner requiring him to install the water carriage system in the servants' quarters. On the owner declining to comply with the notice he was prosecuted on a charge of having a building used as servants' quarters which was not according to the plan or specification approved by the Singapore Municipal Commissioners. The owner was acquitted and against the acquittal, the prosecution appealed.

Held, confirming the acquittal: a deviation within the meaning of s 140(9)(b) of Ordinance No 135 (Municipal) had occurred at the time when the installation in the first building was completed and when the accused had stated categorically his intention of not making the connection with the servants' quarters, but this was not a continuing offence but a single offence, which was complete when the intention of the accused to deviate was manifested by the overt act of ceasing work on the installation, and therefore the owner was protected by s 381 of the ordinance.

R v JB Weiss [1938] MLJ 45 High Court, Straits Settlements (Burton J).

The plaintiffs were the registered owners of a piece of land situated within the municipal boundary. They alleged that in December 1960 the then municipal engineer informed their architect that the defendants had approved their application to erect ten units of buildings shown on plan No 8720, provided that septic tanks were resited. They alleged that the plan showed the front of the buildings to be of the ordinary dwelling house type, but the defendants contended that the plan as a whole showed that the buildings to be erected were of the dwelling house type. It was common ground that the plaintiffs completed seven of the ten units shown on the plan, and that they departed from the passed plan when they constructed fronts of the ground floor of the buildings for use as shops closed by shutters and collapsible iron gates. The defendants contended that in departing from the original plan, the plaintiffs had altered entirely the nature of the user of the buildings. In November 1961, the plaintiffs' architect submitted to the defendants plan No 9322 showing departure from passed plan 8720 and in December 1961, the municipal engineer returned plan No 9322 to the architect stating that the 'application was refused as the proposed buildings were originally intended for dwelling purposes only, and conversion into shophouses necessitates provision of 20 ft service road which is not possible'. The plaintiffs then made a personal application to the President of the Municipal Council and their architect wrote to the municipal engineer in January 1962. The engineer replied stating that the defendants had already considered the plaintiffs' previous applications and that the waiver of a 20 ft service road was not possible. There followed various protracted correspondence, the engineer replying the matter was still 'under consideration'. Finally on 21 May 1962, the plaintiffs' solicitor wrote pointing out that they were suffering loss by the delay in finalizing the issue. On 27 June 1962, the municipal engineer wrote to the plaintiffs' architect informing him that the 'Councillors have approved the amendment as shown in the plan'. In this action, the plaintiffs claimed, inter alia, 'a declaration that the defendants' disapproval of amended plan No 9322 to passed plan No 8720 was wrongful and ultra vires and by maintaining their wrongful disapproval and wrongfully refusing or neglecting to approve the aforesaid amended plan despite repeated requests until 27 June 1962, had caused loss to plaintiffs, and also claimed general and special damages'. The defendants contended that they acted at all material times reasonably and in bona fide exercise of their duties and powers as Municipal Councillors and they denied liability in damages. The following issues of law were raised: (a) were the defendants acting ultra vires the ordinance in refusing to pass plan No 9322? (b) were the plaintiffs guilty of an offence under s 144 of the Municipal Ordinance (SS Cap 133) when they departed from passed plan No 8720 without the written permission of the Municipal Councillors and, therefore, could they claim damages in respect of and arising out of their illegal acts? (c) would the plaintiffs, who have failed to have recourse to the remedy specifically provided by s 144 of the ordinance, be precluded from complaining against the defendants or from claiming any damages which may arise out of their failure to pursue their proper remedy? (d) was the action barred by limitation under the Public Authorities Protection Ordinance 1948?

Held: (1) the defendants, in refusing to pass the amended plan, were acting ultra vires the ordinance; (2) there was no point in pursuing the second issue since it was clear that the plaintiffs' contention was that their cause of action arose out of the refusal to approve the amended plan; (3) the answer to the third issue is that even where the specific remedy provided for is for failure to perform or as in this case the improper exercise of a discretionary power, the obvious intention of the Legislature in this case is to exclude an action for damages; (4) time would begin to run for the purposes of the Public Authorities Protection Ordinance 1948 from the time when the act was caused, not from the time when the injury or damage ceased, or in the case of a continuing injury or damage, when the act causing the injury or damage ceased. If the refusal to approve the amended plan by the defendants was actionable, there had indeed been a continuation of the act, and therefore the plaintiffs were correct in saying that the act causing damage ceased only from 27 June 1962. It followed that this suit was not time-barred. However, in view of the answer to the third issue of law above, the fact that the suit was not time-barred could not affect the action; (5) there was no cause of action and the suit was dismissed with costs.

Mak Koon Yong & Anor v Municipal Councillors, Malacca [1967] 1 MLJ 256 High Court, Malacca (Wan Suleiman J).

This was a special case stated and argued before the High Court. The defendant had erected an annexe to his house as a recreation room but subsequently used it as a storeroom in connexion with his business. He was prosecuted under s 144(7) of the Municipal Ordinance for 'commencing building operations involving the erection of a building'. The prosecution relied on s 144(11)(e) which provides that a person shall be deemed to erect a building who 'converts to other purposes a house originally constructed as a dwelling-house'.

Held: the mere change of user, without any kind of construction work cannot be deemed to be erecting a building. Section 144(11)(e) must be read in conjunction with s 144(7).

R v George E Lee [1952] MLJ 232 High Court, Singapore (Brown J).

This appeal was against the appellant's conviction under s 144(7) of the Municipal Ordinance (Cap 133). It appeared that the houses had been built by squatters on the appellant's land.

Held: (1) there was no evidence to show that the appellant was the 'owner' of the buildings concerned, within the meaning of the definition of 'owner' in s 3 of the Municipal Ordinance and, therefore, there was no evidence that he was liable under s 144 of the ordinance; (2) before a mandatory order can be made the procedure laid out in s 55 of the Municipal Ordinance must be followed and as this was not done in this case and as there was no evidence that the appellant was the person liable under s 144 of the ordinance, the appeals must be allowed.

SAT Alsagoff v R [1950] MLJ 249 High Court, Singapore (Murray-Aynsley CJ).

A strict construction should be applied to s 169 of the Local Government Ordinance 1957. It is not enough to make the owner of the land liable, if the only evidence produced is that the person who actually erected the building on the land is not known to the local authority. The word 'to the local authority' is not used in s 169(17).

Fong Ying Yong v R [1962] MLJ 212 High Court, Singapore (Wee Chong Jin J).

The appellant was convicted of commencing building operations contrary to s 144(7) of the Municipal Ordinance and fined S$30 and further a mandatory order was issued against him to demolish the said buildings within a prescribed period. On appeal, the prosecution were only able to bring the case within s 144(7) by relying on s 144(12) of the said ordinance which states that where building operations are commenced or carried out in respect of any building they shall be deemed to have been commenced by the owner of the land who shall be liable therefor. The main contention for the appellant was that s 144(12) only applied to a case where building operations are commenced or carried out in respect of an existing building.

Held: (1) the appellant was an 'owner' within the meaning of s 3 of the Municipal Ordinance as he received the rent of the premises; (2) to exclude building operations commenced or carried out in respect of a new building from the scope of s 144(7) would make nonsense of the ordinance and the court was not disposed to give an interpretation that would lead to that result even though the proceedings were quasi-criminal in character. Observations on concurrent operation of the Municipal Ordinance and the Local Government Ordinance 1957.

Syed Ahmad Aljunied v R [1962] 3 MC 312 High Court, Singapore (Rose CJ).

This was an appeal from the magistrate's court by way of reference under the provisions of s 34 of the Courts Ordinance 1948. The decision in the appeal to the High Court was reported in [1960] MLJ 6. This appeal was brought under a certificate given by the learned appellate judge that the appeal involved a point of law as to whether the effect of s 144(12) of the Municipal Ordinance (SS Cap 133), as applied in the Malay States by virtue of the Municipal (Extended Application) Ordinance 1948 is to preclude the Municipal Councillors from proceeding under the provisions of s 144(10) against the owner of the building who commences building operations contrary to the provisions of s 144(7) by making the owner of the land solely responsible at law for the breach of the provisions of sub-s (7) aforesaid.

Held: the proceedings were entirely misconceived. There was not a scrap of evidence that the respondent did anything in the way of commencing or carrying on building operations, and it was also clear that in no sense of the word was she the owner of the property in question. Therefore, in no circumstances could she have been convicted of an offence under s 144(10). The learned magistrate was therefore right in finding her not guilty and discharging her. Decision of the High Court reversed.

Public Prosecutor v Phang Swee Lan [1960] MLJ 147 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

In this case, the appellant who was not the owner of the land commenced building operations involving the erection of a building without the prior approval of the appropriate authority in contravention of sub-s (7) and punishable under sub-s (10)(a) of s 144 of the Municipal Ordinance (SS Cap 133). He was charged in the magistrate's court and convicted on the overwhelming evidence of witnesses who saw him puting up the extension in respect of which the charge was made. This evidence was not rebutted. The main ground of appeal turned on the construction of sub-s (12) of s 144 which by a statutory fiction deems the owner to have commenced or carried out the building operation.

Held: the reading of s 144 as a whole makes it clear that the Legislature intended to saddle the owner of the land with the sole responsibility of seeing that s 144 was complied with. It is extremely unfair to saddle owners of land with this responsibility, especially when it is a common occurrence in most of the big municipal areas and some of the Town Board areas for people to put up unauthorized buildings on lands not belonging to them and to squat on them, but it is a situation which only the Legislature can remedy. A simple remedy would be to amend sub-s (12) by inserting in the appropriate place words such as 'in the absence of proof to the contrary', or to delete the subsection altogether. The courts can do no more than to construe any law enacted by the Legislature in its wisdom, and it can construe sub-s (12) in no other way than to hold that no person other than the owner of a land can be charged with and convicted of any offence connected with building operations thereon under s 144 of the ordinance.

Sivasupramaniam v Public Prosecutor [1968] 1 MLJ 80 High Court, Kuala Lumpur (Gill J).

[Annotation: Reversed by the Federal Court. See [1969] 2 MLJ 86. Case disgested at para 23.]

In this case, the appellant had been convicted of the offence of commencing building operations without previously giving notice to the City Council and obtaining their approval to the plans and specifications of the building as required by s 144 of the Municipal Ordinance (Cap 133). The appellant was fined S$500 and in addition, a mandatory order was made against him requiring him to demolish the house. On appeal it was contended that: (i) the proceedings should have been brought against the owner of the land and not against the appellant, who was the owner of the building, and (ii) the mandatory order was not validly made.

Held: s 144 of the Municipal Ordinance provides that the building operations were to have been deemed to have been commenced by the owner of the land on which the building stood and therefore the prosecution in this case should have been brought against the owner of the land; (2) as the procedure set out in s 255 of the Municipal Ordinance was not followed in this case, the mandatory order was not properly made against the appellant.

Lim Beng Teck v R [1957] MLJ 21 High Court, Singapore (Whyatt CJ).

[Annotation: This case was dissented from by the Federal Court of the Federation of Malaya in Public Prosecutor v Sivasupramaniam [1969] 2 MLJ 85.]

The question reserved for the decision of the Federal Court in this reference was: 'Whether the owner of land, upon which there is erected an unauthorized building, is the only person who can be charged with an offence under the provisions of s 144(7) of the Municipal Ordinance (Cap 133).' This reference arose out of the decision of the High Court allowing the appeal from the decision of the learned magistrate convicting the respondent of an offence punishable under s 144(10)(a) of the Municipal Ordinance ([1968] 1 MLJ 80).

Held, answering the question in the negative: s 144(12) of the Municipal Ordinance was merely intended to impose liability on an ascertainable person where the actual culprit is unknown or cannot be traced. There is nothing in this subsection which exonerates the actual offender when this is known and no insuperable obstacles prevent the prosecution from proving his guilt; it is not available as a defence to any third party, not the landowner, who in fact is guilty of carrying out unauthorized building operations.

Public Prosecutor v Sivasupramaniam [1969] 2 MLJ 86 Federal Court, Kuala Lumpur (Ong Hock Thye CJ, Suffian and Ali FJJ).

[Annotation: Lim Beng Teck v R [1957] MLJ 21 dissented from. Decision of the court below ([1968] 1 MLJ 80) reversed.]

By a notice dated 21 June 1950, purporting to be issued under ss 169 and 246(1) of the Municipal Ordinance (Cap 133), the landlord of premises was required, within one month, to abate a nuisance 'being premises in a ruinous or dangerous state'. On his failure to comply with it, he was served with a summons under s 246. To this, he pleaded guilty and an abatement order was made. This abatement order was also disregarded and on 7 March 1951, the magistrate made a closing order under s 247(6) to be carried out within three months. Copies of this closing order were served on the occupiers of the premises.

Held: (1) s 169(2) is intended to cover only urgent situations such as would arise in an earthquake, tempest, fire, flood or some unusual occurrence or the sudden discovery of a hidden defect; (2) it relates only to the carrying out of remedial work. The notice of 21 June was, therefore, invalid; (3) although s 246(1) provides alternatives as to the persons on whom service of a nuisance notice is to be made, s 246(3) provides that in case of structural defects the owner should be served and this cannot be taken to mean that the occupants must also be served. Nor is it necessary at the hearing of an application for a closing order, for the court to give the occupants an opportunity to be heard; (4) for the purposes of s 256, a closing order is a criminal cause or matter but the occupiers, not being parties to it, have no right of appeal unless such right is conferred by statute; (5) s 246 does not cover the complete demolition of a building;before a closing order is made, there must be strict proof of unfitness for human habitation caused by a nuisance and in considering the fitness or otherwise of the premises, the magistrate must bear in mind the authorities on the point and, in particular, the observations of the House of Lords in Hall v Manchester Corp 113 LT 465. Semble: if on the complaint that the owner had not complied with a nuisance notice, the magistrate makes not a closing order but an abatement order, he has no jurisdiction to make a closing order on a further complaint for the same defect.

Re Chung Lit & Chung Ah Kam [1952] MLJ 123 High Court, Penang (Spenser-Wilkinson J).

In this case, a closing order had been made against certain premises. The occupier thereupon repaired the premises and spent S$2,800 therefor. The owner brought an action, inter alia, to recover arrears of rent and the tenant counterclaimed for S$2,800. Judgment on the counterclaim was given in favour of the tenant and the owner appealed.

Held: as the tenant had failed to obtain the approval of the local authority before executing the repairs, she was not entitled to recover the amount spent by her from the owner and, therefore, the appeal must be allowed and the judgment on the counterclaim set aside.

Ang Tiong Seng v Kong Ah Loi [1966] 2 MLJ 64 High Court, Singapore (Wee Chong Jin CJ).

[Annotation: The respondent applied to the Federal Court (Federal Court Civil Application No Y 2 of 1966) for special leave to extend the time within which she had to file a notice of appeal. In her affidavit filed in support of her application, she deposed that she was unable to raise the money to prosecute the appeal and that she had made an application to the Legal Aid Bureau for legal aid. This application for legal aid was also made outside the period for filing a notice of appeal. The Federal Court (Tan Ah Tah FJ, Buttrose and Winslow JJ, 22 June 1966) dismissed the application on the ground that there were no special circumstances to justify the application for extension of time.]

Under s 248(7) of the Local Government Ordinance 1957, whether a house is unfit for human habitation does not depend on whether it is capable of repair. The relevant question to be decided is whether the nature and extent of the repairs that are necessary are reasonably justifiable having regard to the expense involved in relation to the value of the property.

Kweh Kim Hock v The City Council of Singapore [1961] MLJ 327 High Court, Singapore (Rose J).

The question to be determined in this appeal was whether the tenant had the right to be made a party in an application by the Town Council under s 76(iv) of the Town Boards Enactment (FMS Cap 137) for the house in which he occupies to be demolished.

Held: any person who has a right or whose right is affected by any question to be determined by the court has a right to be heard. In the present case the appellant had shown that his right would be affected by the application of the Town Council. He must, therefore, be heard.

Yaakob bin Salleh v Pengurus, Majlis Bandaran, Kuantan & Anor [1974] 4 MC 259 High Court, Kuantan (Syed Othman J).

A person is not bound to pull down an attap (or other such inflammable material) roof or external wall of a house built before the coming into operation of the Conservancy Act 14 of 1856, unless such house 'is contiguous to or adjoining any other building', although such roof or wall is put up or erected after the Act came into operation. A detached hut and building might be suffered, not only to stand as they were, but to be repaired, so long as such repairs did not amount virtually to a renewal of the structure until they fell to pieces. Quaere: whether putting a new roof on a hut is a renewal, not of the roof, but of the hut? Quaere: is a 'house' included in the words 'hut or other buildings' used in s 36 of the Act? Section 36 of the Act being a penal enactment must be construed strictly.

R v D'Oliveiro [1864] SLR Leic 240 Court of Judicature of Prince of Wales' Island, Singapore and Malacca (Maxwell R).

The appellant in this case was convicted of commencing building operations without giving notice and without having plans approved, contrary to s 91(i) of the Town Boards Enactment. He was fined RM50 and an order for demolition of the building was made. Counsel for the appellant contended that the order of demolition should be set aside on the ground that the record did not show on the face of it that the application for it was made by the chairman of the Town Council. The learned judge called for a report from the learned magistrate who reported that at the time he had before him a written application for demolition order signed by the chairman of the Town Council. This was forwarded to the learned judge for his perusal.

Held: (1) the application should have been intimated to the accused and a copy of it should have been included in the record of the case forwarded to the court; (2) in the circumstances of the case, the failure of the magistrate to intimate the existence of the application to the accused was an irregularity which was capable of being cured by virtue of s 422 of the Criminal Procedure Code (FMS Cap 6).

Sinnu v Public Prosecutor [1955] MLJ 134 High Court, Ipoh (Thomson J).

In this case, the applicant had been charged with the offence of erecting a semi-permanent building in contravention of the Town Board Byelaws and punishable under s 92(i) of the Town Boards Enactment (Johore No 118). On his plea of guilty, the learned magistrate fined him RM150 and ordered him to demolish the building within two months. Subsequently, the applicant was charged with the offence of not complying with the order of the magistrate and convicted and fined. The President, Town Council, then took steps to demolish the building. The applicant through his solicitors applied for revision of the demolition order on the ground that the learned magistrate before making the order had not given the applicant an opportunity to be heard.

Held: (1) an applicant for a demolition order must be made by the President or Deputy President, Town Council, and as there was nothing on the record in this case to show who made the application for demolition or, if such an application was made, that prior notice of the application had been given to the applicant, the learned magistrate had no jurisdiction to make the demolition order and it must be set aside; (2) the learned magistrate should have given the appplicant an opportunity to be heard before making the order. Conviction and sentence set aside.

Wong Kwai & Anor v President, Town Council, Johore Bahru [1970] 2 MLJ 164 High Court, Johore Bahru (Syed Othman J).

This was an application for an order of certiorari to quash the orders of a magistrate's court under s 63(4) and (5) respectively of the Local Government Integration Ordinance 1963. On the facts, the magistrate had made the orders in question on the strength of a certificate by the chief building surveyor that the building was 'in danger of collapse'. Section 63(4) of the ordinance requires the chief building surveyor to certify that 'immediate steps ought to be taken to prevent the building from falling down' as a precondition to the making of an order of the magistrate's court.

Held: the magistrate's court in this case had acted in excess of its jurisdiction in making the two orders and the orders must therefore be quashed.

Re Makhanlall & Co Ltd [1969] 1 MLJ 36 High Court, Singapore (Wee Chong Jin CJ).

[Annotation: The respondent's appeal to the Federal Court was dismissed. See [1969] 2 MLJ 118.]

On the first floor of No 85 Petaling Street, Kuala Lumpur, there were seven cubicles used as sleeping places without windows. None of the cubicles had a floor space of 120 sq ft as required by byelaw 37 of the Kuala Lumpur Sanitary Board Byelaws Part I. Notices were served on the owner of the premises requiring him to make alterations to or to demolish such cubicles as did not conform with byelaws 37 and 40. On non-compliance with the notices, the owner was charged with offences under s 17 of the Sanitary Board Enactment (Cap 137) but was acquitted by the magistrate on the ground that the byelaws were ultra vires. The Public Prosecutor appealed.

Held: the byelaws were only intended to apply to the erection of buildings and if and so far as they were intended to apply to existing buildings, they were ultra vires.

Public Prosecutor v Lye Yen Khoy [1938] FMSLR 237 High Court, Federated Malay States (Terrell Ag CJ).

In this case, the appellant had been convicted of an offence under byelaws relating to building made under the Sanitary Boards Enactment (Kedah) as amended by the Sanitary Boards (Amendment) Enactment (Kedah). On appeal it was argued that byelaw 13 was ultra vires.

Held: (1) the Sanitary Boards Enactment, as amended by the Sanitary Boards (Amendment) Enactment, gave the Sanitary Board power, inter alia, to prohibit the erection of an unsightly building, but did not empower the board to order the demolition of a building already erected no matter how unsuitable it might be; (2) byelaw 13, in so far as it permitted the Sanitary Board to order any building to be demolished by reason of its being unsuitable to the locality, was ultra vires.

Poh Boon Pin v Public Prosecutor [1948-49] MLJ Supp 47 High Court, Alor Star (Hill J).

The plaintiff in this case occupied a building as tenant of one Madam Jeenabai. The building in question was affected by s 144B of the Municipal Ordinance (Cap 133) and proceedings having been taken against Madam Jeenabai, it was demolished by the officers of the defendant council. The defendants pasted a notice of their intention on the premises more than six hours before the demolition, but this notice was addressed to Madam Jeenabai. The evidence showed that the actual owner of the building, for the purposes of the Municipal Ordinance, was the husband of Madam Jeenabai.

Held: (1) by the terms of s 144B, proceedings must be taken against the 'owner'; (2) in this case, the notice addressed to Madam Jeenabai could not be considered as a notice to the occupier and, therefore, the provisions of the proviso to s 367 were not complied with.

Tay Choon Eng v City Council [1955] MLJ 161 High Court, Singapore (Murray-Aynsley CJ).

This was an appeal against the order of certiorari made by the learned Chief Justice ([1969] 1 MLJ 36). The learned Chief Justice held that the magistrate's court deciding the matter under s 63 of the Local Government Integration Ordinance 1963 was under a duty to act judicially; that the certificate of the chief surveyor was not a certificate as required under the ordinance; and that the magistrate's court acted in excess of its jurisdiction in making the two orders. On appeal, it was argued, inter alia, that the defect in the certificate of the chief building surveyor was not fatal and that the magistrate's court was under no duty to act judicially.

Held, dismissing the appeal: (1) the orders made by the magistrate's court in this case were invalid on two grounds: first, because the magistrate had acted in excess of jurisdiction, and secondly, because in making the order ex parte without giving the person affected by the order an opportunity to be heard, he failed to comply with the requirements of natural justice; (2) [1967] 2 All ER 152 that no man is to be deprived of his property without having his having an opportunity of being heard, unless of course there are express words in the statute authorizing deprivation without notice; (3) there was a breach of the rules of natural justice on the part of magistrate's court in that it did not give a hearing to the owner of the building before making an order under s 63(4) of the ordinance. As this order empowered the chief building surveyor to demolish the building, the demolition if carried out would have deprived the owner of his property without his having been heard and this is contrary to the principle repeatedly recognized, and reaffirmed recently by the Judicial Committee in Durayappah's case [1967] 2 AC 337;as the respondent company had a direct and substantial interest in the matter and the two orders made by the magistrate's court were nullities, the respondent company clearly had locus standi to challenge the said orders.

Chief Building Surveyor v Makhanlall & Co Ltd [1969] 2 MLJ 118 Federal Court, Singapore (Tan Ah Tah FJ, Winslow and Choor Singh JJ).

The accused was charged with erecting a temporary building without the written approval of the Chairman, Town Board, Seremban, to which he pleaded guilty. Further, on the application of the health inspector, who conducted the case, the magistrate ordered the building to be demolished. Against this order, the accused now brings this appeal on the grounds that: (a) he was unaware of the application for the demolition order; (b) he was given no opportunity of being heard on the application; (c) the magistrate did not exercise his discretion properly.

Held: (1) under the provisions of s 92(i) of the Town Boards Enactment (Cap 137), the application for a demolition order must be made by the chairman or deputy chairman of the board; (2) it is contrary to fundamental justice to make such an order without giving the offender some notice of the application and an opportunity of being heard; (3) in the exercise of his discretion whether or not to make the order, the magistrate should consider the true object of the enactment and the arrangements which can be made in most cases so that they do not press unduly upon the person who is subjected or will be subject to such an order.

Lee Yew v Public Prosecutor [1953] MLJ 211 High Court, Seremban (Bellamy J).

A building belonging to the appellant had been closed by an order made under s 80(vi) and (vii) of the Sanitary Boards Enactment (Cap 137) on the ground that they were unfit for human habitation. The magistrate on a subsequent date made a demolition order in respect of the same building the evidence being to the effect that the houses were in the same condition as when the closing order was made.

Held: before the demolition order could be made, there must be evidence in the demolition proceedings of the existence of the three conditions set out in s 83 of the enactment, and the magistrate was not entitled to act on the evidence led in the previous proceedings.

Chew Leong v Chairman, Sanitary Board [1948] MLJ 31 High Court, Federated Malay States (Cussen J).

The Kota Star Town Board on 18 August 1946 appointed a sub-committee to consider the question of unauthorized buildings in the town area which recommended the demolition of all such erections by the end of December 1946. These recommendations were accepted by the board and a notice dated 30 September 1946 was served on the appellant on 6 October 1946 demanding demolition of a shed at No 5 Back Lane, Pekan Malayu, Alor Star, erected by the appellant during the Japanese occupation. This shed appeared to have been put up without any written authority from the Sanitary Board. The notice was ignored and the appellant was charged before the magistrate at Alor Star under s 13, Building Byelaws, Kedah Enactment No 106 (Sanitary Boards) for non-compliance with the requirements of this notice and was convicted and fined RM200, in default one month's rigorous imprisonment and an order was made empowering the Sanitary Board to demolish the shed within two weeks, expenses to be borne by the appellant. This decision was appealed against. The grounds of appeal briefly were as follows: (a) the notice, purporting to be a notice served in pursuance of byelaw 13 made under Sanitary Boards Enactment, is vague and uncertain in its terms and is therefore bad; (b) there was no evidence that the Sanitary Board considered the appellant's premises or decided that they were unsuitable, and the notice is therefore bad; (c) the said byelaw is ultra vires being a byelaw which the authority has no power to make under the Sanitary Boards Enactment; (d) the said byelaw has ceased to be in existence as s 4 of the Sanitary Boards Enactment which provides for what objects byelaws may be made and s 5 which empowers the making of byelaws, were repealed by ss 2 and 3 of the Sanitary Boards (Amendment) Enactment No 7 of 1358.

Held: (1) notices under the sanitary byelaws to demolish unauthorized buildings must be clear and unambiguous, but as the objection in this case was purely technical, the notice was good; (2) the byelaw was prolonged in its effect by virtue of s 11 of the Interpretation Ordinance and was therefore not ultra vires.

Wong Poh v Public Prosecutor [1949] MLJ 1 High Court, Kedah (Hill J).

Only the person actually using the premises can be convicted of using a house as a domestic building in breach of byelaw 36(ii) of the Sanitary Board Enactment of 1916. The byelaw is a penal provision and must be strictly construed.

Ganapathy Pillay v Public Prosecutor [1924] 4 FMSLR 186 High Court, Federated Malay States (Woodward CJC).

By s 58(1)(j) of the Municipal Ordinance (Cap 133), power is conferred on the Municipal Commissioners to make byelaws for the regulation of buildings and building operations. By s 143(1)(m), it is provided that such power shall include power to make byelaws for the 'construction and level of arcades or pavements for the use of foot passengers along that part of any building which abuts on a street'. The Singapore Municipal Commissioners under these powers passed a byelaw stipulating that any person 'who shall erect a building which abuts on any street or road shall provide a verandah-way or an uncovered footway of the width of at least seven feet'.

Held: (1) the byelaw was intra vires; (2) the word 'erect' in the byelaw bore the meaning assigned by s 144(1) notwithstanding that it was made under another section and the statutory definition of 'erect' laid down by s 144(10) was not confined to s 144.

Syed Abdulrahman bin Shaik Alkaff v Municipal Commissioners [1937] MLJ 111 High Court, Straits Settlements (McElwaine CJ).

[Annotation: Reversed on appeal. See Municipal Commissioners v Alkaff [1937] MLJ 183; [1937] SSLR 150.]

The appellant, the chairman of a company, was charged for erecting an unauthorized building. He pleaded guilty and was convicted. The land was held by the company on a temporary occupation licence. On appeal,

Held: the person liable for the erection of the unauthorized building under the Town Board Enactment is the owner of the holding whereon the building was erected and as there was no admission or evidence that the appellant was the owner of the land, the conviction must be quashed.

Darus bin Ahmad v Public Prosecutor [1965] 1 MLJ 200 High Court, Perlis (Suffian J).

The appellant in this case was, in 1950, prosecuted and convicted for unlawful erection of partitions in contravention of s 166(1) of the Municipal Ordinance (Cap 133) but no daily penalty for allowing them to remain after conviction was imposed. The partitions were not removed and the appellant was again charged under the present proceedings with allowing the partitions to remain after conviction 'thereby committing a continuous offence'. To this charge, the appellant pleaded guilty and was sentenced to a fine of S$500. Against this sentence, he appeal.

Held: the present proceedings were misconceived. The provision for a further penalty after conviction should, if imposed, form part of the order on the original conviction. By way of revision, the present conviction and fine were set aside.

Jagdeo v R [1952] MLJ 223 High Court, Singapore (Murray-Aynsley CJ).

The applicant, who was the owner of a private dwelling house on land adjacent to that on which an inn was being erected, applied for an order of prohibition to restrain the respondents from hearing or determining any application for a licence in respect of certain premises in the town of Ipoh under reg 11 of Part VIII of the byelaws under the Town Boards Enactment (Cap 137) or from exempting the said premises from the requirements of a licence under reg 13 thereof. It was argued on behalf of the owner that: (1) as prohibition will not be granted unless there is a material question involved, the erection of a place of public entertainment was not a material question; (2) the writ of prohibition is a writ of right and not a writ of course and as such may be lost by laches. The applicant had, between February and December 1959, stood idly by 'watching the building go up'. This constituted laches.

Held: (1) the erection of a place of public entertainment is a material question for an adjoining owner who had previously been under the impression that all commercial enterprises were forbidden in that area; (2) on evidence there had been no laches to disentitle the applicant from the remedy he seeks. Per curiam: 'If I have exercised my discretion in this matter improperly, I still consider that this is such a matter of public importance that it is a case in which the court should exercise its discretion because, if what the applicant alleges to be the law is in fact the law then the Ipoh Town Council is acting in a way which the law does not permit.'

Ng Khoon Khoon v The Ipoh Town Council & Ors [1960] MLJ 103 High Court, Ipoh (Smith J).

[Annotation: Reversed by the Court of Appeal. See Ipoh Town Council & Anor v Ng Khoon Khoon (No 2) [1960] MLJ 227.]

The appellant was convicted by the magistrate on the charge of failing to comply with a notice from the Sanitary Board issued under byelaw 195, directing him to enlarge the open area of certain houses owned by him.

Held, by a majority: ss 4 and 5 of the Sanitary Boards Enactment 1907 did not empower the board to pass byelaw No 195, and the byelaw was ultra vires and void.

Low Leong Huat v Public Prosecutor [1917] 2 FMSLR 162 High Court, Federated Malay States (Braddell CJC, Farrer-Manby and Innes JJC).

Public Prosecutor v Abdul Razak Valibhoy [1993] 3 SLR 902 High Court, Singapore (Yong Pung How CJ).

Dr Benjamin George & Ors v Majlis Perbandaran Ampang Jaya and other applications [1995] 3 MLJ 665 High Court, Shah Alam (Faiza Tamby Chik J).

The applicants in this case were the developer and several residents and purchasers of blocks two and three of the Highland Towers Condominium ('the Highland Towers'). The respondent was Majlis Perbandaran Ampang Jaya ('the MPAJ'). The MPAJ had issued notices pursuant to s 83 of the Street, Drainage and Building Act 1974 ('the Act') to the applicants, which had the effect of ordering them to either repair or demolish blocks two and three of the Highland Towers and the walls on the nearby hillslopes, within three months from the date of the notices. The directions in the notices were contrary to the recommendations proposed by the Highland Towers committee, which was set up by the respondent to study the safety of blocks two and three, immediately after the collapse of block one of the Highland Towers. The applicants had actively tried to sought a solution to the Highland Towers problem, but the respondents refused to discuss the legality of the s 83 notices. This clearly ruled out any possibility that the respondent would withdraw the s 83 notices. Therefore, the applicants applied to the High Court for certiorari via O 53 of the Rules of the High Court 1980, to quash the notices on the grounds, inter alia, that the notices were unreasonable, unconstitutional, and illegal. However, the respondent argued that it had acted within its jurisdiction, and that the s 83 notices were not amenable to certiorari, as alternative appeal procedure had been provided by ss 83(3), (6), 91 and 92 of the Act.

Held, allowing the application: (1) s 83(1) of the Act confers a broad discretion on a local authority by allowing it to issue a s 83 notice after conducting such inquiry as it thinks fit to satisfy itself that a building is in a dangerous condition. A notice may require the owner of the building to either repair the defects or demolish the building within such period of time as it may specify. However, this discretion must be exercised in good faith, for a proper purpose, and after consideration of all the relevant factors. Further, a s 83 notice can only be directed to an 'owner' of a building as defined in s 3 of the Act; (2) both s 83(3) and (6) of the Act are not appeal provisions, as neither provides recipients of the s 83 notices with an opportunity to appeal to a higher authority against the validity of the notices. Thus, there is nothing in s 83 which provides them with an alternative statutory appeal procedure in preference to certiorari. Similarly, ss 91 and 92 also do not provide a genuine appeal procedure, as a right of appeal under the provisions only arises against a mandatory order made by the magistrates' court. This would mean that the recipients of the s 83 notices could only appeal if the respondent had seeked for the mandatory order; (3) an administrative decision which has failed to give adequate weight to a relevant factor of great importance or has given excessive weight to a factor of no great importance could be set aside on the ground of unreasonableness In this case, it was impossible to comply with the s 83 notices, because it was irrational to expect the applicants to do repairs on the hillslopes which they did not own, and which would have amounted to committing a trespass. Besides, three months was a wholly inadequate time period to carry out the repair or demolition works; (4) moreover, the directions in the notices departed from the recommendations of the Highland Towers committee, without giving any reason or explanation. This amounted to a breach of legitimate expectation rendering the s 83 notices ultra vires; (5) pursuant to the Act, the s 83 notices can only be served on the owner of the relevant building. In this case, as the strata titles of the Highland Towers had not been issued, the registered proprietor of the land, ie the developer, would be the owner. However, the respondent had issued the s 83 notices to the residents of the Highland Towers who were not owners for the purposes of the Act. Even if they were the owners, the s 83 notices were still ultra vires as they were not issued to all 'owners' of these buildings, contrary to art 8 of the Federal Constitution which states that all persons are equal before the law; (6) Highland Properties Sdn Bhd, who was the owner for the purposes of the Act, had a duty to implement the views of the purchasers of blocks two and three of the Highland Towers. In turn, by virtue of the express and implied obligations imposed in the sale and purchase agreements between the developer and the purchasers, the purchasers might have to make contributions in order to comply with the s 83 notices. The s 83 notices must also be served on the financial institutions who had granted loans to the purchasers, as the purchasers had already assigned their rights under the sale and purchase agreements to them; (7) it was clear that there was a failure on the part of the respondent to comply with the express and implied limitations on their statutory discretion in this case. The s 83 notices, which were illegal, had the potential to deprive the residents of blocks two and three of the Highland Towers of their apartments should the blocks be demolished. This was also contrary to art 13 of the Federal Constitution which provides that no person shall be deprived of property save in accordance with law.

Dr Benjamin George & Ors v Majlis Perbandaran Ampang Jaya and other applications [1995] 3 MLJ 665 High Court, Shah Alam (Faiza Tamby Chik J).

In this case, the appellant had issued a notice that the premises occupied by the respondent were in a ruinous or dangerous condition or likely to fall. The respondent through his solicitors replied that the premises were in good habitable condition and offered to repair the premises. Subsequently, the landlord issued a notice to quit. The appellant then revoked the respondent's licence to carry on business in the premises as he said the premises were not safe for human occupation. The respondent applied for certiorari and the learned Judicial Commissioner quashed the appellant's order. It appeared that the learned Judicial Commissioner found that the appellant was biased or that there was real likelihood of bias. The appellant appealed.

Held: (1) the appellant in this case was justified from the reports of the engineer and the health officer in concluding that the premises were in a ruinous state, likely to fall or to catch fire and a danger to both occupant and neighbours in other words in taking action under s 76 of the Town Boards Enactment of Johore; (2) in this case, no closing order and no order of demolition had been issued under s 83 of the Local Government Act 1976 (Act 171). Had such orders been made, an order revoking the licence would obviously have been unnecessary; (3) whilst the allegation of bias, the burden of which lies on the respondent, had not been proved, the court was satisfied that the order of revocation in this case was an improper exercise of discretion and that certiorari would lie.

President, District Council, Batu Pahat v Lo Hong Tan [1983] 1 MLJ 299 Federal Court, Kuala Lumpur (Wan Suleiman FJ, Salleh Abas FJ and Yusoff Mohamed J).

The accused was charged with failure to comply with a notice requiring him as owner of certain premises to provide modern sanitary installation within three months of receipt of the said notice. He pleaded guilty and was convicted after he had made a statement which in effect amounted to announcing that he had no intention of complying with the order of the local authority. The sentence imposed required him to complete the work before a certain date and in default a fine of RM5 per day thereafter.

Held: the sentence could not stand because in effect it amounted to refraining from punishing the accused for an offence he had committed but punishing him for one which he had not committed in the event of his committing it at some time subsequent to the date of sentence. In the circumstances of the case, the court ordered the accused to appear before it to show cause why a lawful sentence should not be imposed upon him.

Taiping Town Council v Beh Cheng Siew [1955] MLJ 102 High Court, Ipoh (Thomson J).

The first and the second plaintiffs came to Sabah from the Philippines. Sometime after their arrival, they registered themselves with the Resettlement (or Settlement) Division of the Chief Minister's Department. In 1987, an exercise was conducted by the first defendant, the government of the State of Sabah, and the second defendant, Institute For Development Studies (Sabah), a private company, to establish the identities and actual status of refugees and illegal immigrants. Fearing police action or deportation, the two plaintiffs applied for an interlocutory injunction to restrain the second defendant whether by themselves or by their directors, officers, servants or agents from assisting the first defendant in the exercise.

Held: (1) the issues raised required investigation in depth and mature consideration of the law such as the Federal Constitution and some other enactments; (2) even if the second defendant was restrained in this application, there was nothing to prevent the first defendant from itself carrying on or enlisting the assistance of other bodies or persons to carry on the exercise. The impracticability and the ineffectiveness of the interlocutory relief as sought in relation to the continuance of the exercise was obvious; (3) damages would be an adequate remedy and the defendants would be in a financial position to pay them; (4) assuming that damages would not be an adequate remedy, the balance of convenience lies in favour of refusing the interlocutory relief as sought; (5) in the exercise of the court's discretion, the application was refused.

Kenidi bin Sima & Anor v The Government of the State of Sabah & Anor [1988] 1 MLJ 454 High Court, Kota Kinabalu (Chong Siew Fai J).

This was an application for an order of certiorari to remove certain resolutions of the City Council, Singapore, into the court and have them quashed. The preliminary point was raised and argued, as to whether the order of certiorari lies to the City Council in the circumstances alleged in the case.

Held: (1) certiorari will not lie to bodies other than courts stricto sensu, unless their jurisdiction is regulated by analogy to judicial rules; (2) the proceedings of the City Council were in no way analogous to the judicial process and, therefore, they are not amenable to review or avoidance by the procedure of certiorari.

Re Application by Loke Wan Tho [1956] MLJ 149 High Court, Singapore (Whyatt CJ).

An order made by a district court or a police court, under s 362(1) of Ordinance No 135 (Municipal), ascertaining an amount of compensation, damages, costs or expenses to be paid under the ordinance and determining a disputed question of liability, is not subject to an appeal to the Supreme Court. The proceedings in the district or police court are not a criminal case within the provisions of s 295 of the Criminal Procedure Code. Seaman v Burley [1896] 2 QB 344 and R v Barnardo 23 QBD 305 not applied. The provision in s 362(2) of Ordinance No 135 (Municipal), providing that an unpaid amount of compensation, etc, might be reported to a police court and recovered in the same way as a fine, does not authorize imprisonment in default of payment. The intention of s 362 is to provide means by which the money may be recovered and not to punish non-payment. Imprisonment under s 273(1)(b)(i) of the Criminal Procedure Code is not a method of recovering a fine. Ex parte Whitchurch 7 QBD 534 and Mellor v Denham 5 QBD 467 distinguished. Further, the Supreme Court has no power to deal with such an order in revision, under s 312A of the Criminal Procedure Code, the jurisdiction being of a civil nature in respect of which no right of appeal to the Supreme Court has been given. The Crown v Syme & Co 10 SSLR 49 followed.

Eusoff Hadjee Ahmad v Municipal Commissioners [1931] SSLR 81 Supreme Court, Straits Settlements (Shaw CJ, Whitley and Barrett-Lennard JJ).

Where a piece of land is detrimentally affected by the construction through it of a large drain by the Municipal Commissioners, it is no answer to a claim by the owner for compensation that the value of the land has improved as a result of their action, as betterment or enhanced value cannot be set off against damages. The delay on the part of the owner of the land in commencing proceedings against the municipality, unless the claim is one that is barred by limitation, does not deprive him of the right of action.

Shaik Sahib v Municipal Commissioners [1932] MLJ 53 District Court, Straits Settlements (Dodd DJ).

A piece of land was injuriously affected by the approval of a plan under s 52 of the Singapore Improvement Ordinance 1927. The owner made no claim for compensation within the time limited by s 105 of the Singapore Improvement Ordinance. More than three years later, the government of the Straits Settlements proceeded to acquire part of the land for the Singapore Improvement Trust for road widening purposes, acting under Ordinance No 49 (Land Acquisition). Thereupon, the owner made a claim not only for the part of the land acquired but also for injurious affection to the balance of the land. It was admitted that this injurious affection had in fact been suffered at the time of the approval of the plan.

Held: (1) the right to claim for injurious affection under s 105 of the Singapore Improvement Ordinance had gone and could not be revived. Compensation for injurious affection could only be claimed under s 25(1)(d) of Ordinance No 49 if the depreciation of the value of the property consequent upon the acquisition exceeded the amount which could have been claimed under s 105 of the Singapore Improvement Ordinance on the approval of the plan; (2) when land was acquired by the government for the Singapore Improvement Trust under s 42A of the Singapore Improvement Ordinance, the provisions of Ordinance No 49 applied to the exclusion of s 113 of the Singapore Improvement Ordinance; (3) upon a reference to the Tribunal under s 42A(3), the reference was as to the whole question of the compensation payable, not merely as to such part of an award as may have been appealed against.

JA Pereira v Singapore Improvement Trust [1936] MLJ 180 Special Jurisdiction, Straits Settlements (Gibson DJ).

The issue for determination in this appeal was as to the construction of sub-s (1) of s 259 of the Municipal Ordinance (Cap 133) which reads as follows: 'Any person who carelessly or accidentally throws down or damages any pipe, line, pillar or lamp, whether within or without the municipality, belonging to the commissioners shall pay such sum of money by way of satisfaction to the commissioners for the damage done, not exceeding five hundred dollars, as any police court thinks reasonable. Nothing in this subsection shall prevent the commissioners from taking any legal proceedings open to them at law before any court having jurisdiction for the recovery of the full amount of the damages so caused by such person.'

Held: the object of the subsection is to enable the City Council to recover a sum in compensation for the damage caused either accidentally or carelessly to its property specified in the subsection as a penalty in a summary way. The sum recoverable must be such as a magistrate's court thinks reasonable in relation to the damage actually caused, not exceeding five hundred dollars.

Deputy Public Prosecutor v Toh Han Uh [1959] MLJ 46 High Court, Singapore (Buttrose J).

[Annotation: See s 61 of the former Local Government Ordinance 1957 and s 89 of the Local Government Integration Act (Cap 166, 1985 Ed).]

The discretion of the Municipal Commissioners to grant or refuse licences under s 204(1) of Ordinance No 135 (Municipal) is absolute. A renewal of a licence is equivalent to a grant of fresh licence. If the Municipal Commissioners of Singapore refuse to renew a licence to carry on a rubber treating factory at the end of the year or other period for which it is given, the licensee is not entitled to claim compensation under s 204(5) of Ordinance No 135 (Municipal) for any loss which he may sustain thereby.

Wee Kah Kiat v Municipal Commissioners [1933] MLJ 292 High Court, Straits Settlements (Deane J).

The appellant rode through the streets of Taiping on a bicycle, on the back of which was a large receptacle containing milk. He stopped at a coffee-shop and delivered milk from the receptacle. He had no licence. On a charge of carrying on the trade of a dairy man without licence he was convicted.

Held: (1) the appellant, notwithstanding the absence of evidence of sale, was a 'dairy man' as defined in byelaw 18 of Part VI C made under the Sanitary Boards Enactment and was therefore rightly convicted; (2) under s 407 of the Criminal Procedure Code, the magistrate had power to order a confiscation of some of the implements used by the appellant in connection with the offence with which he was charged.

Babu Singh v Public Prosecutor [1940] MLJ 57 High Court, Federated Malay States (Murray-Aynsley J).

Section 211(1)(d) of the Municipal Ordinance (Cap 133) is intended to protect people from what the Legislature has considered to be a nuisance caused by the burning of earth or lime by their neighbours whether the finished product is called a brick or tile. If tiles are manufactured by a firing process by the burning of earth or lime, an offence has been committed under the section.

R v Cheong Kong Seng [1939] MLJ 49 High Court, Straits Settlements (McElwaine CJ).

The accused had been charged with using premises as a printing press for trade purposes without a licence contrary to a byelaw made under the Municipal Ordinance (SS Cap 133). At the trial, the accused produced a licence from the Minister of Interior to keep for use and use a press for the printing of documents at the premises. It was argued that the byelaw was repugnant to s 3(1) of the Printing Presses Ordinance 1948 and the Printing Presses Rules 1957, under which the licence had been issued to the accused in respect of the printing press. The learned magistrate acquitted the accused on the ground that what the minister had set out to sanction under a general law of the land no byelaw could prohibit.

Held: (1) the two licences were therefore independent of each other; (2) the licence issued by the minister was a licence in respect of the use of the printing press and the licence by the Municipal Commissioner was a licence in respect of the use of the premises for trade purposes;the byelaw was neither repugnant to the Printing Presses Ordinance 1948, nor inconsistent with the Printing Presses Rules 1957 and therefore the magistrate was wrong in acquitting the accused.

Public Prosecutor v Balakrishnan [1967] 1 MLJ 181 High Court, Kuala Lumpur (Gill J).

In this case, the appellant was convicted under s 211(1)(m) of the Municipal Ordinance (Cap 133) for storing timber without a permit. The evidence showed that the appellant carried on a joinery business at No 99 Kampong Java Road and that when the city council inspector visited his premises he found about four tons of timber on the premises. The appellant in his evidence stated that his practice was to wait until he obtained a contract before purchasing timber and then having obtained the contract, he bought the necessary timber to enable him to fulfil it. He further stated in evidence that it took about a week to turn the timber into the finished article and that the timber found on his premises on the inspector's visit was for the manufacture of furniture and window frames under contracts with the PWD and the BOD.

Held: (1) where materials are brought on to a manufacturing premises as in this case, for the purpose of enabling the manufacturer to meet his contract orders, it cannot be said that the premises are being used for storing those articles; (2) in this case, as it was shown that the timber was brought on the premises not for the purpose of being held in stock but as a necessary and transitory incident of the manufacturing processes which were being conducted on the premises, the premises were not being used for the purpose of storage.

Wee Joo Siong v R [1955] MLJ 240 High Court, Singapore (Whyatt CJ).

The respondent was charged with and acquitted of the offence of storing timber and attap without being licensed in contravention of byelaw 1(i) Part VIII of the Sanitary Board Byelaws. The Public Prosecutor appealed. At the hearing of the appeal, the respondent contended that the byelaw requiring a licence to store timber was ultra vires.

Held: the byelaw was intra vires and the respondent should have been convicted of the offence with which he was charged.

Public Prosecutor v How Kim Kok [1940] MLJ 16 High Court, Federated Malay States (Poyser CJ).

This was an election petition presented by the petitioner, Cheah Seng Teik, who was a candidate duly nominated by the Alliance Party to contest the Butterworth Town Council Elections. The petitioner and one Mrs Oon Beng Hong, a Labour Party nominee, were the sole contestants for the election in respect of the Northern Ward. After the returning officer had declared that the nominations were closed, Mrs Oon presented a written objection to the petitioner's nomination on the ground that he had not the necessary linguistic qualification in either the English or Malay language. The returning officer read out the objection and then proceeded to test the validity of it by examining the petitioner 'searchingly in speaking and reading and writing both English and Malay languages'. After these tests had been completed, the returning officer announced that it was not open to Mrs Oon to object to the petitioner's nomination on language grounds and he accordingly overruled her objection; but as result of his examination of the petitioner, he was fully satisfied that the petitioner had not that degree of language proficiency required to qualify himself for election as a candidate, and he then rejected the petitioner's nomination.

Held: (1) the ruling of the returning officer as to Mrs Oon's objection was perfectly correct; (2) under the express provisions of reg 25(3) of the Local Authorities Elections Regulations 1951, the returning officer was fully entitled to raise this objection himself. Observations on s 32 of the Election Ordinance 1954.

Re Election Petition of Cheah Seng Teik [1958] MLJ 275 High Court, Penang (Rigby J).

The petitioner was one of those who voted at the election for the Electoral Ward of Perting Timor, Bentong, held on 20 May 1961. At the said election, the respondent and one CTN were candidates, and the returning officer had returned the respondent as having been duly elected. The result of the election was duly published in the Pahang Government Gazette of 3 August 1961. On 24 August, the petitioner presented this petition praying that it might be determined that the respondent was not duly elected and that the election was void. From the affidavits, it was clear that CTN objected to the respondent's nomination paper under reg 11(3)(c) of the Local Government (Conduct of Elections) Regulations 1960 on the ground that he was disqualified under O 5(d), Town Council of Bentong Order 1960, and that the returning officer had informed the objector that he (the returning officer) was not competent to conduct the language test on the respondent, with the result that no action was taken on the objection. At the hearing of the petition, a preliminary objection was raised by counsel for the respondent that the decision of the returning officer in overruling the objection of CTN was final and conclusive and was not to be called in question in any court under reg 11(5) of the Local Government (Conduct of Elections) Regulations 1960.

Held: the effect of O 5(d) read with reg 11(1)(c) is that while the returning officer at a local government elections is competent to give an immediate and final decision on any of the grounds of disqualification specified in para 2 of the First Schedule to the Local Government Election Act 1960, any decision involving the language disqualification must be stayed pending the verdict of the State Secretary or his appointee as to the candidate's linguistic proficiency. The returning officer in this case quite rightly announced that he was not competent to conduct the language test and took no action on the objection. Refraining from making any decision on the objection is not the same thing as overruling the objection, even if the petitioner had said by mistake that his objection had been overruled. As the returning officer had not arrogated to himself competency to decide on the objection, reg 11(5) had no application in this case.

Re Perting Timor Election 1961; Kam Ah Chai v Chai Kia Poh [1962] MLJ 293 High Court, Kuala Lumpur (Ong J).

The plaintiff sued the defendants on behalf of the estate of his son who died from electrocution as a result of coming into contact with a defect in the installation erected by the defendants for the supply of electricity to the plaintiff's house. The plaintiff claimed damages under ss 7 and 8 of the Civil Law Ordinance 1956, and rested his claim on two alternative causes of action, ie (a) breach of statutory duty as provided in s 67 of the Electricity Ordinance 1949 and/or (b) negligence at common law. The defendants denied that they were in breach of statutory duty or guilty of negligence. They contended that the deceased caused and/or contributed to his death by his own negligence and failure to take care of his own safety. In the alternative, they alleged that the deceased knew or ought to have known that tampering with the electrical installation involved a risk of injury and that the deceased in acting as he did consented to running the said risk.

Held: (1) there was no evidence of any breach of s 67(1) of the Electricity Ordinance 1949 or the regulations made thereunder; (2) there was no evidence of any negligence on the part of the defendants at common law; (3) the cause of the accident, in the sense of the operative act and effective cause, was due solely to the deceased's own act in tampering with the defendants' installation.

Yusoff v Central Electricity Board [1964] MLJ 374 High Court, Malacca (Ismail Khan J).

In construing the definition of 'consumer' in s 2 of the Electricity Enactment (Cap 201), there should be no narrowing of its plain meaning by the importation of limitations. It is wide enough to include the landlord, the tenant and also the person supplied.

Ng Wui Piang v Public Prosecutor [1936] MLJ 111 High Court, Federated Malay States (Thomas CJ).

The plaintiff sued the defendants for damages arising out of the death of five buffaloes and one dog belonging to him as a result of their being electrocuted by coming into contact with a telephone wire belonging to the second defendants (the government of Malaysia). The wire had been snapped on 30 November 1962 and was lying on the ground and resting on top of the aerial electricity lines belonging to the first defendants. It remained so resting till the day of the death of the buffaloes, 3 December 1962. The claim was based on the negligence of the servants of both defendants, or alternatively, the negligence of the servants of one or other of the defendants. In the claim against the first defendants, the plaintiff also alleged breach of statutory duty under reg 16, s B(2) and/or s C(4) of the Electricity Regulations 1951. The defendants contended that they owed no duty of care to the plaintiff because the buffaloes were trespassers on the highway, that they were not being led by nose strings as required by s 2 of the Buffaloes Enactment (FMS Cap 194) and that they were not negligent.

Held: (1) the defendants owed a duty of care to the plaintiff as in the eyes of the law he would be a neighbour irrespective of whether the buffaloes were or were not trespassers on the highway. Further, the buffaloes were not straying on the highway as they were being led by a person in charge and the fact that they were not being led by nose string would be relevant only in an action against the owner for any damage caused by the buffaloes; (2) when electricity was carried overhead by wires or cables, great care must be taken in addition to any precautions required by statute, to see that it was not likely to become a source of danger. The defendants were negligent in allowing the telephone wire to remain resting on the electric wires for such a long time; (3) in the circumstances of the case, the damage was not too remote for if the danger of the telephone wire becoming live with electricity was reasonably foreseeable, then death or serious injury to any person or animal coming in contact with it could also be reasonably foreseeable; (4) on the facts of the case, the first defendants were not in breach of statutory duty as laid down in the Electricity Regulations 1951. As the plaintiff was not relying on breach of statutory duty alone, both defendants were liable in damages.

Jaswant Singh v Central Electricity Board & Anor [1967] 1 MLJ 272 High Court, Kuala Lumpur (Gill J).

This was a claim by the plaintiff for damages for wrongful dismissal. The plaintiff was employed by the City Council of George Town, Penang, as a building inspector. Complaints were made by two stall holders that the plaintiff had asked them to pay him for giving permission to carry on their business in stalls put up by them and for not taking action against them under s 144 of the Municipal Ordinance for erecting unauthorized structures. The complaints were investigated by a committee of inquiry set up by the City Council and after a hearing at which the plaintiff was given opportunity to cross-examine the witnesses and to put forward his case, the committee found that the charge of corruption preferred against him had been fully proved. The finding of the committee was accepted by the City Council and the City Council resolved that the plaintiff be removed from his office. The plaintiff was dismissed from office by a letter dated 28 February 1959 and he thereupon instituted proceedings by a writ of summons issued on 10 March 1959.

Held: the defendants, by virtue of s 16(5) of the Municipal Ordinance, were entitled to dismiss the plaintiff at pleasure and without notice and therefore the claim for damages for wrongful dismissal must be dismissed.

Lai Cheng Lim v The City Council of George Town, Penang [1960] MLJ 15 High Court, Penang (Rigby J).

The plaintiff in this case was a qualified architect. The present dispute related to his appointment as Timbalan Presiden (1) of the Majlis Perbandaran Sandakan. On 17 January 1985, the then Chief Minister of Sabah asked the plaintiff to submit his proposal of the terms and conditions for appointment as Timbalan Presiden (1) of the Majlis Perbandaran Sandakan for a period of two years. The plaintiff duly submitted his proposals which were agreed to by the Chief Minister. The Minister of Town and Country Development also approved the plaintiff's appointment. The defendant duly put the plaintiff to work, as required by the state government, to study and review the local authority's administration and financial management. By a letter dated 26 April 1985 from the Permanent Secretary to the Ministry of Town and Country Development to the President of the Majlis Perbandaran Sandakan, the state government withdrew the plaintiff's appointment to study and review the administration and financial management of the Sandakan Council with immediate effect. Following from this, on 6 May 1985, the President of the Municipal Council, Sandakan, wrote to the plaintiff enclosing a copy of the Ministry's letter dated 26 April 1985. Then by a letter dated 6 May 1985, the Permanent Secretary to the Ministry of Local Government and Housing wrote to the President of the Majlis Perbandaran Sandakan, directing him to terminate the plaintiff's appointment as Timbalan Presiden (1). The plaintiff was dismissed and given one month's salary in lieu of prior notice. The main issue in this case were: (a) in whose employment the plaintiff was; (b) whether the contract of employment was frustrated by the letter of withdrawal of the Permanent Secretary.

Held: (1) the court was of the view that the plaintiff was in the employment of the defendants, and not that of the state government. The appointment of the plaintiff by the minister was only a mode of making the appointment, but once appointed, he was the employee of the Sandakan Municipal Council since he was paid out of the council's funds; (2) the minister's withdrawal of the plaintiff's work in doing the review did not destroy the contract of employment. The withdrawal was only a step towards his dismissal and did not strike at the root of the contract he entered into with the defendants; (3) when the plaintiff's appointment was terminated, the defendants did not have regard to the contract existing between them and the plaintiff. They have therefore committed a clear breach of the contract.

Chin Chen Fui v Majlis Perbandaran Sandakan [1988] 1 MLJ 448 High Court, Sandakan (Abu Mansor J).

This was an application for the determination of certain questions relating to the office of municipal secretary, Malacca. The facts were that the first defendant was originally appointed municipal secretary and treasurer and a gazette notification setting out the appointment by the Governor-in-Council was published on 19 February 1959. On 10 August 1962, it was decided to terminate his services and on 25 October 1962, a gazette notification terminating his appointment was published. The second defendant was appointed to act as municipal secretary. On 20 September 1963, the municipality asked that the gazette notification terminating the appointment of the first defendant and appointing the second defendant to act, be cancelled and this was done. The first defendant thereupon was recalled to perform the functions of municipal secretary. The application was for the determination of the following questions: (a) whether payment of the salary and allowances of the first defendant in accordance with the agreements made between the plaintiffs and the first defendant dated 5 December 1958 and 30 March 1962 is authorized under the ordinance for the purpose of s 29(p) of the Municipal Ordinance (Cap 133); (b) whether the first defendant or the second defendant or neither of them is lawfully empowered to exercise the statutory functions of the municipal secretary in relation to the municipal fund and more particularly under ss 16(1) and 27(2) of the Municipal Ordinance; (c) if there is no lawfully appointed municipal secretary, whether the councillors are or may be personally liable for any breach of trust arising from the absence of a lawfully appointed municipal secretary and if so whether this honourable court may relieve such of the councillors as support this application from personal liability for the same under the provision of s 60 of the Trustee Ordinance 1949 and give directions for the lawful management of the municipal fund and confer any necessary powers on the councillors under s 56.

Held: (1) the payments of salary and allowances of the first defendant from 1 January 1959 to 20 September 1962 and consequential to the termination of his appointment on this latter date were lawfully made, but any payments made thereafter were unauthorized and therefore made unlawfully; (2) the second defendant is the only person who is lawfully empowered to exercise the statutory functions of municipal secretary in relation to the municipal fund and more particularly under ss 16(1) and 27(2) of the Municipal Ordinance; (3) there are no grounds for relieving the applicants from personal responsibility, if any, under s 60 of the Trustee Ordinance 1949.

Municipal Councillors of Malacca v Mohamed Ali & Anor [1965] 1 MLJ 217 High Court, Malacca (Gill J).

P sought a declaration that he was entitled to and ought to be considered as eligible for termination benefits including pension rights in accordance with the new terms and conditions of service as were applicable to employees, both past and present, of D. P had been dismissed from his job in 1972. P had filed a suit in the High Court challenging his dismissal and had appealed to the Supreme Court against the decision of the learned judge. The Supreme Court held that, in the circumstances, the notice of one month to P was not fair and equitable but that a notice of six months would be so. P was subsequently dismissed by a six-month notice. It was contended for D that in view of the earlier judgment of the Supreme Court, the claim of P for termination benefits was res judicata.

Held, dismissing P's application: (1) at the hearing of the appeal before the Supreme Court, it was agreed by both parties that the question of P's claim to pension was to be the subject of a separate suit. Any other interpretation of the earlier judgment of the Supreme Court would be inconsistent with what was so agreed between the parties in this respect. Accordingly, the question of res judicata did not arise in the instant case; (2) in the instant case, P did not come within the categories of persons who would be eligible to benefit from the new terms and conditions of service effected by Service Circular No 1 of 1975 applicable to the employees of D. The back-dating of the circular to 1970 would only cover those employees who reached retirement age on the date and would exclude those officers who were no longer in service either through voluntary resignation or dismissal; (3) in any event, P's application was time-barred as it was filed more than six years from 1975, the year the cause of action arose.

Quek Chek Yen v District Council, Kulai [1990] 1 MLJ 313 High Court, Johore Bahru (Abu Mansor J).

Section 58(1)(w)(viii) of the Municipal Ordinance was amended in 1929 by the addition of the words 'or parking' and the subsection as amended read 'garages and places kept or used for repairing, painting, storing, housing or parking motor vehicles except garages or places used in connection with private dwelling houses for housing motor vehicles kept for private use only'. The Garage Byelaws were made before this amendment and byelaw 1 reads: 'From and after the date of confirmation and publication of these byelaws no land or buildings shall be used and no buildings shall be erected for any of the purposes defined in s 57(1)(w)(viii) except under a licence granted by the Municipal Commissioners.' In 1928, it had been held in a Malacca case that a piece of waste land used for parking vehicles was not a garage and it was because of this decision that the subsection was amended in 1929. The question raised in this special case was whether a licence from the Municipal Commissioners was needed for the use of an unenclosed open space for parking motor vehicles. It was argued that as the relevant byelaw itself had not been amended, the amendment to the substantive law had no effect on the previously enacted byelaws.

Held: the word 'places' in s 58(1)(w)(viii) of the Municipal Ordinance includes all places, whether enclosed or not, that are used for the parking of motor vehicles subject to the limitation contained in that section.

R v Green Bus Co Ltd [1949] MLJ 163 High Court, Singapore (Gordon-Smith J).

In this case, the appellant was charged with using premises as a garage without a licence and also with five other offences of continuing to use the said premises as a garage without licence. All the charges were dealt with at the same trial. The appellant pleaded guilty and the learned magistrate held that the had no discretion under s 13 of the Motor Garage Byelaws and had to impose a penalty of

Ng Chwee Puan v R [1953] MLJ 86 High Court, Singapore (Brown J).

[Annotation: See now s 169 of the Criminal Procedure Code (Cap 68, 1985 Ed).]

The registered owner of a hackney carriage is liable for damage caused by the driver though not employed by him.

Tan Hoon Sun v Rochore Motor Co [1926] SSLR 132 Supreme Court, Straits Settlements (Murison CJ and Deane J).

In this case, the accused had been convicted on their pleas of guilty under s 195(4) of the Municipal Ordinance (Cap 133). The cases came before the High Court on points of law reserved for its consideration and at the hearing, an application was made that the case be dealt with by way of review under s 320 of the Criminal Procedure Code (Cap 21).

Held: (1) there is no appeal in these cases as laid down in s 296(2) of the Criminal Procedure Code, and unless there has been some obvious irregularity, illegality or miscarriage of justice, the High Court will not deal with the matter by way of review under s 320 or s 322 of the Criminal Procedure Code; (2) there is no appeal against an order for confiscation of goods being hawked made under s 195(6) of the Municipal Ordinance.

R v Jaggat Singh & Anor [1948-49] MLJ Supp 90 High Court, Singapore (Gordon-Smith Ag CJ).

C rented a van to S. S was convicted of illegal hawking. The van was confiscated. At the disposal inquiry C claimed the van. The prosecution's case was that the van was a 'stall' within the meaning of s 2 of the Environmental Public Health Act (Cap 95) and therefore forfeiture was mandatory.

Held, ordering the van to be returned to C: (1) a vehicle is not a 'stall' within the meaning of the Act unless it is designed or adapted for the selling of food or goods. The van in this case had not been so designed or altered, and accordingly it was not within the definition; (2) there was no evidence that C had colluded with S. To forfeit the van would amount to punishing an innocent party. No order of forfeiture should be made of the property of an innocent person to whom knowledge of the offence could not be attributed.

Public Prosecutor v Ming Vehicle Rental & Services Magistrate's Appeal No 370 of 1988 Magistrate's Court, Singapore (Chan Wang Ho, Magistrate).

In these cases, the two accused were each charged on two charges: (1) hawking in a prohibited area in North Bridge Road, an offence under s 195(4)(b) of the Municipal Ordinance (Cap 133); and (2) hawking without a licence, an offence under s 195(4)(a) of the ordinance. The accused pleaded guilty and on conviction were each fined S$25 'on both charges'. The magistrate also made an order for the confiscation of the case property. The accused petitioned to the Supreme Court for revision.

Held: (1) the magistrate had made an error in imposing one fine jointly for two separate offences and the fine must be altered to one of S$12.50 for each offence; (2) s 195(4) of the Municipal Ordinance authorizes the prosecution of an unlicensed hawker who acts as an itinerant hawker in a prohibited area under both clauses of the section; (3) although the charges in this case speak only of 'hawking' and do not include the word 'itinerant' which is used in s 195(4) of the Municipal Ordinance, they were sufficient to give the accused exact notice of the offences with which they were charged, as the definition of the word 'hawker' implies itinerancy; (4) when a magistrate decides to exercise the power of forfeiture under s 195(6)(c) of the Municipal Ordinance, he should first inquire what is the nature and value of the goods which he is asked to forfeit and he should make some record of these facts, so that if necessary, the Court of Appeal or the court acting in revision can judge whether, in all the circumstances, the forfeiture is reasonable; (5) the magistrate should after making the order confiscating the property, make an order for its disposal and as he had not done so in this case, an order should be made that the property forfeited be sold and the proceeds be divided equally between the municipal fund and the accused.

Kui Teong v R; Lee Keng Keh v R [1947] MLJ 30 High Court, Singapore (Worley J).

In s 195(7) of the Municipal Ordinance, the words 'for goods of any kind' are not to be construed as ejusdem generis with 'food and drinks' which immediately precede it. The ordinance contemplates that a licence must be taken out by an itinerant hawker for the sale of goods or other food and drink as well as for the sale of food and drink.

R v Tay Kiat Hiang [1938] MLJ 152 High Court, Straits Settlements (Terrell J).

The respondent had some pork over the handle of a bicycle at Pudu Road. There was some more pork hanging on a wire fence nearby. He had some scales for weighing the pork and supplied the meat to various persons who had paid him therefor. On a charge of selling pork without licence, the respondent was acquitted by the magistrate on the grounds that: (1) there was no evidence that the respondent was found hawking within the sanitary board area; and (2) the respondent was not an 'itinerant vendor' of foodstuffs and therefore did not come within the definition of 'hawker' in byelaw (1) of Part IV of the byelaws made under the Sanitary Boards Enactment. On appeal to the judge by the Public Prosecutor,

Held: (1) although the first point was not taken at the trial, the evidence showed that the first witness for the prosecution who was a health inspector was on a look-out for unlicensed hawkers in Pudu Road and that as in so doing he was acting in pursuance of an official duty there was a presumption that such duty was regularly performed within the sanitary board area; (2) if a person sells food in the street where he does not live and must have reached such place by walking or riding there with his foodstuffs for sale, he thereupon becomes 'itinerant' within the meaning of Part IV of the byelaws under the Sanitary Boards Enactment and he does not divest himself of the character of an itinerant hawker merely by reason of the fact that he stays or stands still on the same place for an appreciable time.

Public Prosecutor v Ah Fatt [1939] MLJ 230 High Court, Federated Malay States (Terrell Ag CJ).

The appellant's van was used by another person to sell food and drinks in a public place without a licence from the Commissioner of Public Health. That person was charged and convicted under s 33 of the Environmental Public Health Act (Cap 95, 1988 Ed) ('the Act'). The van, which was seized during the arrest, was forfeited at the disposal inquiry held under s 42(14) of the Act. The appellant appealed, contending that the van was not a 'stall' within the meaning of s 2 which could be seized and forfeited under s 42 of the Act. Held, dismissing the appeal: (1) on a proper construction of the definition in s 2 of the Act, two requirements must be satisfied before something can be said to be a 'stall'. First, the object in question must have been designed or adapted for the purpose of selling food or goods. Secondly, the object must have been used or intended to be used for the purposes of selling the same; (2) the words 'designed or adapted for the purpose of selling' in s 2 apply not only to 'any other means' but also to 'any table, shed, showboard, vehicle or receptacle'. The degree of alteration would however depend on the nature of the object. Such a construction is supported by s 33, and is more in line with the legislative intent which, as revealed in the maximum fine imposable ($1,000) under s 42(1), shows that it is not intended to deprive the offender of all implements regardless of proportionality. The relevant provision on confiscation must therefore not be given too wide an interpretation; (3) in the circumstances, the prosecution had proved that the van had been adapted for the purpose of selling food.

Lim Chai Ei v Public Prosecutor [1994] 2 SLR 273 High Court, Singapore (Yong Pung How CJ).

In this appeal, it was contended that the proceedings were a nullity as the summons was signed by the legal officer of the Housing and Development Board who had no authority or power to sign the summons. It was contended that as s 24A of the Housing and Development Board Ordinance 1959 gave power to the board to make standing orders with the approval of the minister, it was obligatory on the board to make such standing orders, and as the board had failed to do so, it could not authorize the legal officer to sign the summons.

Held: there were no circumstances which created a duty or required or compelled the board to make standing orders and the board was entitled to pass the resolution authorizing the legal officer to sign the summons.

Yong Nam v Housing and Development Board [1966] 2 MLJ 258 High Court, Singapore (Tan Ah Tah FJ).

There is no right of appeal, in the ordinary way, to the Supreme Court, from the sentence of the Registrar of Jinrickshaws, under the Jinrickshaw Ordinances 1900 and 1902.

R v Ang Chah [1903] 8 SSLR 10 High Court, Straits Settlements (Law J).

The appellants were charged on 4 October 1983 for using their premises for the trade of a motor car dealer without a licence from the Petaling Jaya Municipal Council thereby contravening byelaw 1(51) of Part VI of the Petaling Jaya Town Area (Amendment) Byelaws 1975. The magistrate convicted the appellants and fined them $1,000. The appellants appealed principally on the ground that the learned magistrate erred when he held that the byelaw was valid. Byelaw 1(51) Part VI of the Petaling Jaya Town Area (Amendment) Byelaws 1975 under which the appellants were charged was made pursuant to s 16(1) of the Town Boards Enactment (FMS Cap 137) which empowered the Majlis Perbandaran Petaling Jaya (MPPJ) to make such byelaws. Section 166 of the Local Government Act 1976 (Act 171) repealed the whole of the Town Boards Enacment (FMS Cap 137) with the exception of a number of sections beginning from s 67 onwards. By virtue of this, s 166 thereby repealed s 16(1) of the Town Boards Enactment (FMS Cap 137).

Held, allowing the appeal: (1) the byelaws made by the MPPJ pursuant to the Town Board Enactments (FMS Cap 137) ceased to be valid on repeal of s 16(1) of the enactment by s 166 of the Local Government Act 1976; (2) the appellants were wrongfully charged and convicted under the said byelaw.

Daihatsu (Malaysia) Sdn Bhd v Pendakwa Raya [1987] 1 MLJ 88 High Court, Kuala Lumpur (Shaik Daud J).

The petitioners applied to the Federal Court for a declaration that the City Council of George Town (Transfer of Functions) Order 1966, and s 398B of the Municipal Ordinance (Cap 133), which was in the ordinance by the Municipal (Amendment) (Penang) Enactment 1966 were void by virtue of art 75 of the Constitution of Malaysia on the ground that they were inconsistent with the Local Government Elections Act 1960 of the Federation. An application was made on behalf of the respondents for an order to dismiss the petition on the ground that the Federal Court has no jurisdiction in the matter.

Held: the state enactment and the order made thereunder were clearly inconsistent with the federal legislation and were therefore invalid and the Federal Court has jurisdiction to make an order so declaring.

City Council of George Town & Anor v Government of State of Penang & Anor [1967] 1 MLJ 169 Federal Court, Kuala Lumpur (Barakbah LP, Azmi CJ and Ong Hock Thye FJ).

Municipal byelaws should be proved by production of a copy of the byelaw purporting to be certified by the municipal officer to be a true copy of a byelaw for the time being in force and the certificate should state that the approval of the Governor-in-Council has been obtained. In the case of the older byelaws, the approval of the Rajah or the Rajah-in-Council, as the case may be, might be proved by production of the relevant notification in the government gazette.

Awang Rambli & Abang Han v Public Prosecutor [1948] SCR 13 Supreme Court, Sarawak

This was an application for a writ of certiorari to quash a decision by the Municipal Commissioners of Malacca. The applicant held a licence issued under the Malacca (Municipal) Boarding Houses Byelaws 1937, in respect of 'The London Hotel'. On 7 November 1949, the applicant was convicted of an offence under byelaw 6(iii) of the byelaws in that he allowed certain rooms in the hotel to be used for immoral purposes. The Municipal Commissioners could have cancelled the licence forthwith but instead they appointed a sub-committee to hold an inquiry. The sub-committee made an inquiry and as a result of their report the Municipal Commissioners directed the cancellation of the licence.

Held: there was nothing in the procedure adopted by the sub-committee or that of the Municipal Commissioners as a body, when they considered the report of the sub-committee, to suggest that it was in defiance of elementary standards of justice and there was therefore no ground for complaint by the applicant.

Leo Hoon Hong v Municipal Commissioners of the Town and Fort of Malacca [1950] MLJ 297 High Court, Malacca (Abbott J).

Wong Cheong Kim v Deputy Public Prosecutor [1962] MLJ 304 High Court, Singapore (Rose CJ).

Yong Mok Min v Miri Municipal Council Originating Summons No MR 3 of 1994 High Court, Miri (Tee Ah Sing J).

The accused had been charged with using premises as a printing press for trade purposes without a licence contrary to a byelaw made under the Municipal Ordinance (SS Cap 133). At the trial, the accused produced a licence from the Minister of Interior to keep for use and use a press for the printing of documents at the premises. It was argued that the byelaw was repugnant to s 3(1) of the Printing Presses Ordinance 1948 and the Printing Presses Rules 1957, under which the licence had been issued to the accused in respect of the printing press. The learned magistrate acquitted the accused on the ground that what the minister had set out to sanction under a general law of the land no byelaw could prohibit.

Held: (1) the two licences were therefore independent of each other; (2) the licence issued by the minister was a licence in respect of the use of the printing press and the licence by the Municipal Commissioner was a licence in respect of the use of the premises for trade purposes;the byelaw was neither repugnant to the Printing Presses Ordinance 1948, nor inconsistent with the Printing Presses Rules 1957 and, therefore, the magistrate was wrong in acquitting the accused.

Public Prosecutor v Balakrishnan [1967] 1 MLJ 181 High Court, Kuala Lumpur (Gill J).

The defendants, whose duty it was to uphold and repair public roads and bridges, gave work, on contract, to a third party. One of such bridges, for want of repair, gave way, whereby the plaintiff's horse was injured.

Held: it was the duty of the defendants to uphold and repair the bridge; their letting the work out did not free them from liability for the negligence of the contractor in not properly repairing the bridge.

Paterson v Municipal Commissioners [1882] 1 Ky 561 High Court, Straits Settlements (Ford J).

The defendants, who were under a statutory duty to construct, repair and maintain the streets, used a lorry of their own for the purpose of transporting sand and asphalt from the depot at Tanjong Pagar to Collyer Quay where maintenance work was in progress. The daily routine was for the driver of the lorry to pick up some wokers at Albert Street and then to proceed to Havelock Road for a general muster of workers. At Havelock Centre, he collected workers and brought them to Collyer Quay. After the final journey from Tanjong Pagar depot to Collyer Quay, the driver was ordered to take the workers to their quarters in Maude Road. On completion of that work, he was free to return to the depot at Mackenzie Road. During the journey from Maude Road to Mackenzie Road on 10 August 1936, the defendants' lorry collided with the plaintiff's motor cycle and injured the plaintiff. On 11 January 1937, the plaintiff issued a writ claiming damages for negligence arising out of the collision.

Held: the Commissioners, in transporting the labour force to their quarters in the town from the place of work or vice versa, were performing an act which they were clearly not bound to do by an ordinance and, therefore, the action was not protected by s 2(1) of the Public Authorities Protection Ordinance (Cap 14).

Wee Hong Heng v Municipal Commissioners of Singapore [1937] MLJ 207 High Court, Straits Settlements (Horne J).

An action for a mandamus (as distinguished from the prerogative writ of mandamus) comes within the word 'action' in s 2(1) of Ordinance No 132 (Public Authorities Protection) and is subject to the restrictions imposed in respect of such actions by that ordinance. Semble: applications for the prerogative writs and actions founded in contract are not 'actions prosecutions or proceedings' within the language of s 2(1) of Ordinance 132 (Public Authorities Protection) and are excluded from the scope of that ordinance.

Lim Yew Hock v Municipal Commissioners of the Town and Fort of Malacca [1936] MLJ 55 High Court, Straits Settlements (Burton Ag CJ).

[Annotation: See now the Public Authorities Protection Act 1948 (Act 198).]

A mandatory order was made under s 144(9) of the Municipal Ordinance (Cap 133) requiring the defendant to do certain work within 14 days. The defendant did not comply with the order and, subsequently, he was charged with having failed to comply with the order within 14 days and a penalty of eight days was incurred thereby. A summons was issued against the defendant on 8 June 1938 alleging eight days' default in complying with the order (though on that day there had been apparently a default of 34 days). The case was called on 22 June 1938 when the accused pleaded guilty and was fined $249.50 in respect of a default of a period longer than eight days. The summons charged an offence for which the maximum punishment was $80 and the charge was not amended to allege a longer default than eight days.

Held: the actual period of default should be set out in the charge. If it was desired to give evidence of any additional default, the charge could have been amended or a new summons could have been issued charging further default. But in default of any such amendment or new summons, the sentence was illegal and the fine must be reduced to the maximum penalty for the offence charged, ie $80.

R v Lam Chip Heng [1938] MLJ 182 High Court, Straits Settlements (McElwaine CJ).

Although a mandatory order is one which is eminently appealable and for which revision is the remedy which should normally be sought, a petition for revision will not be entertained when it is made following a delay of more than nine months as this amounts almost to an abuse of the process of the court.

Re Ng Kang Lim [1962] MLJ 39 High Court, Singapore (Rose CJ).

The appellant appealed against an order of the magistrate ('the mandatory order') ordering him to stop the use of premises occupied by the appellant's lessee ('the premises') as a place of public entertainment without a licence issued by the respondent. The order under s 91(1) of the Street, Drainage and Building Act 1974 ('the Act') was granted on the ex parte application of the respondent who was the local authority of Penang. The Act allows a local authority to compel compliance of its own notice under s 72 of the Act through the issue of a mandatory order under s 91(1). Section 91(1) provides that whenever any occupier is required to perform any work to which the provisions of the Act apply and such occupier fails to perform such work within the specified time, the local authority may make a complaint and the magistrate's court upon hearing the complaint shall make on such occupier a summary order (referred to as 'mandatory order') requiring such occupier to execute the required work. The question was whether ceasing to use the premises as a place of entertainment fell within the ambit of the second limb of s 91(1) of the Act, ie 'to perform of any other work to which the provisions of the Act apply'. The notices issued to the appellant ('the notices') prominently deposed to its issuance under s 72 of the Act. The appellant also challenged the decision of the magistrate that the question whether the appellant should be heard or not was not relevant in a case under s 91(1).

Held, allowing the appeal: (1) s 91(1) of the Act is limited in scope and is not a provision with ubiquitous application for the enforcement of all local byelaws regardless of whether it was made under the Act or other Acts or Enactment; (2) the reference to s 72 of the Act in the notices were wrongly evoked as the complaint was entirely on the unauthorised use of the premises as a place of public entertainment and not against the unlawful erection of premises in contravention of the Act. The notice was undoubtedly incoherent for being a notice under s 72. It particularised the appellant's contravention of s 70 as the unlicensed use of the premises as a place of public entertainment, a contravention alien to the scope of s 70; (3) under s 94(1) of the Act, if in any case a magistrate's court has jurisdiction to make a mandatory order, the magistrate by an ex parte order may authorise the local authority to execute immediately such work. The magistrate's order under s 94(1) is not a mandatory order. The corollary to s 94(1) and 94(2) is that a local authority even with an authorisation under s 94(1) must apply yet for a mandatory order. The authorisation under s 94(1) is only an interim order authorising the execution of urgent works by a local authority. An authorisation under s 94(1) is not a mandatory order under s 91(1) of the Act. It was not contemplated by s 91(1) nor should it be read as excluding the right of parties affected to be heard but expressly provided for in s 94(1). The ex parte mandatory order was therefore invalid as judicial proceedings were conducted without compliance with the rules of natural justice. Moreover, the terms of the mandatory order were beyond the scope and ambit of s 91(1); (4) at the material time, the respondent was fully aware that the appellant was not occupying and using the premises as a place of public entertainment. The proceedings against the appellant were as such absent of the factual basis and were wrongly instituted against the appellant.

Lim Huck Chin v Majlis Perbandaran Pulau Pinang Criminal Appeal No 41-171-93 High Court, Penang (Jeffrey Tan J).

Lim Beng Teck v R [1957] MLJ 21 High Court, Singapore (Whatt CJ).

In this case, the appellant appealed against his conviction under s 144(7) of the Municipal Ordinance (Cap 133). It appeared that the houses had been built by squatters on the appellant's land.

Held: (1) there was no evidence to show that the appellant was the 'owner' of the buildings concerned, within the meaning of the definition of 'owner' in s 3 of the Municipal Ordinance and, therefore, there was no evidence that he was liable under s 144 of the ordinance; (2) before a mandatory order can be made, the procedure laid out in s 255 of the Municipal Ordinance must be followed and as this was not done in this case and as there was no evidence that the appellant was the person liable under s 144 of the ordinance, the appeal must be allowed.

Alsagoff v R [1950] MLJ 249 High Court, Singapore (Murray-Aynsley CJ).

The term 'food' in s 194(4)(a) of the Municipal Ordinance (Cap 133) means any article used as food for human consumption. Meat and vegetables are food in that they are nutritive, therefore raw meat and raw vegetables are 'food' within the meaning of that section, but not live poultry. Poultry becomes 'food' when it has been killed.

P Saminathan & Ors v R [1958] MLJ 166 High Court, Singapore (Chua J).

The respondent was convicted of an offence punishable under s 58(3), Municipal Ordinance, to wit, for exhibiting fresh vegetables for sale on a passage of the Central Market at Kuala Lumpur and was fined RM2. On appeal by the prosecution,

Held: a fine of RM2 was far too low when it is remembered what an important part the markets play in the life of the community in large towns and how important their proper conduct is for public health and public convenience. Observations on penalties for breach of statutory provisions.

Public Prosecutor v Yap Hon Min [1960] 3 MC 286 High Court, Kuala Lumpur (Thomson CJ).

The Municipal Commissioners who have borrowed money under the Municipal Ordinance cannot compel the lender to accept, against his will, repayment of the loan before the stated day.

Nanson v Municipal Commissioners [1898] 5 SSLR 80 Court of Appeal, Straits Settlements (Cox CJ, Leach and Hyndman-Jones JJ).

The defendants were a corporation, constituted under Ordinance IX of 1887, and were in possession (how it did not clearly appear) of a town hall, the lower portion of which, for many years, had been fitted up as a theatre. It was considered advisable to replace the old scenery with new ones, and with that view the defendants, through their secretary, wrote a letter to a gentleman in England ordering such new scenery. To meet the cost of such scenery, they had passed a vote of $1,000 from the municipal funds, on their budget for the current year, which had been duly sanctioned by the Governor-in-Council in accordance with the ordinance; by a subsequent vote, they proposed to apply a further $260 being transferred from another vote for a different matter, which had also been sanctioned. The defendants were about to pay this $1,260 to meet the said costs, when the suit was begun at the relation of a rate payer, seeking to restrain the defendants from applying the said funds towards paying for cost of such new scenery.

Held, by the Court of Appeal (reversing the judgment of the court below): s 259 of the aforesaid ordinance incorporating therein s 44 of the Police Ordinance 1 of 1872, did not apply to such a suit, and it was not necessary for the plaintiff to allege or prove 'malice and want of reasonable and probable cause' on the part of the defendants in passing such votes and proceeding to make such payment. Held further, (Pellereau and Goldney JJ, Wood Ag CJ dissenting) reversing the judgment of the court below: the purchase of such scenery for the hall, for a theatre, for the benefit of the public, was not a providing for the 'convenience' of the public within s 56 of the said ordinance, and an injunction should be granted restraining the defendants from so applying the aforesaid funds towards the purchase of such new scenery. Held further, (by Goldney J): the contract for the purchase being over $200 in value, but not being under the seal of the defendant corporation, was not a contract of the corporation, and on that ground alone, an injunction should have been granted. Semble, (per Pellereau and Goldney JJ, Wood Ag CJ dissenting): the defendant corporation could not undertake to have a theatre (as a condition to their holding possession of the town hall), unless such an undertaking was within their powers under the ordinance, which it was not.

Attorney General v Municipal Commissioners [1889] 4 Ky 484 Court of Appeal, Straits Settlements (Wood Ag CJ, Pellereau and Goldney JJ).

The first respondent was charged as a public officer in his capacity as Commissioner of the Malacca Municipality with corrupt practices in the approval of plans. The second and third respondent were charged with abetment of the offences. The learned trial judge found that the first respondent, in approving the plans in his capacity as Commissioner of Malacca Municipality, had used his public office for his pecuniary or other advantage. But he held that the first respondent was not a public officer and in the absence of this first essential ingredient of the charge, he found that he had no case to answer and therefore acquitted him. He also acquitted the second and third respondents. The Public Prosecutor appealed.

Held: (1) the first respondent was a public officer within the definition of public officer in the Prevention of Corruption Act 1961 (Act 57) and for the purposes of a charge of corrupt practice under the Emergency (Essential Powers) Ordinance 1970; (2) in this case, a prima facie case had been established against the first and second respondents and the case should therefore be remitted to the High Court with a direction that the defence be called; (3) the prosecution had not adduced evidence beyond reasonable doubt of the third respondent's knowledge of the connection of the first respondent with the housing developer in this case and therefore his acquittal must be upheld.

Public Prosecutor v Datuk Tan Cheng Swee & Ors [1979] 1 MLJ 166 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah Ag CJ, Wan Suleiman, Chang Min Tat and Syed Othman FJJ).

Chin Chen Fui v Majlis Perbandaran Sandakan & Anor Suit No S 164 of 1985 High Court, Sandakan (Ian Chin J).

These proceedings arose out of the appointment by the State Authority, ie the Ruler in Council, of the Menteri Besar of Perak as President of the Ipoh Municipal Council. The plaintiff sought declarations that the offices of Menteri Besar and President of the Council could not be held by the same individual, that the appointment of the Menteri Besar as President of the Council was inoperative and null and void, and that the State Authority had exceeded its powers in making this appointment. The plaintiff was a member of Parliament for the parliamentary constituency of Ipoh as well as a member of the Perak State Legislative Assembly for the constituency of Kepayang and a rate payer within the council area.

Held, inter alia: (1) the court could see no impediment to the appointment of the State Menteri Besar as President of the municipality in this case in view of the several courses which were open for the resolution of any difficulty presented in the event of any differences or disagreement between the President of the Council and the other Councillors. The appointment in this case did not make illusory the provisions of the Act which the plaintiff relied on; (2) applying a purposive construction, the Local Government Act 1976 (Act 171) did not preclude the appointment of the Menteri Besar as President of the Council, and his appointment as such was lawful and valid.

Lim Cho Hock v Government of State of Perak & Ors [1980] 2 MLJ 148 High Court, Ipoh (Abdoolcader J).

The respondent in this case, a Town Councillor of the Butterworth Town Council, was charged under s 161 and 165 of the Penal Code for obtaining a bribe as a public servant. A preliminary point was raised on his behalf that a Town Councillor is not a public servant for the purposes of s 161 and s 165 of the Penal Code (Cap 119). The submission was accepted and an order of acquittal and discharge was accordingly made. On appeal by the Public Prosecutor,

Public Prosecutor v Phee Joo Teik [1962] MLJ 56 Court of Appeal, Kuala Lumpur (Thomson CJ, Good JA and Ong J).

The elected Municipal Commissioners under s 32 of the Municipal Ordinance IX of 1887 have power to resign, and to accept their own resignations.

Huttenbach v Municipal Commissioners [1889] 4 Ky 551 High Court, Straits Settlements (Pellereau J).

Ordinance No 44 (Bankruptcy), s 43(1)(c) gives priority to 'any sums due É from the bankrupt to the Municipal Commissioners in respect of rates or taxes for the current year'. Ordinance No 135 (Municipal), s 253(9) provides that 'all moneys É due in respect of the supply of gas or electricity ... shall be recoverable in like manner and by the like procedure as if such moneys were taxes leviable under the ordinance'.

Held, unanimously, by the Court of Appeal affirming an order of Thorne J dismissing a motion to vary a decision of the Official Assignee: charges for electricity supplied were not payable in priority to the ordinary debts of the bankrupt.

Re Tan Teng Hian [1932] MLJ 159 Court of Appeal, Straits Settlements (Murison CJ, Burton and Terrell JJ).

Claims for sums due in respect of electricity and water supplies are not entitled to any priority under s 38 of the Bankruptcy Enactment (Cap 55).

Re Lim Hee Kung [1939] MLJ 51 High Court, Federated Malay States (Cussen J).

The defendants, who were under a statutory duty to construct, repair and maintain the streets, used a lorry of their own for the purpose of transporting sand and asphalt from the depot at Tanjong Pagar to Collyer Quay where maintenance work was in progress. The daily routine was for the driver of the lorry to pick up some workers at Albert Street and then to proceed to Havelock Road for a general muster of workers. At Havelock Centre, he collected workers and brought them to Collyer Quay. After the final journey from Tanjong Pagar depot to Collyer Quay, the driver was ordered to take the workers to their quarters in Maude Road. On completion of that work, he was free to return to the depot at Mackenzie Road. During the journey from Maude Road to Mackenzie Road on 10 August 1936, the defendants' lorry collided with the plaintiff's motor cycle and injured the plaintiff. On 11 January 1937, the plaintiff issued a writ claiming damages for negligence arising out of the collision.

Held: the Commissioners, in transporting the labour force to their quarters in the town from the place of work or vice versa, were performing an act which they were clearly not bound to do by an ordinance and, therefore, the action was not protected by s 2(1) of the Public Authorities Protection Ordinance (Cap 14).

Wee Hong Heng v Municipal Commissioners of Singapore [1937] MLJ 207 High Court, Straits Settlements (Horne J).

Under s 226 of the Municipal Ordinance 1913, it is not open to a municipality to order the removal of the inhabitants of a dwelling house as a means of abating a nuisance, when such nuisance is due solely to a faulty construction of the house which is irremediable. When owing to structural defects a house dependent upon and connected with other houses of a similarly faulty character is regarded as unfit for human habitation, it is not open to the municipality to attempt to deal with it separately and individually under the provisions of the Municipal Ordinance 1913 relating to the abatement of nuisances.

H Nunes v Song Kee Chuan [1935] MLJ 132 High Court, Straits Settlements (Bucknill CJ, Ebden and Sproule JJ).

Any person who operates a gramophone for the production of music in such a manner as to constitute a nuisance commits a breach of byelaw 7A Part VII of the Sanitary Board Byelaws and is liable to be punished under s 7(ii) of the Sanitary Boards Enactment (Cap 137).

Public Prosecutor v Loke Kwi Thong [1939] MLJ 318 High Court, Federated Malay States (Poyser J).

The Municipal Commissioners served a nuisance notice upon the owner of certain attap premises alleged to have been 'of such a construction and in such a state of repair as to be injurious to health'. The notice called upon the owner within 30 days from the service thereof to abate the same 'and for that purpose to demolish the above hut and the insanitary plant and attap dwelling to the south of it'.

Held: the notice is ultra vires, inasmuch as by it the Commissioners sought to obtain the result which can only be reached after an application to a police court under s 247 of the Municipal Ordinance (Cap 133) and inasmuch as it purports to require demolition which can only be directed by a police court upon a second complaint under s 248 of the ordinance when a closing order has not been complied with.

R v Tan Ah Yeo [1937] MLJ 198 High Court, Straits Settlements (Terrell Ag CJ).

The Commissioner made a complaint against the appellant for default in complying with the requisitions of a nuisance notice issued under s 246 of the Municipal Ordinance (SS Cap 133). The appellant was summoned to answer a charge for failing to comply with such notice under s 246(6)(b) of the ordinance and on his plea of guilty was fined RM25. Subsequently, the magistrate issued a notice to the appellant to show cause why an abatement order requiring compliance with all the requisitions of the nuisance notice should not be made against him. After hearing the appellant, the learned magistrate decided that it was proper that the order be made. On appeal,

Held, dismissing the appeal: (1) in the particular circumstances of the case, the learned magistrate had not erred in law when he found that this was a fit and proper case for making an abatement order; (2) the proceedings which preceded the making of such order were in form and substance part of the proceedings for default. An abatement order made after conviction of the appellant was perfectly regular.

Kwong Ling v Commissioner of Federal Capital of Kuala Lumpur [1971] 1 MLJ 92 High Court, Kuala Lumpur (Abdul Hamid J).

This was an appeal against the conviction of the appellant for failure to comply with a notice served under s 246(6) of the Municipal Ordinance. It appeared that the notice was issued by an officer of the Municipal Commissioners on his own initiative.

Held: the notice in such cases must be given by the Municipal Commissioners or at least by their direction and cannot be given by an officer on his own initiative.

Chen Su Lan v R [1949] MLJ 290 High Court, Singapore (Murray-Aynsley CJ).

In this case, the appellant was the owner of the premises in question. The adjoining premises had been demolished for the erection of a new building and excavation and piling work was being done there. Cracks appeared in the appellant's premises and he instructed his solicitors to write to the municipal architect informing him that the premises were being damaged presumably by adjacent building operation. As a result of the letter, a building inspector visited the premises and found several cracks in the cross walls and external walls which appeared to him to have been caused by the building operation next door. The deputy municipal architect who also saw the building was satisfied that the cracks in the building were structural defects and constituted a nuisance. Consequently, a notice under s 246 of the Municipal Ordinance (SS Cap 133) was sent to the appellant as owner of the premises. On subsequent visits, it was found that a few cracks in the walls had been plastered up and that what had been done did not amount to compliance with the notice. On these facts, the appellant was convicted by the magistrate. On appeal, it was contended for the appellant that since it was clear from the prosecution's case that the person directly responsible for the nuisance was the film of builders carrying out the demolition, that fact provided a complete defence to the charge against him. It was argued that when the person responsible for creating the nuisance was known to the local authority, the local authority could not obtain a conviction against the occupier or owner of the house even though such person had been served with a notice under this section and had made default in complying with any of its requisitions within a specified time.

Held: the order which had to be complied with in this case was to do certain works on the premises in question. If the notice which was served on the appellant had been served upon the building contractor whose activities caused the defects he might not have been able to comply with the order because he had no right to enter upon the premises. In the circumstances of the case, the appeal must be dismissed. Observations on the need to modernize the law relating to nuisance.

Anthony Soosay v Public Prosecutor [1960] MLJ 18 High Court, Kuala Lumpur (Smith J).

[Annotation: See now the Local Government Act 1976 (Act 171).]

By a notice dated 21 June 1950, purporting to be issued under ss 169 and 246(1) of the Municipal Ordinance (Cap 133), the landlord of premises was required, within one month, to abate a nuisance 'being premises in a ruinous or dangerous state'. On his failure to comply with it, he was served with a summons under s 246. To this, he pleaded guilty and an abatement order was made. This abatement order was also disregarded and on 7 March 1951, the magistrate made a closing order under s 247(6) to be carried out within three months. Copies of this closing order were served on the occupiers of the premises.

Held, inter alia: (1) s 169(2) is intended to cover only urgent situations such as would arise in an earthquake, tempest, fire, flood or some unusual occurrence or the sudden discovery of a hidden defect; (2) it relates only to the carrying out of remedial work. The notice of 21 June was, therefore, invalid; (3) s 246 does not cover the complete demolition of a building;although s 246(1) provides alternatives as to the persons on whom service of a nuisance notice is to be made, s 246(3) provides that in case of structural defects the owner should be served and this cannot be taken to mean that the occupants must also be served.

Re Chung Lit & Chung Ah Kam [1952] MLJ 123 High Court, Penang (Spenser-Wilkinson J).

The accused owned stalls at Bukit Mertajam and were served with nuisance notices by the Rural Board under s 246 of the Municipal Ordinance (Cap 133). These notices not having been complied with, the magistrate made a nuisance order purporting to be under s 247 of the ordinance. The order not having been complied with, the defendants were summoned under s 247(9) of the ordinance, charged with failing to comply with nuisance order. They were each fined RM5 a day during which they continue to disobey the order. The defendants appeared to have been allowed to continue the use of their stalls in their existing condition upon payment of the sum of RM5 a day.

Held: (1) fines for continuing offences can only be imposed after proof that the offence has continued. As the defendants had not committed any breach of the law, all payments of fines must be refunded; (2) a nuisance order should not be made with the object of enforcement of building byelaws for which there is a remedy under s 144(10) of the Municipal Ordinance.

R v Lim Heng Soon & Ors [1954] MLJ 151 High Court, Penang (Spenser-Wilkinson J).

Where a person is summoned to appear before a magistrate under s 80 of the Town Boards Enactment (FMS Cap 137) and the magistrate purports to act under s 80(i)(a), 'hearing the complaint' does not mean merely reading what the chairman has stated in his complaint; it must mean hearing the evidence of the matter complained of and giving the person against whom the complaint is made an opportunity of adducing evidence in rebuttal. In other words, the magistrate should hear both sides of the case in accordance with the ordinary procedure of the courts. In this case, there was no evidence on the record to show that a notice to abate a nuisance had been served upon the applicant and that he had made default in complying with it, and therefore the provisions of s 80 had not been complied with.

Held: (1) this omission, going as it did, not merely to a matter of procedure but to the fundamental question whether justice had been seen to be done amounted to an illegality and not merely an irregularity curable under s 422 of the Criminal Procedure Code (FMS Cap 6); (2) the nuisance order should be set aside and the case should be remitted for rehearing the complaint in accordance with normal judicial procedure.

Muthukaruppan v The Town Council, Taiping [1959] MLJ 70 High Court, Ipoh (Good J).

A magistrate has no jursidiction to make a further order at a subsequent time upon a fresh summons regarding the same default under s 284 of the Local Govenment Ordinance 1957 when at the original hearing he had made an abatement order under that section. These matters being quasi-criminal in their nature, the normal rule as to strict construction of a penal statute should apply and any ambiguity should be resolved in favour of the subject.

Re Sim Khoon Seng's Application [1963] MLJ 9 High Court, Singapore (Rose CJ).

This was an appeal from the decision of the High Court (reported in [1978] 2 MLJ 156). The respondents were alleged to have made structural alterations to a building and to have used it as a restaurant without the approval or the licence of the local authority. The appellants, the local authority, brought an action for an injunction to restrain the respondents from illegally operating the eating house and damages for public nuisance. They also applied for and obtained ex parte injunctions restraining the respondents from operating the said eating house until trial of the actions. The respondents applied to strike out the actions and also to dissolve the ex parte injunctions. The High Court upheld their applications and ordered that the actions be dismissed with costs and the ex parte injunctions be dissolved. The appellants appealed.

Held, allowing the appeal: (1) s 80 of the Local Government Act 1976 (Act 171) is clear and releases a local authority from the obligation to sue on a relator action, so that it can take action in its own name to abate a public nuisance on public or private premises within its own area in protection of the public interest; (2) in this case, there were serious questions to be tried and there was a reasonable prospect of the trial court granting an injunction, but if breaches of the law were allowed to continue, it would be impossible or useless to grant it at the trial. In such circumstances, it would be right to grant an urgent relief of an interlocutory nature which worked in the interest of justice and also in the interests of the proper functioning of the appellants as a local authority.

Majlis Perbandaran Pulau Pinang v Boey Siew Than & Ors [1979] 2 MLJ 127 Federal Court, Penang (Raja Azlan Shah CJ, Chang Min Tat and Syed Othman FJJ).

The plaintiff sought a declaration that the defendants, a local authority, were not entitled to keep a rail in front of his clinic between it and the street and he asked for an order that the defendants pull down the rail and an injunction to restrain the defendants from obstructing his patients and himself and his staff from getting into the clinic. The plaintiff did not prove that he had in fact suffered any pecuniary loss or that his practice as a dentist was affected. The defendants denied that the plaintiff's enjoyment of his premises had been adversely affected or interfered with and claimed that the rail was properly constructed as part of the authorized powers given to the defendants.

Held: as (a) on the facts of the case the plaintiff's access to his clinic had not been substantially interfered with; (b) the defendants had not exceeded their authority in constructing the rail which was intended to channel pedestrians along a path of safety; and (c) as the plaintiff had not suffered any pecuniary damage, the plaintiff's claim must be dismissed.

Chong Sin Onn v Kuching Municipal Council [1967] 1 MLJ 21 High Court, Kuching (Harley Ag CJ).

This was an appeal from the decision of Ambrose J ([1967] 1 MLJ 291). The appellants, owners of certain rent-controlled premises of which the respondents were tenants, being anxious to obtain vacant possession thereof, on 17 February 1966, entered into an agreement with the respondents, inter alia, that they (the tenants) would vacate the premises on 7 March 1966 and in consideration thereof the landlords would pay S$60,000 on that date before possession and S$50,000 by five equal monthly instalments of S$10,000. The appellants unilaterally repudiated the agreement on 5 March 1966. In consequence, the respondents brought an action against the appellants on 22 March 1966 for the S$60,000 then due under the agreement of 17 February. The appellants contended that the agreement was unlawful by reason of non-compliance with the provisions of s 2(1) of the Premiums on Leases Ordinance (Cap 253, 1955 Ed) in that it was not forthwith presented for inspection to the City Council or the successor thereof. Subsection (1) of s 2 of the ordinance provides: 'It shall be unlawful for any landlord, or agent of a landlord as a condition of the grant, renewal or continuance of any lease or agreement for the tenancy of any building or part of a building, or for any person as a condition of giving up possession of any building, or part of the building to require the giving of any consideration whatsoever whether with or without reservation of rent unless (a) particulars of such consideration and of such building or part of a building are furnished in a written document; and (b) such document is forthwith presented for inspection by the landlord or his agent or any person giving up possession as aforesaid to the City Council if the said building or part of a building is situated within the limits of the city or to the Rural Board if the said building or part of a building is situated within the Rural Board area.' This issue together with another point of law raised by the defence was tried before Ambrose J who held that the respondents had not been guilty of any unlawful act under the Premiums on Leases Ordinance. The agreement of 17 February was sent by the respondents' solicitors to the Chief Assessor, Planning Department, for inspection on 21 March. The question to be decided in this appeal was whether or not the respondents by presenting the agreement to the City Assessor for inspection 33 days after it was made had presented it 'forthwith' within the meaning of s 2(1). The trial judge held that on the true construction of the subsection the duty to present a document for inspection arises only on the giving up of possession and as possession of the premises in question had not yet been given up by the respondents, the duty to present the agreement for inspection had not yet arisen. He held futhermore that it was impossible for the respondents to comply with the requirements of the subsection because there was no statutory provision for the function of receiving and inspecting the agreement under the subsection to be exercised by anyone from 1 September 1963 when the Local Government Integration Ordinance 1963 came into operation.

Held, allowing the appeal: (1) the words 'any person giving up possession' in condition (b) of the subsection are words of description to describe the person who is in possession who requires the giving of consideration as a condition of his giving up possession. The duty is by condition (b) imposed on him to forthwith present the document for inspection; (2) the word 'forthwith' means 'as soon as practicable' and 'as soon as is reasonably possible'. A presentation after an interval of 33 days on the true construction of the subsection, could not in the circumstances of this case be said to have been made as soon as is reasonably possible; (3) by virtue of s 3(2) of the Local Government Integration Ordinance 1963, any reference to the City Council in the Premiums on Leases Ordinance must be construed as a reference to the government. The respondents must, therefore, to comply with condition (b) of s 2(1) of the Premiums on Leases Ordinance, forthwith present the agreement for inspection to the government. Accordingly, it was not impossible for the respondents to comply with condition (b).

Yat Yuen Hong Co Ltd v Turquand Youngs & Co [1970] 2 MLJ 93 Federal Court, Singapore (Wee Chong Jin CJ (Singapore).

[Annotation: Reversing the decision of the High Court Turquand, Young & Co v Yat Yuen Hong Co Ltd [1967] 1 MLJ 291.]

In declaring a building insanitary under s 57 of the Singapore Improvement Ordinance 1927, the Singapore Improvement Trust is performing a judicial function. After such a declaration has been submitted to the Governor-in-Council under s 59 of the ordinance, the position of the board is that of a party to the proceedings and the board is no longer exercising anything in the nature of judicial functions. But there is still something remaining to be done by the board arising out of the declaration, namely, the duty of appearing before the Governor-in-Council; and therefore in a proper case, a writ of prohibition may issue to prohibit such further proceedings. The statutory right of the board to appear before the Governor-in-Council under s 59(5) of the ordinance must depend on the proper observance by the board of the provisions of ss 57 and 58 and if in any case it can be shown that the board has failed to observe those provisions the statutory right ceases to exist and the Supreme Court may properly prohibit any attempt to exercise it. The procedure to be followed by the board in proceeding under s 57 is clearly provided by ss 57 and 58 and if the board has failed to observe that statutory procedure, prohibition will lie in respect of such failures. The effect of s 58(5) is to make it obligatory on the board to furnish objectors with a full and complete statement of all the grounds on which the board has acted and those grounds should indicate clearly the defects arising from the construction or condition of the building which in the opinion of the board render or tend to render the building unfit for human habitation. If the board has power under s 10 to proceed against a house or land under either of two parts of the ordinance, the board is entitled to elect which procedure it will adopt. There is nothing in s 57 of the ordinance which limits its application to any particular class of house, whether it stands alone or in a block of houses (so long as the house is used or is intended or is likely to be used as a dwelling place) but in considering whether or not a house is unfit for human habitation under that section, the board may only have regard to defects arising from the construction or condition of the house itself and may not take into consideration defects arising from its proximity to or contact with any neighbouring building.

Re Application for a Writ of Prohibition and Re Singapore Improvement Ordinance (1927) [1935] MLJ 99 High Court, Straits Settlements (Huggard CJ).

The powers of the Singapore Improvement Trust under the Singapore Improvement Ordinance are strictly limited by the terms of the ordinance, and since the ordinance in many respects encroaches on the rights of the subject it must be strictly construed. In deciding whether, after considering the objections raised against a declaration made under s 57 of the ordinance condemning a house as being insanitary, the declaration should be revoked or submitted to the Governor-in-Council, the board must be regarded as exercising quasi-judicial functions. There is nothing in s 57 which requires more than a fair statement of all matters on which the board relies and which the owners must be prepared to discuss on the inquiry which must take place before the declaration is submitted to the Governor-in-Council. Where the board applied a wrong and an inadmissible test in making a declaration and deciding to submit it to the Governor-in-Council, they were acting beyond their powers and the declaration was unenforceable. That a declaration has been submitted to the Governor-in-Council is by itself no reason against the issue of a writ of prohibition. A prohibition is nonetheless a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval by some other authority. Before a prohibition can apply, there must be some act remaining to be done by the board arising out of the declaration, including any act, not merely ministerial, which may be done by them in carrying into effect any quasi-judicial order that they may have made. R v North [1927] 1 KB 491 referred to. After the Governor-in-Council has approved a declaration, the board have a discretion whether or not to exercise their powers under s 61 of the ordinance in carrying the declaration into effect and the board cannot be said to be functus officio and a writ of prohibition might issue.

Estate and Trust Agencies (1927) Ltd v The Singapore Improvement Trust [1937] MLJ 161 Privy Council Appeal from the Straits Settlements (Lord Maugham, Sir Lancelot Sanderson and Sir Sidney Rowlatt).

[Annotation: Judgement of Huggard CJ reported in [1935] MLJ 99 affirmed. Judgment of the Court of Appeal (Thomas CJ (FMS) and Terrell J, Burton Ag CJ dissenting), reported in [1935] MLJ 217 reversed.]

Section 114(1) of the Municipal Ordinance (Cap 133) empowers the Commissioner to direct the removal of any projection which overhangs, or juts into, or projects into or encroaches up or is an obstruction to the safe passage along a public street. Section 115 expressly empowers the Commissioners to allow such projections to be made in streets not less than 30 ft in width.

Alkaff v Municipal Commissioners [1937] MLJ 111 High Court, Straits Settlements (McElwaine CJ).

Money received by the administratrix of a deceased municipal officer out of the Municipal Provident Fund is subject to payment of the debts of the deceased.

Re Smith, deceased [1936] MLJ 83 High Court, Straits Settlements (Shaw CJ).

[Annotation: Appeal dismissed by the Court of Appeal (Sproule, Barrett-Lennard and Brown JJ).]

On 18 November 1993, the respondent issued a notice under the Local Government Act 1976 (Act 171) ('the Act'), assessing the land at Grant 4835 Lot 826 Mukim Batu, District Wilayah Persekutuan ('the said land') at RM2,994,000. The appellant was the registered owner of the said land and under s 142 of the Act he made objections to the value suggested. The land was categorized as agricultural land, and the valuation officer had classified the land as vacant land. In her affidavit the valuation officer exhibited photographs of the land showing no cultivation. The appellant claimed that the land was used as a rubber estate and the entire land was planted with rubber trees. The appellant's consultant filed an affidavit exhibiting photographs showing that the said land was planted with rubber trees.

Held, allowing the application: (1) the land was valued for the Valuation List which was to come into force on 1 January 1992. This meant that the valuation date must be 31 December 1991; (2) the court found that the valuation officer had not given a correct description of the said land. The photographs she produced were misleading. The court accepted the finding of the respondent's consultant as the correct description of the said land. The estate was neglected but large portions of it was were still planted with rubber trees.

Ng Chin Siu & Sons Rubber Estate Sdn Bhd v Datuk Bandar (Mayor) Kuala Lumpur Originating Summons No R2-25-67-92 High Court, Kuala Lumpur (Wan Adnan J).

The respondent company owns a rubber estate in the Federal Territory of Kuala Lumpur. The appellant issued a notice of the valuation list showing a total annual value of RM2,134,000 in respect of the lots comprising the estate. It was alleged that some of the lots were vacant, unoccupied and not built upon and therefore must be assessed on the basis of 10% of the open market value under proviso (c)(ii) to the definition of 'annual value' in the Local Government Act 1976 (Act 171), and another lot was only partially occupied and built upon and therefore subject to assessment on the basis of 10% of the open market value under proviso (c)(i) of the definition. On appeal to the High Court, the annual value was reduced to RM277,832 which is the estimated gross annual rent. The appellant appealed.

Held, dismissing the appeal: (1) and none of them is vacant because they are planted with rubber trees and one of the lots contains buildings on the portion where rubber is not planted; (2) since the respondent company has cultivated the lots and used them for rubber-tapping with exclusive possession, the lots are fully occupied. None of the lots is unoccupied or partially occupied under proviso (c) in the definition of 'annual value';the words 'partially built upon' and 'not built upon' in proviso (c) in the definition of annual value apply to land alienated subject to building category. Since all the lots comprising the estate in this case are agricultural land completely occupied and not vacant, they do not come under proviso (c) irrespective of whether they are built upon, not built upon or partially built upon and in respect of them the annual value should be the estimated gross annual rent.

Datuk Bandar, Kuala Lumpur v Bukit Jalil Estates Sdn Bhd [1988] 2 MLJ 179 Supreme Court, Kuala Lumpur (Wan Suleiman, Hashim Yeop A Sani and Wan Hamzah SCJJ).

In this case, the respondent company is the owner of a rubber estate in the Federal Territory. The appellant took the view that the whole estate is partially built upon and partly occupied, as only part of the area has been used to construct buildings, consisting of staff bungalows, labour lines and factories. The appellant therefore valued the lots on the basis of 10% of the open market value thereof and fixed the annual value at RM2,980,000. The respondent appealed to the High Court which ordered the amount to be reduced to RM353,882, which is the estimated gross annual rent. The appellant appealed.

Held, dismissing the appeal: (1) every one of the lots comprising the estate in this case is fully occupied since it is agricultural land planted with rubber and used by the respondent company for rubber-tapping with exclusive possession. As such, it is not vacant land; (2) since the whole estate is a fully occupied estate and not vacant, therefore the proviso (c)(i) in the definition of 'annual value' in s 2 of the Local Government Act 1976 (Act 171) does not apply and the rates should be fixed on the basis of the estimated annual value.

Datuk Bandar, Kuala Lumpur v Hawthornden Rubber Estate Bhd [1988] 2 MLJ 183 Supreme Court, Kuala Lumpur (Wan Suleiman, Hashim Yeop A Sani and Wan Hamzah SCJJ).

Semble: in the definition of 'annual value' in s 3 of Ordinance No 135 (Municipal) and in the second proviso thereto, the words relating to land 'capable of being developed for building purposes' mean capable of being so developed at a cost not disproportionate to the value of the lands or of any building that might be erected on it.

Kim Seng Land Co Ltd v Rural Board [1935] MLJ 153 High Court, Straits Settlements (Terrell J).

In s 3 of Ordinance No 135 (Municipal) and the definition of 'annual value' therein contained, the words 'suitable for building purposes or capable of being developed for such purposes' if taken in their fullest sense would embrace practically all land in Singapore not covered with water and so extensive a meaning cannot properly be given to them. The expression probably means land suitable for building on or development as a fair commercial speculation in this sense that if put up for sale in small lots, purchasers would be found for it who would buy with a view to either building on it at once themselves or to selling at a profit to others who would.

Frankel v Chairman, Singapore Rural Board [1935] MLJ 135 High Court, Straits Settlements (Shaw CJ).

[Annotation: See further Vermont v Municipal Commissioners (1893) 1 Ky 587, where it was decided that in estimating 'the gross annual value' under the Indian Act XXV of 1856 of an estate carried on by the owners thereof, the Commissioners are entitled to estimate its annual value as an estate in the hands of a supposititious tenant of reasonable knowledge and skill. There are also dicta as to estimating the annual value of houses in the town. For a discussion of the terms 'annual rent' and 'annual value' as used in the Indian Act XII of 1839 and the Indian Act XII of 1840, see East India Company v Scott (1882) 1 Ky 51. 'Where money has been expended on any such land' for a commentary on the phrase 'outlay actually paid and expended upon the land' which occurred in s 5 of the Indian Act IX of 1848, see Brown v Municipal Commissioners (1850) 1 Ky 75. Marginal notes the relevance of these was considered by Terrell J as judge of first instance in Batu Pahat Bank, Ltd v Official Assignee [1932] MLJ 134. Neither the Court of Appeal nor the Privy Council pronounced upon the point [1933] MLJ 237; [1933] SSLR 360. The citations mentioned cover the reports in all courts. Terrell J, after considering the basis of the English decisions said: 'Where therefore, as in the Colony, the marginal notes are treated as part of an ordinance, and are discussed and even amended in committee, there would appear to be no reason why they should not be referred to assist the interpretation of the section.' So far as appears from the report, no local cases were cited and neither was reference made to the Revised Edition of the Laws Ordinance 1925.]

This was an appeal from a decision of the High Court, affirming a decision of the Klang Town Council to levy rates on church property of which the registered proprietor is the appellant. The appellant contended that this holding was exempted from payment of rates under s 33 of the Town Boards Enactment (FMS Cap 137). The Town Council made their decision under the Town Boards Enactment. In accordance with s 44 of the enactment, the appellant appealed to the High Court, which decided in favour of the respondent. The appellant further appealed to the Federal Court.

Held, striking out the appeal: the Federal Court had no jurisdiction to entertain it as s 44(iv) of the Town Boards Enactment expressly provides that the decision of the High Court 'shall be final and conclusive', and para (d) of s 68(1) of the Courts of Judicature Act 1964 (Act 91) provides that no appeal shall be brought to the Federal Court 'where, by any written law for the time being in force, the judgment or order of the High Court is expressly declared to be final'.

The Titular Roman Catholic Bishop, Kuala Lumpur v Chairman, Klang Town Council [1972] 2 MLJ 37 Federal Court, Kuala Lumpur (Suffian, Gill and Ong Hock Sim FJJ).

The appellant, a house-owner, appealed against the decision of the respondent to amend the Assessment List under the provisions of s 64(1) of the Municipal Ordinance (SS Cap 133) by increasing the annual value of the appellant's property. The appellant contended, inter alia, that the proposed assessment was too high and the respondent had no jurisdiction to make the amendment under the said s 64(1).

Held, dismissing the appeal: (1) in view of the provisions of ss 3, 6 and 7 of the Ratings Validation Enactment 1976, however repugnant they might be because of their effect on past commissions or omissions by the local government authorities, the court had no alternative but to hold that an appeal against the assessment was precluded by the enactment; (2) s 7 of the Act was all-embracing and did not permit a challenge in the courts to any assessment imposed on any property in the State of Penang prior to the coming into force of the enactment; (3) in construing ss 6 and 7, the court was constrained to construe them to achieve the object of the said enactment which was stated to be 'to validate certain assessments and rates made or purporting to have been made under the provisions of the Municipal Ordinance (SS Cap 133)'.

Lim Hock Chuan v Lembaga Pengurus Kerajaan Tempatan [1979] 1 MLJ 253 High Court, Penang (Arulanandom J).

On a preliminary point raised as to whether the conditions laid down in s 68(3) of the Municipal Ordinance (SS Cap 133) were a necessary condition precedent to an appeal lying or being effectively constituted,

Held: the appeal is not properly before the court by reason of the non-compliance with the provisions of s 68(3) at the time the notice of appeal was lodged and that no appeal, therefore, in fact lies.

Penang Yellow Bus Co v Rural District Council [1961] MLJ 291 High Court, Penang (Rigby J).

The applicant is the owner of a piece of land upon which stands a two-storey factory ('the property'). Through a notice dated 1 November 1991, the applicant was informed by the Majlis Perbandaran Johor Bahru ('the MPJB') that the rateable value of the property had been revised upwards. The applicant's solicitors filed his objection by a letter dated 12 November 1991 arguing that the value of the property as assessed was excessive and beyond its rateable value. Following an inquiry which was attended by the applicant, MPJB in a letter of 28 February 1993 informed the applicant that it had decided to reduce the rateable value of the property. The applicant received the said letter on 4 March 1993 and subsequently his solicitors made a second objection. The MPJB however responded by saying that its decision in the letter of 28 February 1993 was final. On 14 April 1993, the applicant filed this application requesting that time be enlarged for him to appeal to the court against the decision of the MPJB since he was already out of time. The issue in this application was whether the court has the power to enlarge time to enable the applicant to appeal under s 145(2) of the Local Government Act 1976 ('the LGA'). The applicant explained that he had made a second objection to the MPJB instead of appealing because he wanted to avoid unnecessary litigation after he had obtained further evidence to show that the value of the property was lower than that assessed by the MPJB. The applicant also submitted that cl 8 of the Schedule to the Courts of Judicature Act 1964 ('the CJA') empowered the court to enlarge the time prescribed by any written law. Counsel for the respondent however argued that before the court could enlarge time, it must have express power under a relevant Act to do so. Held, dismissing the application: (1) there is no provision in the LGA which provides that a property owner could make a second objection. Section 145 clearly provides that a person who has made an objection and who is still dissatisfied with the decision of the local authority may appeal to the High Court within 14 days. Section 142 read together with s 145 of the LGA do not provide that a further objection can be made to the local authority; (2) the court's additional power under cl 8 of the Schedule to the CJA must be read subject to the proviso to s 25(2) of the CJA which provides that such power shall be exercised in accordance with any written law or rules of court relating to the same. Section 145 is a mandatory provision and cl 8 of the Schedule to the CJA cannot be resorted to by the court to give it power to enlarge time when no such express provision can be found in the LGA; (3) the court thus has no power to enlarge time for the applicant to file an originating motion to appeal against the decision of the MPJB with regard to the rate imposed upon the property. The court also has no inherent jurisdiction to extend time in this matter.

Wong Ngar v Majlis Perbandaran Johor Bahru Originating Summons No 249 of 1993 High Court, Johor Bahru (Mohd Ghazali JC).

This was an appeal against the respondent's assessment of the appellants' holdings at the annual value of RM54,000. At the hearing, the respondent raised a preliminary objection contending that since the appellants had not complied with the conditions of s 44 of the Town Boards Enactment (Cap 137), the court had no jurisdiction to entertain this appeal. It was not disputed that the appellants had not complied with s 44(i) of the said enactment by failing to pay into court the rates due when they filed their notice of appeal. Thus, the question before the court was, where jurisdiction is given to a court by statute upon certain terms or conditions, would non-compliance thereof prevent such jurisdiction from arising.

Held, dismissing the appeal: (1) s 44(i) of the Town Boards Enactment is a mandatory provision which goes to the jurisdiction of the court. It is not directory and cannot be waived; (2) the court's jurisdiction to entertain appeals from the Town Board of the city of Kuala Lumpur is given by statute upon certain terms or conditions as prescribed by s 44(i) of the Town Boards Enactment, and unless these terms or conditions are complied with, the court's jurisdiction does not arise.

Yee Seng Rubber Co Sdn Bhd v Commissioner of the Federal Capital of Kuala Lumpur [1972] 2 MLJ 21 High Court, Kuala Lumpur (Yong J).

The appellant was the owner of a holding on Mountbatten Road, Kuala Lumpur, on which is erected a bank. For the year 1962, the Commissioner of the Federal Capital, after hearing the appellant, assessed the annual value of the bank at RM108,000. On an appeal by way of motion against the assessment, questions were raised as to whether the procedure was correct and whether the burden of proof of the rate and its reasonableness was on the ratepayer or the Commissioner. On the merits of the appeal, the appellant called an experienced land valuer who was of the view that the value of RM108,000 for the appellant's holding exceeded the estimated gross annual rent at which the said holding might reasonably be expected from year to year. On a comparative basis, the appellant's expert witness chose the Hongkong & Shanghai Bank in the Old Market Square which was valued at 60 cents per sq ft per mensem, and which was in the process of being renovated. On a comparative basis, the expert said that a 5% return which amounted to RM84,500 would be reasonable but suggested a valuation of RM92,000. The respondent called his own expert who, on the comparative basis, said that banks whose valuations were less than 85 cents per sq ft and which were situated on the same road as the appellant's bank, were a more correct standard for comparison and on the contractor's basis, gave 61/2% as a fair return on the capital.

Held: (1) since no procedure had been prescribed under the Town Boards Enactment (Cap 137) and in view of O 59 r 13(1), the procedure adopted was the only procedure applicable. However, as regards the time within which such appeal should be brought, the provisions of s 44(ii) of the Town Boards Enactment must prevail over the provisions of O 59 r 13(2); (2) in an appeal under s 44 of the Town Boards Enactment as in any other appeal from a lower court or any other tribunal, the burden of proof lies on the appellant. Vermont v Municipal Commissioners (1883) 1 Ky 587 not followed; (3) the powers of the court are not confined to dealing merely with questions of law and it can vary the valuation and proceed to fix its own valuation on the evidence produced before it in a case where it is clear that the assessing authority in fixing its valuation acted on wrong principles; (4) the respondent's expert adopted the right method of approach in comparing the appellant's premises with the premises of other banks in the same street. Principles of valuation discussed.

Oversea-Chinese Banking Corp Ltd v The Commissioner of the Federal Capital of Kuala Lumpur [1963] MLJ 294 High Court, Kuala Lumpur (Gill J).

Section 33 of the Sanitary Boards Enactment (No 13 of 1916) provides for issue of a notice of demand by the board followed, if necesary, by a magistrate's warrant of attachment and sale of movable property, and s 37(i) provides that 'if the amount due cannot be recovered in the manner aforesaid, it shall be lawful for the Court of Judicial Commissioner on the application of the secretary of the board or other officer of the board duly authorized in that behalf, to issue a warrant substantially in the Form D in the Second Schedule, for the attachment and sale of the immovable property in respect of which such amount has accrued due'.

Held: (1) the issue of a warrant under s 37 of the Sanitary Boards Enactment 1916 was not a non-judicial or quasi-judicial act within the meaning of r 2 under the Courts Enactment and could not, therefore, be performed by the registrar; (2) the application was an application in the matter of an enactment, r 26(9); it should therefore be made by summons-in-chambers supported by affidavit and served on the party affected.

Ex parte Chairman of the Tampin Sanitary Board [1923] 4 FMSLR 57 High Court, Federated Malay States (Reay JC).

The sole test of ascertaining the 'annual value' is 'the estimated gross annual rent at which the holding might reasonably be expected to let from year to year'. The rating authorities must have regard to what a (not the) hypothetical tenant might reasonably be expected to pay bearing at the same time in mind the restrictions 'created or imposed either by its natural position or by the artificial conditions' of a statute, but not restrictions created or imposed by contract between a landlord and tenant. The definition 'annual value' in the Town Boards Enactment (Cap 137) has the effect of constraining the rating authority to have regard to statutory limitation on the annual rent exigible by the landlord. The ground of appeal in this case was that the Town Council in assessing the annual value of each of the premises concerned erred in disregarding the provisions of the Control of Rent Ordinance 1956 to which all the premises were subject. The question for determination was whether the Control of Rent Ordinance 1956 affected the annual value of the premises for the purposes of rating.

Held: (1) where controlled premises have been previously let as a single unit whether such premises are occupied by the owner or a tenant, and the standard rent and permitted increases are known by reference either to a previous letting or to an order of the Rent Assessment Board fixing the maximum recoverable rent, the annual value thereof must be assessed on the basis of such rent; (2) where such premises have not been previously let as a single unit but occupied either by the owner or his successor-in-title or jointly by the owner and tenant or tenants, a difficulty, which is a practical and not a legal one, arises from the absence of machinery for determining the maximum recoverable rent which is only determinable by the Rent Assessment Board under s 8(2) of the Control of Rent Ordinance 1956 upon an application by either a landlord or tenant or other person interested in respect of an existing tenancy. In such cases, the rating authority must seek to arrive at a reasonable estimate of the figure at which the rent of the premises would be controlled if they were let; (3) in the case of uncontrolled premises, where restrictive conditions as to letting are imposed by statute, the land is not struck with sterility; the occupational value to the owner (the hypothetical tenant) must be assessed having regard to the artificial conditions imposed by the state while issuing title.

Tangammah Cumarasamy v Chairman, Town Council, Taiping [1958] MLJ 290 High Court, Ipoh (Good J).

The appellants were owners of lands on which they operated two petrol pumps and service stations in Klang. By separate notices dated 19 November 1983, the municipality informed them that the annual value of those two properties had been revised to RM42,000 each from the 1976 assessment of RM20,000 and RM22,000 respectively effective from 1984. The appellants' objection under s 42 of the Local Government Act 1976 (Act 171) was turned down. The valuers for both parties agreed that the value of lands for both properties should be the same. However, they disagreed on the rate. The municipality said that it was RM40 per sq ft while the appellant said it was RM30 per sq ft. The valuers took different measurements of the buildings and facilities. As to the capitalization rate, the appellants said that the rate of return expected for investments in petrol stations should be 7% of the effective capital value to arrive at the annual value. The municipal valuer agreed but only in respect of one of the properties and not the other which he said should be 8.25%.

Held, allowing the appeal: (1) taking all factors into account, the lands should be valued at RM35 per sq ft inclusive of site improvements; (2) the court should accept the measurements given by the appellants' valuers and the construction costs bearing in mind the differences in the age of the buildings and making allowances for depreciation therefor; (3) if a rate is based on percentage basis then it should be the same in all cases but the resultant actual returns will vary according to size, facilities and location of the station. In this case, the capitalization rate for both properties should be 7% of the effective capital value.

Shell Malaysia Trading Sdn Bhd v Majlis Perbandaran Klang [1988] 3 MLJ 418 High Court, Kuala Lumpur (Harun J).

Titular Roman Catholic Bishop, Kuala Lumpur v Chairman, Klang Town Council [1972] 2 MLJ 37 High Court, Kuala Lumpur (Yong J).

In this case, the respondent had served a notice of a proposed amendment of assessment on a property described as a columbarium. The land on which the columbarium was erected was a cemetery for members of the Hokkien community in Penang. A crematorium had also been erected on the land. Both the cemetery grounds and the crematorium had been exempted from assessment. But in respect of the columbarium, the respondent turned down the objection of the appellant as did the High Court on appeal therefrom. The appellant appealed to the Federal Court.

Held, allowing the appeal: (1) the keeping of urns containing the cremated ashes of the dead as a form of honour or regard for the mortal remains of the dead was a form of religious worship; (2) the columbarium in this case was not on the facts used for pecuniary profit and the State Authority has a discretion to exempt it from rates; (3) in this case, the State Authority had refused to exercise its discretion because of the wrong interpretation given that a columbarium is not a place used exclusively for religious worship; (4) the matter should therefore be referred back to the State Authority for its decision in all the circumstances of the case whether or not to extend the discretion which is available to the columbarium.

United Hokkien Cemetries, Penang v The Board, Majlis Perbandaran, Pulau Pinang [1979] 2 MLJ 121 Federal Court, Penang (Raja Azlan Shah, Chang Min Tat and Syed Othman FJJ).

Where a holding is assessed for the first time, the giving of a notice to the owner or occupier thereof under s 39(iii), Sanitary Boards Enactment 1929, is mandatory and if such notice is not given, the inclusion of such holding in the assessment list is bad. There is nothing in s 53(i) to require an objector to state his grounds of objection. All he need do, if he disputes the propriety of the attachment, is to apply to the court for an order to stay the proceedings.

Mahendram v Chairman, Sanitary Board [1935] MLJ 290 High Court, Federated Malay States (Howes J).

On an appeal by a rate payer against a rate fixed by the Commissioners, the onus is on the Commissioners to prove both the rate and the reasonableness thereof, and it is for them to do so before the appellant is called on to prove the unreasonableness thereof.

Vermont v Municipal Commissioners [1883] 1 Ky 587 High Court, Straits Settlements (Wood J).

The applicant appealed under s 44 of the Town Boards Enactment (FMS Cap 137) against the decision of the Commissioner that a certain holding of the bank is liable to assessment based on an annual value of RM49,000 with effect from January 1961, the result being reached by the exercise of an option of fixing the annual value at one-tenth of the improved value of the holding in accordance with the second proviso to the definition of 'annual value' in s 2 of the said enactment. It was argued for the bank that the Commissioner had no power to exercise the option because the holding, at the relevant time, contained over its entire area a building in the course of construction, and that it therefore cannot be correctly described as 'vacant or unoccupied or partially built upon' and as such the Commissioner had no ground for exercising the option as he purported to have done. It was argued for the Commissioner that rates are imposed on all holdings by s 25 of the said enactment and that a holding as such is rateable, and not by reason of a building being situate thereon.

Held: as the holding was not vacant or unoccupied or only partially built upon, it was not open to the Commissioner to exercise the option as he had purported to do. The alternative assessment was also not available because the holding was bringing in no rent. Per curiam: 'It is quite true that in this country rates are levied on owners and not on occupiers as in England. English decisions on rateable occupation are therefore not of much assistance so that the question now before the court must be decided without the benefit of guidance of any precedent.'

Lee Wah Bank Ltd v Commissioner of Federal Capital of Kuala Lumpur [1962] MLJ 23 High Court, Kuala Lumpur (Ong J).

This was an appeal against assessment in respect of a rubber estate. The respondent had assessed the land at one-tenth of the improved value thereof on the basis that the land was vacant and unoccupied.

Held: (1) occupation is a question of fact depending on the circumstances of each case. In the circumstances of this case although the agent of the appellant was looking after and managing the estate, it was essentially for purposes of ensuring that tapping was done properly and to arrange the sale of rubber. There was no building on the land and in the circumstances it was evident that the land was not in actual fact occupied; (2) as the land had no buildings on it, it was a vacant holding within the meaning of the Town Boards Enactment (Cap 137); (3) having found that the land was vacant and unoccupied, the respondent had the right to exercise the option to assess either on the estimated gross annual rent at which the holding might reasonably be expected to be let from year to year or one-tenth of the improved value thereof.

Julia Eu Kee Poh v Chairman of Town Board of Petaling Jaya [1970] 2 MLJ 238 High Court, Kuala Lumpur (Abdul Hamid J).

This was an appeal against the decision of the Pesuroh Jaya, Ibu Kota, Kuala Lumpur (Commissioner of Federal Capital) confirming the annual value of land belonging to them. The land was vacant land and an application to build 56 flats on it had been refused on the ground that part of the land might be required for a proposed road. The land was assessed on the basis of 10% of the 'improved value', that is the capital sum which the land might be expected to realize if offered for sale on such reasonable terms and conditions as a bona fide seller would require. The value of the part of the land affected by the proposed road was calculated on a deferred or reduced value. It was argued for the appellent that the English concept of 'beneficial ownership' should be applied.

Held, dismissing the appeal: (1) there is a fundamental distinction between the English rating law and local rating law, in that under the local law, the rate is borne by the owner, is a first charge on the rateable holding, and is exigible even if there is no occupier and, therefore, caution must be exercised in depending on the English precedents on rating law for guidance; (2) in this case, the respondent was justified in opting to assess the annual value of the land and one-tenth of the improved value; (3) in the construction of a statute, the duty of the court is limited to interpreting the words used by the Legislature and it has no power to fill in any gaps disclosed.

Home Luck Investments Sdn Bhd v Commissioner of Federal Capital of Kuala Lumpur [1969] 1 MLJ 248 High Court, Kuala Lumpur (Raja Azlan Shah J).

The improved value under s 28 of the Town Boards Enactment (Johore No 118) must be worked out not on the sale price of a holding as used for a specific purpose that is to say, in this case, a petrol station, but what it would fetch in its improved state in the general market. The value of the holding must relate to the value of the land as permanently altered by the erection of buildings or structures connected to buildings. In this case, as the tanks in question were not buildings or structures connected with buildings, they were wrongly included in the improved value of the holding under s 28 of the said enactment.

Shell Co of the Federation of Malaya v President, Town Council Bandar Penggaram, Batu Pahat [1962] MLJ 277 High Court, Muar (Adams J).

On 16 July 1954, the appellants bought a piece of vacant land for RM95,039. At the time of the purchase, the annual value was rated for purposes of assessment at RM1,200 which worked out at a valuation of RM1.50 per sq ft. On 21 February 1955, the respondents rated the annual value of the vacant land at RM4,752 being 5% of the purchase price. The appellants gave notice of objection, and on it being rejected, appealed to the High Court. There was evidence to show that the respondents had, in July 1954, purchased the frontage of that same piece of land for road-widening purposes, at the rate of RM4 per sq ft.

Held: (1) the burden was on the respondents to prove that increase in the assessment was justified and reasonable; (2) in the absence of any other evidence to the contrary, the value of the vacant land must be fixed at RM4 per sq ft, and the respondents must amend their assessment accordingly; (3) such amendment can validly be of retrospective effect.

Cathay Finance Co Ltd v Municipal Councillors of George Town, Penang [1957] 3 MC 105 High Court, Penang (Rigby J).

In this case, the respondent had raised the annual value of the premises for purposes of assessment to RM17,400. The appellant objected and appealed against the assessment. The appeal was based on the ground that the premises were let for only RM4,200 per annum.

Held: (1) there was evidence that the premises could be let for more than RM4,200 per annum and the failure of the respondent to assess the premises at that amount was not contrary to the provisions of the Town Boards Enactment (FMS Cap 137); (2) the respondent was justified in assessing the premises at RM17,400 instead of RM4,200.

Eileen Kuok v Pengerusi, Perbadanan Kemajuan Bukit Fraser, Pahang [1980] 1 MLJ 181 High Court, Raub (Salleh Abas FJ).

In this case, the respondents were owners of No 2 St Thomas Walk, having purchased it in September 1957 and the annual value on which the property had been assessed at that time was S$2,880. In January 1958, pursuant to the provisions of s 64 of the Municipal Ordinance (Cap 133), the appellant served a notice on the respondents to amend the said annual value to S$13,000 for the year 1958, and in May 1958 they were notified that the assessment committee of the appellant, at its meeting held on 22 April 1958, had fixed the annual value of the property at that amount with effect from 1 January 1958. In the court below, the respondents sought for a declaration that the order made by the assessment committee fixing the annual value of the property under the provisions of the Municipal Ordinance was null and void and of no effect in law on the grounds that the provisions relating to rates under the Municipal Ordinance were impliedly repealed by the corresponding provisions in the Local Government Ordinance 1957 when by 21 December 1957, all the provisions of the re-enacting ordinance had been brought into operation, with the exception of s 320(1) which provided for the repeal of the Municipal Ordinance. The learned trial judge held that the notice under s 64 of the Municipal Ordinance was bad in law and the order of the assessment committee was null and void and of no effect in law. He also held that by implication the provisions of the Municipal Ordinance were repealed whenever the corresponding provisions of the Local Government Ordinance were brought into operation. On appeal,

Held: (1) in the circumstances of the transitional period in relation to the formation of the new district council areas there appeared to be undoubted practical necessity for the two ordinances to be in concurrent operation, despite some inconvenience which would be caused; (2) the Legislature, by its deliberate act in not bringing into operation the section repealing the whole of the Municipal Ordinance, had indicated its intention to keep the ordinance alive; (3) in this case, there was no room for the application of the doctrine of implied repeal.

City Council of Singapore v Tong Teck Seng & Ors [1959] MLJ 219 Court of Appeal, Singapore (Rose CJ, Buttrose and Ambrose JJ).

A two-storey building whose annual value had been RM900 and the annual rate RM187 was destroyed by fire in 1966. It was rebuilt in 1970 at the cost of RM20,000; the party walls were reinforced and additional party walls were put up and floor areas were increased. It was not in dispute that the premises had been let at a rental of RM280 per month for a period of three years with an option to renew on the same rental for a further two years. The Majlis Bandaran had assessed the annual value of the property at RM6,600 and the annual rate RM1,386. On appeal,

Held: (1) considering the cost of rebuilding, it was difficult to accept that in estimating the gross annual rent it would be said that the appellant should be able to recover this expenditure in about three years (RM6,600 ´ 3). By any standard, legal or economic, this figure was too high; (2) in the circumstances of the case, as the real rent was RM280 per month the proper annual value of the premises was RM3,360.

Tiong Hin Realty Sdn Bhd v Chairman, Majlis Bandaran, Kuantan [1975] 1 MLJ 212 High Court, Kuantan (Syed Othman J).

In this case, the appellants were the tenant of the second respondent of a cinema hall in Kota Bharu, Kelantan called Rex Theatre. The premises were let under two leases. The first lease commenced on 1 September 1962 and expired on 31 August 1973 at a rental of RM2,000 per month. The second lease was backdated to begin on 1 September 1973 for a further period of five years at a rental charge of RM6,000 per month. After the second lease was signed, the appellants became aware that the premises were subject to rent legislation and they therefore demanded refund of the excess. The second respondent applied to the first respondents for an increase of the valuation of the annual value of the premises. The first respondents took steps to increase the valuation but no notice was sent to the occupier of the premises, the appellants. The appellants brought an action to recover the excess of rents and another action for a declaration that the revaluation exercise was null and void. The actions were tried together and the learned judge dismissed the actions. The appellants appealed.

Held: (1) the first respondents were under an obligation to issue the requisite notice to the occupier of the premises and as they did not do so the revaluation must so far as the tenant is concerned be regarded as null and void; (2) the RM2,000 rent is permitted under the proviso to s 27 of the Control of Rent Act 1966 (Act 363) and is therefore lawful, it being permitted by the repealed Kelantan Enactment No 17/1964; (3) it is not for the court to determine the fair rent as regards the RM5,000 rent under the second lease agreement; (4) there is therefore no question of excess of rent having arisen and as such, no recovery thereof could be claimed.

Shaw Brothers (KL) Sdn Bhd v Lembaga Bandaran, Kota Bharu & Anor [1984] 1 MLJ 276 Federal Court, Kuala Lumpur (Salleh Abas CJ, Abdul Hamid and Syed Agil Barakbah FJJ).

The appellant had bought a property, paying the price for it on 6 August 1986. The transfer of the property was effected at the land office on 28 October 1986. The respondent local authority sent a notice dated 15 December 1986 to the seller of the property requiring him to pay the arrears of rates from 1 July 1985 to 31 December 1986. The notice was received by the appellant at his house. He wrote to the respondent saying that he had bought the property and would try to locate the seller for him to pay the arrears. The appellant also said that, as the new owner of the property, he would be liable to pay rates only from the time that he became the owner of the property. The respondent proceeded in the magistrate's court with attachment of the property in order to recover the arrears. The appellant applied for the release of the attachment but the magistrate dismissed the application. The appellant appealed. It was contended for the appellant that the previous owner was liable for the payment of the rates up to the date of the sale of the property. For the respondent, it was contended that under the provisions of s 160(5) of the Local Government Act 1976 (Act 171) the appellant was liable to pay all arrears. It was provided in s 146 of the Act that the rates shall be paid by the persons who are the 'owners of the holdings for the time being'.

Held, allowing the appeal: (1) it is obvious that the person who has to pay the rates is the owner of the property. Under s 133 of the Act, the annual rates are to be paid half yearly in advance by the current owner in January and July of each year. Therefore the words 'owners of the holdings for the time being' in s 146 should be read to mean the owners for the period for which the rates are imposed; (2) the effect of s 160(4) of the Act is that every seller of a holding shall continue to be liable for the payment of all rates payable in respect of that holding which becomes payable (by him) as owner of the holding before the notice of such transfer has been given to the local authority, or until the sale or transfer has been recorded in the books of the municipality; (3) sub-s (5) of s 160 of the Act should be read in consonance with sub-s (4) of the section. It means that the purchaser of the holding becomes liable to pay the rates the moment the sale is completed. The purchaser cannot be heard to say that his liability runs from the date the notice of sale was sent to the local authority or from the date the transfer of ownership was recorded in the books of the local authority; (4) the appellant had paid all the rates liable to be paid by him.

Suppiah v Dewan Bandaraya Kuala Lumpur [1990] 3 MLJ 44 High Court, Kuala Lumpur (Eusoff Chin J).

[Annotation: Reversed on appeal. See [1991] 2 MLJ 45.]

A rate is protected by a first charge on the land itself and in the last recourse it should be recovered by a sale of the land. The words 'subject to the provisions of the Land Code', in s 45 of the Sanitary Boards Enactment, do not make that first charge subject to any other charges created under Part X of the Land Code.

Ang Choon Koay v Chairman, Sanitary Board, Kuala Lumpur [1934] MLJ 274; [1933-34] FMSLR 299 High Court, Federated Malay States (Thomas CJ).

When a large area of land is assessed under the Municipal Ordinance for the purpose of payment of rates, the valuation by the assessing authority should indicate, at least roughly, the different areas assessed and the different valuations placed on such areas. In the case of a large estate, an overall valuation which fails to distinguish the actual areas assessed and the different valuations placed on such areas, of the method by which the assessing authority arrived at the conclusions, is not a proper assessment.

Kim Seng Land Co Ltd v Rural Board [1935] MLJ 153 High Court, Straits Settlements (Terrell J).

P applied to set aside the decision of D who assessed the annual value for the lot occupied by P at RM26,400. P contended, inter alia, that the valuation of the lots and buildings thereon was incorrect and that the notice of assessment was invalid, being arbitrary and unreasonable.

Held, dismissing the application: (1) in the instant case, in the absence of any valuation done by P to suggest that the valuation done by D was on the high side, the court held that the assessment of the lots and buildings was fair, proper and reasonable; (2) the notice of assessment was also valid by virtue of ss 158 and 163 of the Local Government Act 1976 (Act 171). Under s 158, the mistake in the lot number in the notice could not be a ground for quashing or setting aside the rate imposed on P. Also under s 163 of the Act, P was liable to pay the rates imposed by virtue of being the occupier of the buildings on which rental value the rate is determined.

Syarikat Nam Lee Amang Factory Sdn Bhd v President Mesyuarat Lembaga Pengurus Majlis Perbandaran Ipoh [1989] 3 MLJ 51 High Court, Ipoh (Abdul Malek J).

Regulation 13 of Part 1 of First Schedule of the Municipal Ordinance contemplates a notice addressed to a particular individual calling upon him to show cause why he should not effect certain repairs and alterations. Notices placed on public notice boards and inserted in a local newspaper do not comply with the requirements of that regulation. Where a Malay woman who understood neither English nor Chinese stated in evidence that she had never seen such notice and in any case she could not understand it, it would be impossible for a court to hold that she had been called upon 'to show cause' within the meaning of that regulation, why she should not execute repairs.

Tan Hung Nieng v Dayang Mas Juidah [1948] SCR 19 Supreme Court, Sarawak

In this case, at all material times, the plaintiff had been tenant and the defendant landlord of premises known as No 110 Tras Street. There appeared to be neither written contract nor express convenant to repair by either party. In consequence of a complaint by the plaintiff (not having obtained any satisfaction from the defendant) that the premises were badly in need of repair to the municipal authorities, a nuisance notice dated 13 April 1950, was served on the defendant. The defendant did not comply with the notice and in October 1950 was summoned and fined. The authorities took further steps and a closing order was obtained. The plaintiff, on hearing of the closing order, took up the matter with the municipal architect with a view to have the enforcement of the order postponed. The following resolution of the Municipal Commissioners was passed. The Chairman moves, duly seconded, that the decisions taken and recommendations made by the Committees, himself, the Deputy President and on papers circulated be confirmed and adopted as amended, and it is resolved accordingly: G-193/51 Considered representations from the tenant of No 110 Tras Street in connection with a closing order made thereon on the application of the owner and agreed unanimously to authorize the Municipal Architect & Building Surveyor to apply for an adjournment of the hearing of the application for an ejectment order in order to enable herself to carry out the works necessary for abatement of the nuisance at these premises.' Subsequently, she had the necessary repairs done herself. She sought to recover the cost from the defendant and based her claim on s 373 of the Municipal Ordinance (Cap 133).

Held: the resolution of the Municipal Commissioners could be construed as an approval and, therefore, the plaintiff was entitled to recover the cost of the work. In the absence of agreement, to ascertain the amount, there must be an inquiry by the registrar, and what the plaintiff could recover was limited to the necessary cost of what the defendant was ordered to do.

Yap Choo Lian v Chan Ah Yong [1952] MLJ 166 High Court, Singapore (Murray-Aynsley CJ).

[Annotation: See also Ang Tiong Seng v Kong Ah Loi [1966] 2 MLJ 64.]

Although no system of drainage had been provided by the Municipal Commissioners, the penal provisions of s 124 of Ordinance IX of 1887 are enforceable against occupiers.

Lee Queh Seng v Municipal Commissioners [1889] 4 Ky 554 High Court, Straits Settlements (Wood Ag CJ).

The plaintiffs in the present claim were owners of the land and premises situated at Pasir Panjang Road and Pasir Panjang Hill on which the plaintiffs had erected four blocks of flats. The defendants were the lessees for a term of 999,999 years of the said flat units. Sometime early in December 1969, due to heavy rain, the drain and retaining wall by the side of No 43D Pasir Panjang Hill collapsed. The plaintiffs consulted their architects. On 15 December 1969, the plaintiffs wrote to the defendants that measures had to be taken immediately to protect that property in the estate. The plaintiffs suggested that a new wall be erected and that it would cost about S$32,000. They requested the contribution of S$1,000 immediately from each of the defendants. The response from the defendants was poor and the plaintiffs were unable to proceed with the works. In June 1970, the plaintiffs received a notice under s 51(1) of the Environment Public Health Act 1968 from the Chief Building Surveyor requiring the plaintiffs, inter alia, to erect proper and sufficient shoring to prevent landslides and collapse of the retaining wall. On 9 December 1970, the plaintiffs wrote to the defendants reminding them of their letter of 15 December 1969 and informing them that the plaintiffs had received a notice from the Public Works Department requesting them to divert the sewer lines in the estate to connect the government sewer along Pasir Panjang Road. Because of the poor response from the defendants, the plaintiffs wrote to the defendants on 26 July 1971, giving the defendants notice that as from 1 January 1972, they would discontinue the maintenance works for the flats and requesting the defendants to organise themselves into a new management corporation as soon as possible to look after the maintenance works in respect of the flats. In August 1973, the plaintiffs were served with a notice under s 2(2) of the Local Government Integration Act (Cap 210, 1970 Ed) and Byelaw 14 of the Municipal (Private Sewage Purification Plants and Chemical Closet) Byelaw 1951 by the PWD requiring the plaintiffs to divert the sewer lines in the estate to connect to the Government sewer. Several discussions were held with the proper authorities about the building of the retaining wall, approval to which was finally given. In May 1974, the plaintiffs invited tenders for the erection and completion of the retaining wall, and diversion of sewer from the sewerage treatment plant to connect to the public sewer together with ancillary works. On 16 September 1974, the plaintiffs wrote to the defendants informing them that 'due to the increased cost in the maintenance of the above property, we regret we have to exercise our right under cl 6 of the lease to increase the rent (maintenance fee) to S$15 per flat per month with effect from 1 April 1975'. The plaintiffs claimed from the defendants a pro-rata contribution of the expenditures incurred by them, under cl 4(1) of the leases, plus 10% under cl 2(f) of the leases, and alternatively under cl 2(b) of the leases. In addition, the plaintiffs claimed against a number of the defendants miscellaneous sums due under the leases and rental.

Held, allowing the plaintiffs' claims: (1) a covenant by a landlord to repair the demised premises is construed as a covenant to repair on notice and until he has received notice, or has actual knowledge of the want of repair, the landlord will not be guilty of any breach of his covenant; (2) the object of the said lease was to transfer all the liabilities from the plaintiffs to the purchasers; the sewer diversion work was required under Byelaw 14 of the Municipal (Private Sewage Purification Plants and Chemical Closet) Byelaw 1951 and was not a plaintiffs' covenant.

Melodies Ltd v Wong Peng Kin & Ors [1980] 1 MLJ 272 High Court, Singapore (Chua J).

In Suit No 3386 of 1976, Chua J (see [1980] 1 MLJ 272) allowed the plaintiffs' claim for payment of maintenance fees and increase in rental. This was an appeal by the defendants. The facts of the case are briefly as follows. The plaintiffs in this case were owners of the land and premises situated at Pasir Panjang Road and Pasir Panjang Hill on which the plaintiffs had erected four blocks of flats. The defendants were the lessees for a term of 999,999 years of the said flat units. Sometime in early December 1969, due to heavy rain, the drain and retaining wall by the side of No 43D Pasir Panjang Hill collapsed. The plaintiffs consulted their architects. On 15 December 1969, the plaintiffs wrote to the defendants that measures had to be taken immediately to protect the property in the estate. The plaintiffs suggested that a new wall be erected and that it would cost about S$32,000. They requested a contribution of S$1,000 immediately from each of the defendants. The response from the defendants was poor and the plaintiffs were unable to proceed with the works. In June 1970, the plaintiffs received a notice under s 5(1) of the Environmental Public Health Act 1968 from the Chief Building Surveyor requiring the plaintiffs, inter alia, to erect proper and sufficient shoring to prevent landslides and collapse of the retaining wall. Between December 1970 and July 1973, the plaintiffs endeavoured to obtain some kind of agreement with the defendants with regard to the works to be done under the said notice but were unable to do so. In August 1973, the plaintiffs were served with a notice under s 2(2) of the Local Government Integration Act (Cap 210, 1970 Ed) and byelaw 14 of the Municipal (Private Sewage Purification Plants and Chemical Closet) ByeLaws 1951 by the Public Works Department requiring the plaintiffs to divert the sewer lines in the estate to connect to the government sewer. Several discussions were held with the proper authorities about the building of the retaining wall, approval to which was finally given. In May 1974, the plaintiffs invited tenders for the erection and completion of the retaining wall, and diversion of sewer from the sewerage treatment plant to connect to the public sewer together with ancillary works. On 16 September 1974, the plaintiffs wrote to the defendants informing them that 'due to the increased cost in the maintenance of the above property we regret we have to exercise our rights under cl 6 of the lease to increase the rent (maintenance fee) to S$15 per flat per month with effect from 1 April 1975'.

Held: (1) the trial judge was entitled on the evidence before him to find that the plaintiffs had justified their proposed increase; (2) the plaintiffs were not, however, entitled to increase the rent from 1 April 1975. The said letter of 16 September 1974 was effective to increase the yearly rent only from 1 January 1976. The amounts due by the defendants in respect of unpaid rents must be reduced accordingly; (3) the costs of the sewer extension work was not incurred by the plaintiffs voluntarily but as a direct result of a notice served under the provision of the Local Government Integration Act (Cap 210). Such costs were an outgoing on the estate within the meaning of cl 2(b) of the leases and therefore payable by the defendants.

Wong Peng Kin & Ors v Melodies Ltd [1981] 1 MLJ 128 Court of Appeal, Singapore (Wee Chong Jin CJ, D'Cotta and Rajah JJ).

Where a piece of land is detrimentally affected by the construction through it of a large drain by the Municipal Commissioners, it is no answer to a claim by the owner for compensation that the value of the land has improved as a result of their action, as betterment or enhanced value cannot be set off against damages. The delay on the part of the owner of the land in commencing proceedings against the municipality, unless the claim is one that is barred by limitation, does not deprive him of the right of action.

Shaik Sahib v Municipal Commissioners [1932] MLJ 53 District Court, Straits Settlements (Dodd DJ).

A picture theatre is a 'house' as defined in the Sanitary Boards Enactment and hoardings displaying advertisements of films being exhibited or about to be exhibited at the theatre and not projecting over a street, are signboards affixed to a house within the definition given in byelaw 1 of the byelaws made under the enactment, and are therefore exempted under byelaw 7 from being licensed under byelaw 2.

Public Prosecutor v Ho Ah Loke [1939] MLJ 300 High Court, Federated Malay States (Terrell Ag CJ).

The appellant, who was an architect carrying on business in Kuala Lumpur, put up on Lot 16 Sec 88 a hoarding affixed to a post about five ft high facing Ampang Street. The hoarding was a board on which was inscribed the words 'Architect, TC Van Langenberg & Son, LRIBA, FIAA'. A building was in the course of erection on the lot in question which was within the Sanitary Board area and was being erected under the supervision of the appellant and he was the architect thereof. He was convicted in the magistrate's court, Kuala Lumpur, at the instance of the Kuala Lumpur Sanitary Board with having contravened byelaw 2 of Part IX of the byelaws made under the Sanitary Boards Enactment and fined RM2. The appellant appealed to the Supreme Court against the conviction on the grounds that: (1) the byelaws were ultra vires the enactment and therefore invalid; and (2) the Sanitary Board had no power to license signboards or advertisements.

Held: (1) as there was nothing unreasonable in the byelaws in question, and as they did not appear to be either in excess of the statutory powers authorizing them or repugnant to the statute under which they were made or to the general principles of law, they were not ultra vires the Sanitary Boards Enactment (Cap 137) and were therefore valid; (2) the Sanitary Board had power to license signboards or advertisements.

Van Langenberg v Public Prosecutor [1939] MLJ 293 High Court, Federated Malay States (Gordon-Smith J).

This was a claim by way of originating summons for costs and compensation amounting to RM338,378.45 for removal of squatters by the applicant. The applicant applied for an order that the holding from which the squatters had been cleared, be attached and sold pursuant to the provisions of s 50 of the Town Boards Enactment (Cap 137) and reg 10(2) and 10A(1) of the Essential (Clearance of Squatters) Regulations 1969. The respondents are co-proprietors of the said land. They contended that the procedure adopted by the applicant was wrong in law because disputed questions of fact and law were involved. They further contended that reg 10A was an amendment to the Essential (Clearance of Squatters) Regulations 1969 and as such it could not be enforced against the respondents in respect of the squatter clearance carried out on 30 November 1969. The Essential (Clearance of Squatters) Regulations 1969 came into force on 2 October 1969. On 24 February 1970, the regulations were amended and such amendment was deemed to have come into force on 2 October 1969. Demolition work was done on 30 November 1969, that is, before the amendment to the regulations was made. However, the respondents were billed on 31 March 1970, that is, after the amendment.

Held, allowing the claim: (1) the general rule is that there is a presumption against giving statutes a retrospective operation. The presumption is that the Legislature does not intend what is unjust. However, the rule is a mere presumption and as such it may be rebutted by express words in the Act or by circumstances sufficiently strong to replace it. In the present case, it was clearly stated in the regulations that the amendment was to take effect from a date antecedent to its making. Regulation 10A clearly governed the instant case because the amendment had retrospective effect; (2) when a question of fact is at issue, the action is to be by way of writ and not by originating summons. In this case, the disputed question of fact would be as to the number of squatter families removed from the land. But with the amendment, the method of computing was by way of area. Therefore, the question of how many squatter families were removed was not relevant and hence not a fact crucial to the determination of the case. Therefore, the procedure adopted by the applicant was in order. Whether the compensation levied was fair and equitable considered.

Pesurohjaya Ibu Kota Kuala Lumpur v Public Trustee & Ors [1971] 2 MLJ 30 High Court, Kuala Lumpur (Raja Azlan Shah J).

Dedication, so as to constitute a public right-of-way, will not be presumed unless the facts of the case are such as to show that the owner of the soil intended to do so. User alone, for however long a period, is not conclusive on this point; it may be rebutted by showing that the state of the title was such that dedication was impossible, or by facts showing that the owner had no such intention. A landing place from the seaside to a highway is prime facie also a highway; but the presumption is not absolutely necessary, and may be rebutted as above stated. Trustees of land for a special purpose have no power to dedicate it as a highway. A private right-of-way over land granted for a special purpose will be presumed after user for several years, where its user as a private right-of-way would not be inconsistent with the purposes for which land was granted. The formation and constitution of the municipal body considered.

Municipal Commissioners v Tolson [1872] 1 Ky 277 High Court, Straits Settlements (Hackett J).

[Annotation: As to definition of 'public street', see R v Manasseh & Co (1891) SLR NS 18.]

Obiter: a notice to pave, etc given by the Commissioners under s 101 of Ordinance No 135 (Municipal), in order to be valid, must sufficiently specify the works required to be done. The absence of specific information as to such matters as the levels to be adopted, the dimensions of the roadway, channels, and drains, makes the notice bad.

Eusoff Hadjee Ahmad v Municipal Commissioners [1931] SSLR 81 Supreme Court, Straits Settlements (Shaw CJ, Whitley and Barrett-Lennard JJ).

Where an expression is used in any form of legislation, it must be interpreted with the ordinary canons of interpretation. Therefore, where the expression 'open development area' was used by the Ipoh Town Council as part of a plan which had statutory authority and the learned judge below had, basing his construction on three considerations: (i) the opinion of experts; (ii) the wording of the reference on the plan itself; and (iii) the development which has taken place in practice in the town of Ipoh, interpreted the expression to mean an area for detached or semi-detached private residences only, on appeal,

Held: (1) the evidence of experts was not admissible; (2) the only valid consideration for the purpose of construction was the wording of the plan; (3) when so interpreted, the expression 'open development area' meant an area in which the Town Council's discretion to approve buildings was fettered to the extent that user for all industrial purposes or for shophouses or terrace dwellings was prohibited. Per Thomson CJ: 'What we have to ask is not what persons professionally engaged in the pursuit of town planning mean by it when discussing their own mystique among themselves but what meaning would it convey as to the intention of the Town Council when it made the plan to a prospective purchaser of land or his legal advisers.'

Ipoh Town Council & Anor v Ng Khoon Khoon [1960] MLJ 227 Court of Appeal, Ipoh (Thomson CJ, Hill and Good JJA).

In this case, the plaintiff owned a bungalow on land in Johore Bahru. The first defendant owned a piece of land on the boundary of the plaintiff's land and had obtained approval to erect a four-storey building, the plans for which were approved by the Town Council, Johore Bahru. The plaintiff claimed a declaration that the approval of the building plans by the Town Council was illegal and inoperative or in the alternative that the approval of the building plan was null and void as being ultra vires and was approved contrary to the rules of natural justice. He also claimed damages against the Town Council and the owner of the land on which the building was built. It was also alleged that there had been a breach of the building byelaws and the plaintiff claimed damages arising from this breach. On a preliminary objection, the High Court had held that even assuming the approval of the building plans by the Town Council was wrong, the plaintiff had no cause of action. An appeal against this ruling was allowed by the Federal Court ([1969] 1 MLJ 195) and it was ordered that the case be remitted back to the High Court for retrial of the issues of fact and determination of the suit.

Held: (1) the onus was on the plaintiff to establish that there had been a breach of s 145 of the Town Board Enactment (Johore No 118) and on the evidence he had failed to discharge the burden, as the approved zoning plan showed that the building approved came within the class of building that may be permitted by the Town Council; (2) the first defendant had committed a breach of byelaw 46 of the Town Boards Enactment in that he had failed to construct any effective boarding sufficient to protect the public. He had also failed to comply with byelaw 46 and in the circumstances of the case was also negligent; (3) on the evidence, the plaintiff was entitled to damages of RM1,505 against the first defendant.

Tok Jwee Kee v Tay Ah Hock Sons Ltd & Anor [1973] 1 MLJ 129 High Court, Johore Bahru (Abdul Hamid J).

[Annotation: See also under the subject heading Local Government (Buildings).]

This was an application by a registered proprietress of land for an order that the respondent be directed to give planning permission. The said land is within the municipal boundary but not covered by the approved town plan. It was averred that in 1964, the applicant asked for planning permission to erect an additional two-storey shophouse on the said land. This site plan was not approved. The applicant's appeal was dismissed. The ground for refusal was that the new road improvement line would affect the portion under appeal. The applicant contended that the ground for refusal was ultra vires as the new road improvement line had not been gazetted. A further contention was that as the area had not been included as part of the approved town plan, the proposal for the new road improvement line could not have any effect. The respondent contended that the new road improvement line need not be gazetted, and although the said land was not included as part of the approved town plan, the respondent had power to prescribe a regular line of street.

Held: the Commissioner is empowered to refuse approval of a plan for any new building to be erected upon any land in respect of which the preparation of a lay-out plan has been made. The Commissioner had rightly exercised the powers given under s 145(ii) of the Town Boards Enactment (FMS Cap 137) and therefore had not in any way acted ultra vires his powers.

Liew Kum Kiew v Commissioner of the Federal Capital of Kuala Lumpur [1972] 1 MLJ 129 High Court, Kuala Lumpur (Abdul Hamid J).

Observance of the proper ceremonies is essential to adoption.

Re Imat, deceased (1927) 7/1 JMBRAS 248 BW Elles, Commissioner of Lands and Abdullah bin Haji Dahan, Undang of Rembau

Even within the perut a definite act of adoption is necessary to confer rights of inheritance.

Re Siada, deceased (1929) 7/1 JMBRAS 257 FW Douglas, Commissioner of Lands and Haji Sulong bin Ambia, Undang of Rembau

[Annotation: Varying the decision of the Collector, HN Hunt.]

The personal law of Malaya is communal. The personal law of the Malays is composed of two main elements ancient Malay custom and Muslim law the latter having been adopted in varying degrees in different places but nowhere to the total exclusion of the earlier customary law. Evidence is admissible to prove that a particular custom applies even though it be at variance with the Muslim law. Adoption is a recognized part of the personal law of the Pahang Malays. Where a child has been adopted by a married pair and the husband dies, the adoptive mother is ordinarily entitled to the custody of the child. Quaere: whether such adoption is in any event revocable. A decree for custody may be enforced by a local chief without formal process.

Jainah bte Seemah v Mansor bin Iman Mat & Anor [1951] MLJ 62 High Court, Raub (Taylor J).

For the purpose of adoption, a person from a different luak ranks as a foreign Malay, whether a member of the adopting tribe or not.

Re Leha, deceased (1929) 7/1 JMBRAS 240 ECH Wolff, British Resident and Abdullah bin Haji Dahan, Undang of Rembau

On the death of the husband, all the charian laki-bini passes to the widow as trustee for the issue, and thereupon becomes subject to customary limitations. An adopted daughter has all the rights of a natural daughter.

Re Lamit, deceased (1929) 7/1 JMBRAS 122 EN Taylor, Collector

The proper guardian of infants is not their father, but their waris. In the absence of a near female relative, a woman may be adopted by the deceased wife's family so as to become her sister for the purposes of ganti tikar and guardianship but this confers no rights to inherit the ancestral property of the deceased.

Re Timah, deceased (1929) 7/1 JMBRAS 233 MD Daly, Commissioner of Lands and Abdullah bin Dahan, Undang of Rembau

Limited adoption of a woman from outside the tribe kadim adat pada lembaga confers on the adoptee the right to inherit the charian laki-bini of the adoptive parents.

Re Haji Abdul Rahim, deceased (1929) 7/1 JMBRAS 244 JW Simmons, British Resident and Abdullah bin Haji Dahan, Undang of Rembau

[Annotation: Affirming decision of EN Taylor, Collector.]

The descendants of a female adopted, kadim adat dan pesaka, are eligible for pesaka giliran. A female can be adopted kadim adat pada lembaga; a female so adopted and her descendants: (1) can receive harta charian of the adopting family either by gift or by inheritance; (2) cannot receive harta pesaka of the adopting family by gift or by inheritance; (3) her descendants are not eligible for the pesaka giliran of the adopting family.

Re A Bulat (1929) 7/1 JMBRAS 247

Both males and females may be adopted kadim adat dan pesaka.

Re Sitiawa, deceased (1929) 7/1 JMBRAS 238 EN Taylor, Collector

This case deals with the effect of the limited adoption of a non-Malay male person.

Re Kek Sian, deceased (1929) 7/1 JMBRAS 242 GA de C de Moubray, Deputy Registrar

Limited adoption within the perut gift of property is essential to validity. Where the family property has been fully distributed, the waris cannot maintain an objection to the gift, so as to defeat the adoption. Acquired property once inherited becomes ancestral property.

Kiah v Amah (1929) 7/1 JMBRAS 253 JW Simmons, British Resident and Abdullah bin Haji Dahan

[Annotation: Allowing appeal from EN Taylor, Collector.]

Adoption (kadimkan) once performed is irrevocable.

Sapiah v Sintan (1929) 7/1 JMBRAS 237 R Irvine, Collector

Full adoption of a member of the same perut can be affected without any ceremony other than a family feast. The person so adopted is not precluded from inheriting from her natural mother also.

Re Siato, deceased (1929) 7/1 JMBRAS 249 EE Pengilley, Collector

Between near relatives, effective adoption can be accomplished without formality beyond a family feast; it confers complete rights of inheritance both on the adopted daughter and on her descendants.

Re Kepam, deceased (1929) 7/1 JMBRAS 252 EN Taylor, Collector

Adoption is recognized by Malay custom in Sarawak, and if registered in accordance with the laws of Sarawak, the effect of such adoption is that the adopted child stands in the same relation to the adopting parent or parents as would a child born in lawful wedlock, even though this is not in accordance with the Hukum Shara.

Sheripah Unei & Anor v Mas Poeti & Anor [1949] SCR 5 Supreme Court, Sarawak

Both the wife and the waris of a slayer are liable for the funeral expenses of the slain person but the widow and orphans are not entitled to compensation for loss of support. The modern view of balas discussed.

Chemah v Ma'Ali & Ors (1929) 7/1 JMBRAS 260 EN Taylor, Magistrate, Rembau

In Rembau, the use of the word chagar is limited to security but it means security generally, not any particular form of contract, and not necessarily in connection with land.

Norisah v Miut (1929) 7/1 JMBRAS 267 EN Taylor, Collector

Funeral expenses are an actual charge on customary property and the Collector has power to order sale to enforce satisfaction of such a charge.

Re Sitam, deceased (1929) 7/1 JMBRAS 222 EN Taylor, Collector

This case deals with the peculiar Rembau charge gadai makan hasil.

Dato Langsa Suleiman v Usup (1929) 7/1 JMBRAS 261

In the case of a charge accompanied by an agreement for the chargee to occupy the charged land (gadai makan hasil), the chargor has a right to pay off the charge before expiration of the term and resume possession of the land, but the chargee may be entitled to compensation.

Jaibah v Rampai (1929) 7/1 JMBRAS 265 EN Taylor, Magistrate

Inherited land cannot be charged except for a purpose sanctioned by the custom.

Samat v Supau (1929) 7/1 JMBRAS 178 Osman bin Taat, Assistant Collector, Rembau

Ancestral land cannot be sold to pay debts if the holder has acquired property available.

Si-Alus v Inoh (1929) 7/1 JMBRAS 177 Osman bin Taat, Assistant Collector, Rembau

The debts of a married pair, and the burial expenses of both, are charges on the charian laki-bini.

Re Dahil, deceased (1929) 7/1 JMBRAS 113 AH Lemon, British Resident

[Annotation: As for principles governing liability for funeral expenses see Ungkar v Sichik (1929) 7/1 JMBRAS 220.]

If a woman dies in wedlock, the funeral expenses and also the debts incurred during the marriage are chargeable on the charian laki-bini.

Kassim v Amun (1929) 7/7 JMBRAS 160 EN Taylor, Magistrate

On the death of a wife, her funeral expenses and the debts of the marriage are charges on the charian laki-bini property, primarily on moveables. If the woman leaves issue of the marriage her waris are entitled to recover, on behalf of the children, (at least) one half of the balance of the charian laki-bini. The proper time to arrange the division is the hundredth day after the death; if, in default of agreement then, division is made subsequently by the court, it is to be made with regard to the assets as at that day.

Re Puan, deceased (1929) 7/1 JMBRAS 167 EN Taylor, Deputy Registrar

The custom of Rembau, whereby the responsibility for a debt incurred by a man while a bachelor or widower falls upon his relations on the mother's side, is not contrary to public policy.

Re Tiambi (1904) Innes 285; 7/1 JMBRAS 57 JR Innes, Senior Magistrate

[Annotation: On appeal from AEC Franklin, Magistrate.]

Divorce is a condition precedent to a claim by the man for division of charian laki-bini.

Ujang v Bujok (1929) 7/1 JMBRAS 116 GM Kidd, District Officer, Tampin and Abdullah bin Haji Dahan, Undang of Rembau

[Annotation: On appeal from EN Taylor, Collector.]

On dissolution of marriage with a saving clause (nikah ta-alik) the wife is entitled to the whole of the charian laki-bini.

Peah v Pekih (1929) 7/1 JMBRAS 117 EN Taylor, Collector

On divorce, cherai hidup, the charian laki-bini is divided equally, irrespective of the number of children.

Abdullah v Awa (1929) 7/1 JMBRAS 118 AH Lemon, British Resident

[Annotation: Dismissing appeal from Raja Uda, Collector, Rembau.]

Division in respect of divorce can be enforced afterwards, provided that it was claimed at the time of the divorce.

Si-Alang v Samat (1929) 7/1 JMBRAS 115 EN Taylor, Collector

Generally, throughout Malaya, except in the Straits Settlements, a divorced wife is entitled to a share of all land acquired during coverture. The share of a Perak woman fixed at one-third.

Rasinah v Said (1937) 15/1 JMBRAS 29 WR Daly, Commissioner of Lands

[Annotation: On appeal from TP Coe, Collector.]

Perak State Council Minute (1907) Perak Gazette 241; (1937) 15/1 JMBRAS 70

Mas Kawin is a perquisite of the woman payable to her separately, not a joint debt. The rule that all questions of property must be settled before registration of divorce applies to questions at issue between husband and wife, not necessarily to claims by or against third parties.

Mahawa v Manan (1929) 7/1 JMBRAS 111 EN Taylor, Magistrate

An undertaking given by a husband at the time of divorce to transfer land to a child of the dissolved marriage, if conditional on the child attaining majority, is void.

Alang Meah v Teh & Anor (1937) 15/1 JMBRAS 58 Sultan of Perak in Council

A wife seeking divorce by tebus talak must sue for division of the property in the civil court before her petition is entertained by the Kathi. Confinement expenses are an ordinary debt of the marriage; on divorce the wife can recover half the amount from the husband and this issue is triable in the civil court, not the Court of the Kathi.

Siah v Sitam (1929) 7/1 JMBRAS 109 EN Taylor, Magistrate

On cherai hidup, the joint property is divided equally between husband and wife, irrespective of the number of the children to be supported, but the husband has power to give an extra share to the children if he so desires, and this is called tentukan.

Pesah v Dollah (1929) 7/1 JMBRAS 119 EN Taylor, Collector