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Issue #8/2017 23 February 2017

New This Week Case(s) of the Week TALAM CORPORATION BHD & ANOR v. BANGKOK BANK BHD & ANOR [2017] 2 CLJ 365 Latest Cases Legal Network Series CLJ 2017 Volume 2 (Part 4) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

TALAM CORPORATION BHD & ANOR v. BANGKOK BANK BHD & ANOR [2017] 2 CLJ 365
COURT OF APPEAL, PUTRAJAYA
HAMID SULTAN ABU BACKER JCA, PRASAD SANDOSHAM ABRAHAM JCA, ASMABI MOHAMAD JCA
[CIVIL APPEAL NO: B-02(W)-1890-11-2015]
22 AUGUST 2016

LAND LAW: Charge - Sale of land - Default in repayment of banking facility - Public auction of charged property by order of court - Whether bank aware of alternative proposal to redeem charged property at higher price - Whether bank obtained best possible price - Whether conduct of sale within purview of court and not bank - Whether bank complied with relevant provisions of National Land Code and acted in good faith - National Land Code, s. 257(d)

LAND LAW: Charge - Equity of redemption - Doctrine of - Whether has no place in Torrens System Land Code - Whether chargor's right to redeem charged property was preserved - Whether untenable to import doctrine into NLC

TORT: Duty of care - Breach - Default in repayment of banking facility - Public auction of charged property by order of court - Whether bank owed duty of care to chargor - Whether judicial sale within purview of court and not bank - Whether bank obtained best possible price - Whether bank complied with relevant provisions of National Land Code and acted in good faith - National Land Code, s. 257(d)

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Legal Network Series

[2015] 1 LNS 1328	LEMBAGA KEMAJUAN TANAH PERSEKUTUAN v. MAZLAN ALIMAN & ORS	EVIDENCE: Adverse inference - Refusal to participate in trial - Failure to give evidence - Defendants' failure to give evidence in ongoing trial - Defences of justification, fair comment and qualified privilege raised in defamation suit - Whether defendant's refusal to participate in trial rendered evidence given by plaintiff unchallenged and unrebutted - Whether words complained of by plaintiff became true in substance and fact - Evidence Act 1950, s. 114(g) TORT: Defamation - Libel - Defamatory statement contained in title and contents of a book - Claim against author and printer - Serious allegations against a statutory body - Name of plaintiff specifically stated in title and contents of a book - Defendants' failure to give any evidence during trial - Whether words complained of were defamatory in nature - Whether words complained of bore defamatory imputations which referred to plaintiff - Whether book had been published to a third person - Whether title of book and words complained of in their natural and ordinary meaning imputed to plaintiff discreditable conduct or lack of integrity TORT: Defamation - Damages - Claim for general and aggravated damages for libel - Serious injury to reputation, credibility and integrity of a statutory body - Allegation of corrupt and dishonest institution - Allegation that institution acting as an illegal money lender - Defendants' refusal to apologise - Whether award of general damages was in order to vindicate plaintiff's reputation - Whether plaintiff's reputation was aggravated when defendant refused to apologise to plaintiff TORT: Defamation - Defences - Justification, fair comment and qualified privilege - Defendants failed to call witnesses to give evidence - Whether defendant waived their defences
[2015] 1 LNS 1330	ABDUL FARISH ABD RASHID v. ABDUL RAHIM MOHAMAD	CIVIL PROCEDURE: Appeal - Procedure - Appeal against decision of Senior Assistant Registrar ('SAR') - Party who was dissatisfied with decision of SAR on taxation of costs filed a review to Deputy Registrar ('DR') - Whether DR has power to review decision of SAR under present Rules of Court 2012 - Whether proper procedure is to file appeal to High Court
[2015] 1 LNS 1339	YENG CHONG REALTY BHD v. TENAGA NASIONAL BERHAD & ORS	CONTRACT: Sale and purchase of land - Claim for compensation as a result of compulsory acquisition - Purchaser's entitlement to compensation - Purchaser failed to pay balance purchase price almost seven years from lapse of extended completion date - Whether acquisition was carried out between date of agreement and completion date - Whether purchaser was entitled to compensation as a result of compulsory acquisition after having failed to pay balance purchase price CONTRACT: Sale and purchase of land - Breach - Fundamental breach - Purchaser's failure to pay balance purchase price - Whether failure to pay balance purchase price was a fundamental breach
[2016] 1 LNS 361	HENG SENG CHEW & YANG LAIN lwn. PENTADBIR TANAH DAERAH SEBERANG PERAI SELATAN, PULAU PINANG	UNDANG-UNDANG TANAH: Pengambilan tanah - Pampasan - Bantahan terhadap pampasan yang diberi oleh pentadbir tanah - Pentadbir tanah telah memberikan RM200 smp - Penilai kerajaan menganggarkan RM180 smp manakala penilai swasta menganggarkan RM380 smp - Lot tanah terletak berhampiran taman sains dan lebuhraya - Keluasan tanah sekitar 10 ekar - Buku laporan pasaran harta yang dikeluarkan oleh kerajaan mencatatkan pasaran harta tanah adalah sederhana dan bilangan transaksi lebih rendah berbanding tahun-tahun sebelumnya - Sama ada lot-lot perbandingan yang telah dikemukakan oleh penilai kerajaan adalah lebih menyakinkan berbanding dengan lot-lot perbandingan yang telah dikemukakan oleh penilai swasta - Sama ada pampasan tambahan wajar diberikan
[2016] 1 LNS 362	CHEENG CHONG CHING lwn. PENTADBIR TANAH SEBERANG PERAI SELATAN	UNDANG-UNDANG TANAH: Pengambilan tanah - Nilai pasaran - Penentuan nilai pasaran tanah - Kaedah perbandingan - Sama ada tanah yang diambil harus dibandingkan dengan perbandingan yang mempunyai ciri-ciri guna tanah yang sama dan terletak dilokasi yang sama - Sama ada perbandingan yang terbaik adalah dengan tanah yang mempunyai lokasi dan kedudukan serta bentuk yang hampir sama dan tarikh transaksi yang tidak jauh berbeza dengan tarikh nilaian

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CLJ 2017 Volume 2 (Part 4)

COURT OF APPEAL

Talam Corporation Bhd & Anor v. Bangkok Bank Bhd & Anor
Hamid Sultan Abu Backer, Prasad Sandosham Abraham, Asmabi Mohamad JJCA
(Land Law; Tort - Public auction of charged property - Alternative proposal to redeem charged property) [2017] 2 CLJ 365 [CA]

The State Government Of Sabah & Ors v. Clarence Chiuh Ken Loong & Ors
Rohana Yusuf, Idrus Harun, Zamani A Rahim JJCA
(Land Law; Jurisdiction; Administrative Law - Alienation of land - Legitimate expectation - Offer letters to alienate land - Procedure to challenge exercise of statutory powers by public authority) [2017] 2 CLJ 379 [CA]

Tridant Engineering (M) Sdn Bhd v. Ssangyong Engineering & Construction Co Ltd
David Wong Dak Wah, Umi Kalthum Abdul Majid, Hasnah Mohammed Hashim JJCA
(Arbitration - Application to High Court to set aside arbitral award - Whether main contractor could withhold payment pending payment from employer) [2017] 2 CLJ 393 [CA]

Utusan Melayu (Malaysia) Bhd v. Othman Hj Omar
Prasad Sandosham Abraham, Kamardin Hashim, Asmabi Mohamad JJCA
(Tort - Libellous article published in newspaper - Whether defence of qualified privilege available - Whether amount of damages awarded appropriate) [2017] 2 CLJ 413 [CA]

HIGH COURT

Chin Chee Kow v. Peguam Negara Malaysia
Azmi Abdullah JC
(Administrative Law; Words & Phrases - Judicial review - Proceedings against decision of Attorney General of Malaysia - Refusal to grant consent under s. 9 of Government Proceedings Act 1956 - 'Any person' - Rules of Court 2012, O. 53 r. 2(4) - Whether limited to individuals or class of persons) [2017] 2 CLJ 431 [HC]

Saiful Nizam Adnan v. Jabatan Kerja Raya Negeri Selangor & Ors
Gunalan Muniandy JC
(Administrative Law; Constitutional Law - Public servants - Dismissal Whether reasonable and in accordance with principles of natural justice) [2017] 2 CLJ 442 [HC]

Tan Sri Dr Muhammad Shafee Abdullah v. Tommy Thomas & Ors
Hanipah Farikullah J
(Legal Profession; Tort - Misconduct of advocate and solicitor - Motion against advocate and solicitor published on website of Malaysian Bar - Whether President of Malaysian Bar wrongly joined and sued as party to action - Defence of justification, qualified privilege and fair comment) [2017] 2 CLJ 453 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for leave - Proceedings against decision of Attorney General of Malaysia in refusing grant of consent under s. 9 of Government Proceedings Act 1956 - 'Any person' - Whether included members of association - Rules of Court 2012, O. 53 r. 2(4) - Whether test for leave for judicial review satisfied - Whether application frivolous
Chin Chee Kow v. Peguam Negara Malaysia
(Azmi Abdullah JC) [2017] 2 CLJ 431 [HC]

Natural justice - Breach - Dismissal - Act of Lembaga Tatatertib Suruhanjaya Perkhidmatan Awam Negeri Selangor via letter informing plaintiff of his dismissal and cancellation of emolument rights - Whether done in cavalier manner and prejudicial to plaintiff - Whether reasonable and in accordance with principles of natural justice - Whether relevant provisions infringed - Whether decision invalid, void and a nullity
Saiful Nizam Adnan v. Jabatan Kerja Raya Negeri Selangor & Ors
(Gunalan Muniandy JC) [2017] 2 CLJ 442 [HC]

Remedies - Declaration - Procedure to challenge exercise of statutory powers by public authority - Whether ought to have been brought by way of judicial review - Failure to use proper procedure - Whether suit ought to be struck out - Whether appellate intervention warranted - Rules of Court 2012, O. 53
The State Government Of Sabah & Ors v. Clarence Chiuh Ken Loong & Ors
(Rohana Yusuf, Idrus Harun, Zamani A Rahim JJCA) [2017] 2 CLJ 379 [CA]

ARBITRATION

Award - Setting aside - Demand for sums for works done - Application to High Court to set aside arbitral award - Whether main contractor could withhold payment pending payment from employer - Whether claim time barred - Whether proof of debt lodged by respondent postponed limitation period of debt claimed - Whether arbitrator decided on matter outside jurisdiction - Whether High Court correct in setting aside arbitral award
Tridant Engineering (M) Sdn Bhd v. Ssangyong Engineering & Construction Co Ltd
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Hasnah Mohammed Hashim JJCA) [2017] 2 CLJ 393 [CA]

CONSTITUTIONAL LAW

Public servants - Dismissal - Natural justice - Whether breached - Act of Lembaga Tatatertib Suruhanjaya Perkhidmatan Awam Negeri Selangor via letter informing plaintiff of his dismissal and cancellation of emolument rights - Whether done in cavalier manner and prejudicial to plaintiff - Whether reasonable and in accordance with principles of natural justice - Whether relevant provisions infringed - Whether decision invalid, void and a nullity
Saiful Nizam Adnan v. Jabatan Kerja Raya Negeri Selangor & Ors
(Gunalan Muniandy JC) [2017] 2 CLJ 442 [HC]

JURISDICTION

Courts - Powers and jurisdiction - Whether points not stated in memorandum of appeal could be considered - Whether point raised premised on any new fact or evidence - Courts of Judicature Act 1964, s. 69(4) - Rules of Court of Appeal 1994, r. 18(2)
The State Government Of Sabah & Ors v. Clarence Chiuh Ken Loong & Ors
(Rohana Yusuf, Idrus Harun, Zamani A Rahim JJCA) [2017] 2 CLJ 379 [CA]

LAND LAW

Alienation of land - Legitimate expectation - Whether plaintiffs had legitimate expectation purely on offer letters to alienate land - Whether offer conditional upon availability of unencumbered State lands - Whether land title could only be issued after proper survey of land - Whether interest in land only valid upon registration of title - Sabah Land Ordinance, s. 12 - Sabah Land Rules, r. 2
The State Government Of Sabah & Ors v. Clarence Chiuh Ken Loong & Ors
(Rohana Yusuf, Idrus Harun, Zamani A Rahim JJCA) [2017] 2 CLJ 379 [CA]

Charge - Equity of redemption - Doctrine of - Whether has no place in Torrens System Land Code - Whether chargor's right to redeem charged property was preserved - Whether untenable to import doctrine into NLC
Talam Corporation Bhd & Anor v. Bangkok Bank Bhd & Anor
(Hamid Sultan Abu Backer, Prasad Sandosham Abraham, Asmabi Mohamad JJCA) [2017] 2 CLJ 365 [CA]

Charge - Sale of land - Default in repayment of banking facility - Public auction of charged property by order of court - Whether bank aware of alternative proposal to redeem charged property at higher price - Whether bank obtained best possible price - Whether conduct of sale within purview of court and not bank - Whether bank complied with relevant provisions of National Land Code and acted in good faith - National Land Code, s. 257(d)
Talam Corporation Bhd & Anor v. Bangkok Bank Bhd & Anor
(Hamid Sultan Abu Backer, Prasad Sandosham Abraham, Asmabi Mohamad JJCA) [2017] 2 CLJ 365 [CA]

LEGAL PROFESSION

Malaysian Bar - Misconduct of an advocate and solicitor - Allegation of - Motion against advocate and solicitor (plaintiff) published on website of Malaysian Bar - Whether there was blatant attack on actions and character of plaintiff in his capacity as an ad hoc Deputy Public Prosecutor - Whether words defamatory of plaintiff - Claim for injunction restraining defendants from moving motion on Bar Council's future Annual General Meetings - Whether President of Malaysian Bar wrongly joined and sued as party to action - Whether members of Malaysian Bar ought to be able to express opinion on plaintiff's conduct - Whether there was impact on integrity and dignity of Public Prosecutor's office - Defence of justification - Whether arose - Whether defendants had interest or duty to submit motion - Whether defendants entitled to rely on defence of qualified privilege - Whether subject matter of motion a genuine matter of public interest - Whether defence of fair comment applied - Whether defendants acted in breach of statutory duty - Whether motion ultra vires - Legal Profession Act 1976, ss. 41, 47, 56, 57 & 64(6)
Tan Sri Dr Muhammad Shafee Abdullah v. Tommy Thomas & Ors
(Hanipah Farikullah J) [2017] 2 CLJ 453 [HC]

TORT

Damages - Defamation - Libel - Libellous article published in newspaper - Claimant awarded with general and aggravated damages by trial court - Judicial trend in granting damages - Whether trial judge correct in granting separate award for general and aggravated damages - Whether amount of damages awarded appropriate
Utusan Melayu (Malaysia) Bhd v. Othman Hj Omar
(Prasad Sandosham Abraham, Kamardin Hashim, Asmabi Mohamad JJCA) [2017] 2 CLJ 413 [CA]

Defamation - Libel - Libellous article published in newspaper - Imputation that claimant's contract not renewed due to controversies during tenure - Whether statements defamatory in its natural and ordinary meaning - Whether article would lower claimant in estimation of right-thinking members of society - Whether defence of qualified privilege available
Utusan Melayu (Malaysia) Bhd v. Othman Hj Omar
(Prasad Sandosham Abraham, Kamardin Hashim, Asmabi Mohamad JJCA) [2017] 2 CLJ 413 [CA]

Defamation - Misconduct advocate and solicitor - Allegation of - Motion against advocate and solicitor (plaintiff) published on website of Malaysian Bar - Whether there was blatant attack on actions and character of plaintiff in his capacity as an ad hoc Deputy Public Prosecutor - Whether words defamatory of plaintiff - Claim for injunction restraining defendants from moving motion on Bar Council's future Annual General Meetings - Whether President of Malaysian Bar wrongly joined and sued as party to action - Whether members of Malaysian Bar ought to be able to express opinion on plaintiff's conduct - Whether there was impact on integrity and dignity of Public Prosecutor's office - Defence of justification - Whether arose - Whether defendants had interest or duty to submit motion - Whether defendants entitled to rely on defence of qualified privilege - Whether subject matter of motion a genuine matter of public interest - Whether defence of fair comment applied - Whether defendants acted in breach of statutory duty - Whether motion ultra vires - Legal Profession Act 1976, ss. 41, 47, 56, 57 & 64(6)
Tan Sri Dr Muhammad Shafee Abdullah v. Tommy Thomas & Ors
(Hanipah Farikullah J) [2017] 2 CLJ 453 [HC]

Duty of care - Breach - Default in repayment of banking facility - Public auction of charged property by order of court - Whether bank owed duty of care to chargor - Whether judicial sale within purview of court and not bank - Whether bank obtained best possible price - Whether bank complied with relevant provisions of National Land Code and acted in good faith - National Land Code, s. 257(d)
Talam Corporation Bhd & Anor v. Bangkok Bank Bhd & Anor
(Hamid Sultan Abu Backer, Prasad Sandosham Abraham, Asmabi Mohamad JJCA) [2017] 2 CLJ 365 [CA]

WORDS & PHRASES

'Any person' - Rules of Court 2012, O. 53 r. 2(4) - Whether limited to individuals or class of persons
Chin Chee Kow v. Peguam Negara Malaysia
(Azmi Abdullah JC) [2017] 2 CLJ 431 [HC]

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LNS Article(s)

1. FATE OF THE VALIDITY OF DEPENDENT PATENT CLAIMS AFTER THE FEDERAL COURT DECISION IN SKB SHUTTERS MANUFACTURING SDN BHD v. SENG KONG SHUTTER INDUSTRIES SDN BHD & ANOR^[1]* ^{[Read excerpt]}
   LEE CHIAO YING [2017] 1 LNS(A) xiii

[2017] 1 LNS(A) xiii



MALAYSIA

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FATE OF THE VALIDITY OF DEPENDENT PATENT CLAIMS AFTER THE FEDERAL COURT DECISION IN SKB SHUTTERS MANUFACTURING SDN BHD v. SENG KONG SHUTTER INDUSTRIES SDN BHD & ANOR^[1]*

LEE CHIAO YING

IN THIS ARTICLE, LEE CHIAO YING CONSIDERS THE FEDERAL COURT DECISION IN SKB SHUTTERS MANUFACTURING SDN BHD v. SENG KONG SHUTTER INDUSTRIES SDN BHD ON THE VALIDITY OF DEPENDENT PATENT CLAIMS.

Introduction

An independent claim is a broad stand-alone claim. It contains a preamble that acknowledges the state of the art and all of the elements necessary to define the invention. Under Regulation 14 of the Patents Regulations 1986 (“the Regulations”), a “dependent claim” is one that includes all the features of one or more other claims and may also contain additional features. It includes all the features of the independent claim plus some narrower elements and features and is, therefore, narrower in scope than the independent claim. There is no reason why a dependent claim cannot be rewritten by way of amendment or notionally by reading onto the dependent claim to include all of the features of the independent claim as well as the features of the dependent claim without expanding the scope of protection of the originally claimed invention of the dependent claim. By so doing, while the scope of the independent claim might be broader than the scope of the dependent claim, the scope of the originally claimed invention of the dependent claim remains. Approached in that way, the claim differentiation approach construction rule is not displaced.

The Federal Court in SKB Shutters Manufacturing Sdn Bhd v. Seng Kong Shutter Industries Sdn Bhd & Anor has ruled that the dependent claims of a patent are invalid when the independent claim they are dependent upon is found to be invalid.

. . .

* Published with kind permission of M/s Shearn Delamore & Co.

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2. ORIGINALITY IN COPYRIGHT AND THE DEBATE ON PROTECTION OF TRADITIONAL KNOWLEDGE: A VIEW ON NIGERIAN LAW ^{[Read excerpt]}
   K. I. ADAM*I. A. YUSUF** [2017] 1 LNS(A) xviii

[2017] 1 LNS(A) xviii



NIGERIA

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ORIGINALITY IN COPYRIGHT AND THE DEBATE ON PROTECTION OF TRADITIONAL KNOWLEDGE: A VIEW ON NIGERIAN LAW

K. I. ADAM*
I. A. YUSUF**

INTRODUCTION

Copyright is perhaps the most popular and familiar branch of intellectual property law which is used for the protection of literary, artistic, and dramatic achievements. Eligibility to copyright protection rests mainly on the requirement of originality which arguably is the main force in the creative process of all arts. Ironically, this same condition has greatly undermined the influence of copyright in so far as protection of traditional knowledge is concerned. For instance, it is generally believed that copyright cannot protect traditional knowledge because the latter lacks originality. Surprisingly, materials or products derived from traditional knowledge have over time received copyright protection through their collection or compilation into books or other media of fixation. It is for this reason that some have heavily criticized the originality requirement as ineffectual or a mere subterfuge, since it fails to stand against copyright protection of mere collection of information or ideas which were originally generated by persons other than the collectors.

The truth is that the technical connotation of “originality” is not consistent with ordinary thinking whereby creativity or innovation is an integral part of an original work. This calls the fairness of the copyright system into question. The point being made is that where a principle designed to protect an item fails to achieve its target, it should, at least, not become a tool of oppression against such item. It thus becomes imperative that such a key principle should be re-examined to safeguard the integrity of our copyright law. It is precisely that task that has been undertaken in this paper where the nature of copyright and traditional knowledge is considered to highlight the factors of inconsistency between the two systems. It further examines how the technical manipulation of originality has, while seeking to achieve copyright objectives, ended up promoting predatory activities against traditional knowledge which should ordinarily be its candidate for protection. The paper therefore argues that the system could be strengthened to at least offer negative protection of traditional knowledge where the element of innovation or creativity is read into its test of originality. The next section examines the general notion of protection of intangible materials and its relevance to traditional knowledge.

. . .

* Lecturer in law, Department of Business Law, University of Ilorin, Ilorin, Nigeria. The author can be reached at adam_kayus2003@yahoo.com.

** Lecturer in law, Department of Public Law, University of Ilorin, Ilorin, Nigeria. The author can be reached at ibrahimyusuff@gmail.com.

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