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  • 1. END-OF-SEMESTER EXAMINATION SEMESTER II, 2004/2005 SESSION AHMAD IBRAHIM KULLIYYAH OF LAWS Programme : Bachelor of Laws Level of : Third Study Reading Time : 2.30 p.m. – 2.45 .m. Date : 31.3.2005 Duration : ( 15 minutes ) Answering Time : 2.45 p.m. – 5.45 p.m. Section(s) : All Sections Duration ( 3 hours ) Course Title : Equity and Trusts I Course Code : LAW 3710 This Question Paper Consists of 7 Printed Pages With 6 Questions. INSTRUCTIONS TO CANDIDATES DO NOT OPEN UNTIL YOU ARE ASKED TO DO SO. Answer four (4) questions. Part A is compulsory. Answer at least one question from Part B and Part C. REFERENCE ALLOWED Selected Malaysian Statutes on Equity and Trusts Any form of cheating or attempt to cheat is a serious offence which may lead to dismissal Statutes should be free from any form of annotation. APPROVED BY
  • 2. 2 PART A COMPULSORY QUESTION QUESTION 1 Carlos contracted to sell all his land to his friend Mr. Istiaq. On the day of signing the agreement, Carlos changed his mind and told Istiaq that one piece of the land located in Sungai Pusu is to be excluded as he thought of giving it to the SPCO charitable organization. Istiaq agreed and they informed Adreiana, Carlos’s daughter on the intention. After signing the Sale and Purchase Agreement, he left the country for honeymoon with his 21 year old wife, Bellina. Meanwhile Adreiana, who is a volunteer in the SPCO charitable organization was surprised that the land in Sungai Pusu has also been included in the sale. So, she applied for rectification and argued that her father had never intended to sell the land in Sungai Pusu and there was a mistake in the contract. The purchaser’s lawyer argued that she cannot bring an action and there was no mistake on the part of the parties. In addition there must be a common and continuous intention on the part of the vendor. The purchaser’s lawyer further claimed that the vendor is keeping quiet therefore maybe he has agreed to sell the land. On the other hand, Adreiana argued that the father is not aware about the mistake and he cannot be contacted at all as he does not wish to be disturbed. Discuss whether Adreiana can rectify the contract. (15 marks)
  • 3. 3 Answer at least ONE (1) question from Part B. PART B QUESTION 2 a. Declaration is always known as a flexible remedy. It suits all sorts of situations. It is said to apply to a “wide range of circumstances” and to a “wide variety of cases in terms of subject-matter” per Raja Azlan Shah Ag LP in Dato’ Menteri Othman bin Baginda v. Dato’ Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 at 31. Discuss on Declaratory Decrees found under the Specific Relief Act 1950 and support the answer with decided cases. (6 marks) b. ‘The Court accords legitimacy and legality only to possession taken in due course of law. If such actions are condoned, the fundamental rights guaranteed under the Constitution of India or the legal rights would be given go- bye either by the authority or by rich and influential persons or by muscleman. Law of jungle will prevail…’ per M.B. Shah, J in S.R. Ejaz v. Tamil Nadu Handloom Weavers Co-operative Society Ltd. (2002 SOL Case No. 105)
  • 4. 4 i. What is the law in Malaysia in regards to the above issue? Discuss and substantiate your answer with reference to the Specific Relief Act 1950 and decided cases. (5 marks) ii. Define possession. Substantiate your answer with reference to the Specific Relief Act 1950 and decided cases. (4 marks) QUESTION 3 a. With reference to relevant statutes and decided cases, discuss on the influence of equity in the Industrial Courts in Malaysia. (4 marks) b. What is the difference between Mandatory Injunction and Prohibitory Injunction? Substantiate your answer with reference to Specific Relief Act 1950 and decided cases. (5 marks) c. As far as injunction and specific performance are concerned, these equitable relief will not be granted to enforce contracts for personal service. Nevertheless there is an exception in cases relating to contract of employment.
  • 5. 5 Explain the above statement with reference to provisions under the Specific Relief Act 1950 and decided cases. (6 marks) QUESTION 4 “Equity looks to the intention and not the form” With reference to decided cases, explain the meaning and discuss the applicability of the above maxim. Compare it to an Islamic legal maxim of similar nature. (15 marks)
  • 6. 6 Answer at least ONE (1) question from Part C. PART C QUESTION 5 In February 2003, Airgate Sdn. Bhd. (‘Airgate’) was appointed as sub-contractors of Master Telecommunications Sdn. Bhd. (‘Master’) in respect of the building of a telecommunications tower in Masai, Johor. It was agreed between Airgate and Master that payment of consideration under the sub-contract would be by way of progress payments paid by the Government of Malaysia due under the main contract to Master. Master did not give any notice to the Government of Malaysia about this arrangement until November 2003. In September 2003, Master assigned all its rights and interests in the main contract to Tenaga Switchgear Sdn. Bhd. (‘Tenaga’) under a Deed of Assignment. Written notice of this assignment was given to the Government of Malaysia in December 2003. Airgate now brings an action against the Government of Malaysia in respect of the progress payments due. Tenaga wants to intervene. With reference to decided cases, advise the parties as to who has the best right to the progress payments (15 marks)
  • 7. 7 QUESTION 6 Habil and Qabil were granted a piece of land under temporary occupation license (TOL) in Ampang. They have been staying on TOL land for the last 5 years. Habil runs a small herbs nursery while Qabil opens a herbs restaurant. Last year, Qabil renovated his restaurant to accommodate the increase of customers and Habil built a small shop to display his processed herbs. The Municipal Council assured them that they can continue with their businesses for at least the next few years. They also had a few meetings with the district officer and the head of the village where they were given assurance that sooner or later the land will become theirs. Last week, Habil and Qabil received a letter from the Ampang Land Office in which they were requested to vacate the land within three months from the date of the letter. Both of them were so frustrated. They have spent a few thousands to expand their businesses. Advise both of them on the possibility of invoking equitable estoppel against all the parties concerned. Based on decided cases, propose the best type of estoppel to be adopted in their cases and advise them on the best possible relief to be granted by the court to assist them, if any. (15 marks)