Subjek: Equity & Trust 1 Tahun: 2014 Semester 1 (2014/2015)

1. QUESTION 35
Hanis Syahirah binti Mohd Zulkefli
(1120453)
Nur Atheefa Sufeena binti M. Suaree
(1120454)

2. Issue
• Whether Fuad has the right to sought for
the declaration from the court regarding to
the possession of land?

3. Repurchase Agreement (Repo)
& Declaration
• Repo is a contract between a buyer and a seller
of debt securities stating that the seller will
repurchase the securities after a certain length of
time or after certain conditions are met.
• Declaration is a pronouncement by the court as
to person’s entitlement as to any legal character
or to any property right.

4. Section 41 of the Specific Relief Act
• Any person entitled to any legal character, or to any
legal right as to any property may institute a suit against
any person denying, or interested to deny, his title to
the character or the right, and the court may in its
discretion make therein a declaration that he is so
entitled, and the plaintiff need not in that suit ask for any
further relief.
• Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief than
a mere declaration or title, omits to do so.

5. Requirements under the statutory
provisions
1. The plaintiff must be entitled to any legal character or
to any right as to any property. The property right
must be an existing right or a present interest; a
mere contingency is not sufficient
2. The defendant is denying or interested to deny
plaintiff’s right
3. The plaintiff is not able to seek further relief than a
mere declaration or title. If he is a position to seek
further relief, he must do so for if he omits to do so.
The court shall not make the declaration

6. 1ST & 2ND
REQUIREMENT

7. Application
• 1st Requirement:
• Fuad has already came into the possession of the land
for three years and he has already paid RM 200,000 in
doing so. So, Fuad has an existing equitable right and
interest over the land.
• 2nd Requirement:
• In this case, the fact that Jamal tried to pay RM200,000
to Fuad showed that he has the interest to deny the
Fuad’s right over the land.

8. 3RD REQUIREMENT

9. Clough v Ratcliffe
Sir James Knight-Bruce VC:
“Nakedly to declare a right, without doing or directing
anything else relating to the right, does not, I conceive,
belong to the functions of this court.”

10. Other equitable reliefs
EQUITABLE RELIEF MEANING
CAN BE
USED/NO?
Specific Performance
an order of a court which requires a
party to perform a specific act,
usually what is stated in a contract.
Interlocutory injunction
An interlocutory injunction is
a court order to compel or prevent a
party from doing certain acts
pending the final determination of
the case.
Mareva Injunction
A temporary injunction that freezes
the assets of a party pending
further order or final resolution by
the Court

11. EQUITABLE RELIEF MEANING
CAN BE
USED/NO?
Rectification
A court orders a change in a
written document to reflect what it
ought to have said in the first
place.
Rescission
A right to repudiate/set aside the
voidable contract.
Cancellation
An equitable remedy by which a
court relieves both parties to a
legal document of their obligations
under it

12. Ainan bin Mahmud v Syed Abu Bakar bin
Habib Yusof & Ors
• The court had established the three requirements in order to
give the declaration.
• Both the declarations sought by the plaintiff were outside
the scope of section 42 of the specific relief enactment.
Though the judgement of this case can still be used in
referring to declaration as it further discuss the requirement
of the defendant may has interested to deny.
• The words "interested to deny" do not include a person who
has not in fact put forward a denial of the plaintiff's claim
though it was conceivable that he might decide to do so.
• The words mean "interested to deny" by reason of some
claim put forward by or on behalf of the person so
"interested."

13. Effect of Declaration
• Section 42 of Specific Relief Act
• A declaration made under this Chapter is binding only
on the parties to the suit, persons claiming through
them respectively and, where any of the parties are
trustees, on the persons for whom, if in existence at the
date of the declaration, those parties would be trustees
• O. 15, r. 16 Rules of Court 2012
• No action or other proceeding shall be open to objection
merely on the ground that a declaratory judgment or
order is sought thereby, and the Court may make
binding declarations of right whether or not
consequential relief is or could be claimed.

14. Application
• Fuad do not able to seek further relief except
declaration.
• So, there is no objection in regards to Fuad in
fulfilling the requirement provided in section 41.
• The effect of the declaration is the possession of land
is binding to Fuad.

15. CONCLUSION

16. • Jamal cannot claim for the possession since the
term has expired. Even though he has tried to
contact Fuad before the term expired, there was
no further action from him.
• Therefore, Fuad can sought to the court to
declare the land is his based on all the reasons,
cases and provisions the stated above.