Yong Joo Lin

Yong Joo Lin & Ors. V Fung Poi Fong [1941] MLJ 54
17 January 1941
Court of Appeal
Judges: Terrel Ag. C.J. (S.S.), Gordon-Smith Ag. J.A. and Horne J.
Appellants: Yong Joo Lin & Ors
Respondent: Fung Poi Fong

Facts of the Case: 1. In 1905, Yong Nee Chai bought the land and building of No. 19 Cross Street, Kuala Lumpur which was originally a one-storied house. Appellants are the executors of Yong Nee Chai. 2. Adjoining it was No.21 Cross Street which appears to have been built subsequently to No.19. 3. At some period before 1910, No.19 was converted into a two-storied house. The outside wall of of the top storey of No. 21 was utilized. 4. In 1936, defendant, Fung Poi Fong bought the said adjoining land and building, No. 21 Cross Street. 5. It was then held under three Certificates of Title which were surrendered in 1938, one certificate was issued to the defendant. 6. Defendant demolished No.21 about the beginning of 1939, as a result, No.19 became unsafe for habitation due to the removal of the wall adjoining No.19 and of excavations which caused one of the brick piers of No.19 to slip. The Sanitary Board obtained an order for its demolition. 7. Plaintiffs alleged that in removing the wall, the defendant trespassed on the plaintiffs’ land to the extent of few inches. Plaintiffs also claimed that after thirty years’ or ore user, they have a right of support which has been infringed by the defendant. They claim damages for trespass alternatively. 8. It was held by the learned Chief Justice that plaintiffs’ claim would be succeed if English law were applicable. However, in view of the provisions of the Land Code, the common law of England could not be applied. The alternative claim in trespass had not been established. Plaintiffs’ claim was accordingly dismissed, and they have appealed.

Issue: Whether principle of English law is applicable in Federated Malay States?

Held: 1. The common law doctrine of the presumption of a lost modern grant applies in the Federated Malay States and that an easement of support can be lawfully acquired after twenty years or more uninterrupted user. 2. There is nothing in the Land Code 1926 to prevent the application of the common law by virtue of section 2 of the Civil Law Enactment. 3. Appeal is allowed.

Judgement: 1. Principles of English law have for many years been accepted in the Federated Malay States where no other provision has been made by statute. 2. Section 2 (i) of the Civil Law Enactment, therefore merely gave statutory recognition to a practice which the Courts had previously followed. 3. There are three qualifications to the adoption of the English Common Law in the Federated Malay States: a. It only applies if there is no other statutory provision in the F.M.S. b. If it applies, it applies unmodified by any English Statute. c. It must be applied only so far as the circumstances of the Federated Malay States and its inhabitants permit, and subject to such qualifications as local circumstances render necessary.