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PIL - Case Brief
PIL - Case Brief
(LAC3603)
SEMESTER 1 2020/2021
INDIVIDUAL TASKS
KLB2/TLB6
1. Case citation:
Village Holdings Sdn Bhd v Her Majesty The Queen In Right of Canada [1998] 2 MLJ 656
2. Topic:
3. Facts:
Village Holdings Sdn. Bhd. ( the plaintiff) wrote a letter on 17/8/1983 to Messrs. Jones Lang
Wootton, a firm of property consultants and offered to buy a land which the land was used as
residential accommodation for the diplomatic members of the Canadian High Commission in Kuala
Lumpur. Later the offer was conveyed to the Canadian High Commission who in charge for the said
matter. On 8/11/1983, Jones Lang Wootton met with the plaintiff's solicitors with the final draft sale
and purchase agreement was to be subject to perusal and approval by the treasury board and the
On 11/5/1984, a formal written sale and purchase agreement was executed. The plaintiff
company was the named purchaser and Her Majesty the Queen in Right of Canada (the defendant)
as a registered proprietor of the said land was named as the vendor. In the agreement stated that
10% of the purchase price had been received on execution and the completed payment need to be
done within four months of the agreement or within two weeks of the receipt of the approval of the
foreign investment committee, whichever was the earlier. If the plaintiff fail to complete the
payment within the said period, the defendant was entitled to forfeit the deposit.
The plaintiff did not complete the payment and request for extension of time but it come
with a price. The time for completion was extended from 16/9/1984 to 30/9/1985. However, the
plaintiff failed once again and request to extend the time but was declined by the defendant. Later
the agreement was terminated because the plaintiff's failure to complete the payment. Thus, all the
amount paid by the plaintiff during execution was forfeited by the defendant. The plaintiff took out
a writ against the defendant and claimed for a refund of the total amount paid with interest and
damages.
Issue in this case is whether the defendants as the foreign sovereign is subject to the
The court held that the defendant is not subject to the jurisdiction and the writ must be set
aside.
The court has no jurisdiction over a foreign sovereign. In this case the court referring to
Mighell v Sultan of Johore [1894] 1 QB 149. Another case of Sloman v Government of New
Zealand (1875) 1 CPD 567, in matter of sovereign immunity, it will take affect if the service of the
writ is submitted to the jurisdiction of the court by the sovereign ruler or government. But, in this
case there was no submission made by the ruler or government of Her Majesty the Queen in Right
of Canada.
The court took into consideration the counsel of defendants contention. The counsel
affirmed by virtue of Section 3 of the Civil Law Act 1956, the common law of England as
administered on 7 April 1956 applicable. The counsel referred to the case of Mighell v Sultan of
Johore [1894] 1 QB 149 and Duff Development Company Limited v Kelantan Government &
Another [1924] AC 797 as embodied in the common law of England as administered on 7 April
1956 whereby the immunity from legal process accorded to a foreign sovereign was absolute. In
both cases mentioned, the court held that when the court need to exercise authority over sovereign,
he need to decide whether to submit or not and the sovereign can refuse to be impleaded.
Furthermore the court referred to the judgment in the case of Trendtex Trading Corporation Ltd v
Central Bank of Nigeria [1977] 1 All ER 881 that the foundation of the doctrine of sovereign
immunity in international law is reciprocity and mutual recognition. Therefore, for the foreign
sovereign case, the court by virtue of the section 3 of Civil Law Act 1956, there is no space for
doubt that in Malaysia, the law will continue to adhere the doctrine of state immunity in regards of
This case reaffirm that the judge in this case relied on English Common Law position in
respect of section 3 of the Civil Law Act 1956 where the English Common Law is applicable by
Malaysian Court if there is lacuna or absence of any written law and in circumstances of the
In my opinion, this case provide the situation of Malaysian courts where it impliedly
applying customary international law through English common law in regards of the Civil Law Act
1956. Nonetheless, referring to this case, even the court of Malaysia did not rule that it applied the
restrictive theory of State immunity due to the rule of customary international law that is accepted
by most States thus it become a part of the law in Malaysia. For me, it is illustrated in this case that
the judge can reached to their decision only by resorting to English common law and by referring to
Other than that, I think the court decision is fair for both parties because first, the defendant
was a foreign sovereign subsequently bound with the law of sovereign immunity. We cannot said it
is not fair for the sovereignty to be granted with immunity as it was the rule of law. Second, the
plaintiff also need to be aware of his financial capability before offering to purchase the said land.
The defendant was lenient by giving a chance to extend the times for completion of payment after
the plaintiff failed to complete at the first place. So when the plaintiff failed to complete the
payment for the second time and resulting to the deposit being forfeited by the defendant it unfair
for the plaintiff to ask for refund because in the agreement stated that condition and had been signed
by the plaintiff therefore the contract is binding between both party. Any breach of the contract lead
to damages and in this case the plaintiff breach the contract so he need to pay as stated in the
agreement.