Assalamualaikum & a very good evening. We wish all of you the best

of health. Welcome to Evidence 2 (LAW 4111) tutorial

class.

Dol Bin Borgiba

0512721

Eddin Shazli Bin Ab Rahim

0512107

EVIDENCE 2; TUTORIAL

PRESENTATION

QUESTION:Arbas applied to the court for a declaration that his uncle, Salman be presumed dead because he has not heard from him for almost nine years since he left for Cairo University to pursue his studies.

Discuss the principle that should be considered when advising Arbas on the matter under Malaysian Evidence Act 1950 and decided case.

ISSUE:Whether Arbas can

seek a declaration from the court to

presume his uncle Salman to be dead under Malaysian

Evidence Act 1950?

RELEVANT PROVISIONS: Section 4 of Evidence Act 1950 It laid down three types of presumptions:

1. Presumption of Fact2. Rebuttable Presumption3. Irrebuttable Presumption

Section 108 of Evidence Act 1950 provides that, the Burden of proving that person is alive but has not been heard of:

“When the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it”.

RELATED CASES: Re A Penhas (Deceased) [1947] MLJ 78

Detailed out the requirement to 4 conditions:

1. The person must not be heard not less than 7 years.

2. The absence of such person was not explained by the absentee.

3. No person has been contacted by that person4. There has been a search for the absentee but

turned out to be futile

CONTINUED… Re Gun Soon Thin [1997] 2 MLJ 351 The applicant sought a declaration that his father (Gan Teck Heow),

who had not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, be presumed dead.

There was affidavit evidence that when the Japanese invaded Malaya in 1942, Gan Teck Heow was nabbed by the Japanese soldiers. Efforts to trace Gan Teck Heow, though mounted extensively, proved futile.

Evidence showed that Gan Teck Heow had never contacted his family members since the Japanese soldiers took him away.

The issue before the court was whether, on the facts of the case, Gan Teck Heow ought to be presumed dead.

Based on the facts of the case and the affidavit evidence, the court held that Gan Teck Heow be presumed dead. Further, the court could take judicial notice of the fact that the Japanese occupation had taken the death toll on the higher scale.

CONTINUED… Doe d'France v. Andrews (1850) 15 QBD

756

There is no definite rule as to who are the persons who would naturally have heard of him, if alive. Generally speaking, they are his close relatives or neighbours.

Ganesh Bux Singh v. Mohammad AIR 1944 Oudh 266

Where the question is whether a married woman is dead or alive, her husband, if alive, would be the proper person who would naturally hear of her if she were alive (see).

LIMITATION TO THE PRESUMPTION OF DEATH

INTENTIONALLY ABSONDED

If the missing person intentionally run away or leave his family, he cannot be presumed to be dead under Section 108 of Evidence Act 1950.

The case of R Muthu Thambi v K Janagi [1955] MLJ 47:

The respondent had married a man in 1929. After two years the husband absconded to India.

There had been no news from him since then. In 1940 respondent went through a ceremony of marriage with appellant.

Later on they divorced and she file a suit for maintenance. The appellant said he is not bound to pay the maintenance because it is

not a valid marriage since the respondent is still married to her first husband.

The respondent partly argued that there was a presumption of death. It was however rejected by the court since in this case, the defendant

tried to argued on the specific time of death and the fact that the first husband had absconded to India.

Thus, it was held that, the presumption cannot apply.

MANA MAU LARI HA?

DETERMINATION AS TO THE EXACT TIME OF DEATH The presumption of death cannot be extended to

cover as to determines the time of death of the one being presumed.

In the case of Re Othman Bin Bachit [1997] 4 MLJ 445:

If it is sought to establish the precise period at which a person died, then it must be done so by actual evidence like the proof of any other facts.

This case actually can be supported by one foreign case of Lal Chand Marwawi v Mahani Ramrup Gir 42 TLR 159 :

In this case, it is unclear as to whether the deceased is dead either in 1902 or 1904 but what can be presumed is that during the commencement of this suits, which is in 1916, he is already dead.

The case of Re Phene’s Trusts (1870) 5 CH App 139 states clearly as to the function of Section 108 which is to determines whether the subject is still alive or not during the current time.

CONCLUSION… Applying the above said conditions, it is

submitted that Salman may be presumed dead if we rely on Section 108 of Evidence Act 1950 only.

This is because, the condition under the above section were only that:

1. He was not heard by those who would have naturally heard from him

2. The period has been more than 7 years already.

But, if we follow the conditions laid down in the case of Re A Penhas (Deceased) [1947] MLJ 78, there are two requirements which Arbas failed to fulfilled…

Not less than 7 years

Nobody has been contacted by him

Absent constantly without explanationSearch effort must be done but futile

FULFILLED

FULFILLED

NOT FULFILLEDThe fact is silent whether Arbas has conducted a search party to find Salman

NOT FULFILLEDSalman’s absence was known to Arbas as he was studying in Cairo.

Similarly in the case of Re Gun Soon Thin [1997] 2 MLJ 351, the judge in this case also take into consideration that the person that wish the court to declare his missing relative to be presumed dead must have searched for the missing relative first.

Therefore it is opined that if the court only relies on Section 108 of Evidence Act 1950, Arbas can seek a declaration from the court to presume his uncle Salman to be dead.

But, on the other hand, if the court take into consideration the requirements laid down in Re A Penhas and Re Gun Soon Thin’s case, then it is submitted that Arbas cannot seek a declaration from the court to presume his uncle Salman to be dead

POINTS TO PONDER