Functions of Law

There are a few functions of law such as:

1. hearing grievances and providing remedies
2. awarding penalties
3. ordering conferment of public benefits by the government
4. facilitating and effectuating arrangements which are private
5. recognizing and ordering private ownership
6. protecting private life and reinforcement of family ties
7. promoting human health by by providing a healthy enviroment
8. maintaining the peace of community
9. protecting basic freedoms and liberties
10. securing equality of opportunity
11. regulating administrative action and
12. exercising surveillance and control over persons and power.

source : RS Summers, Law its Nature, Functions & Limits

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Treaties

What is treaties? If we look into the provisional draft of the International Law Commission, a "treaty" is defined as :
"any international agreement in written form, whether embodied in a single instrument or in 2 or more related instrument & whatever its particular designation (treaty, convention, protocol, covenant, charter, statute, act, declaration, concordat, exchange of notes, agreed minute, memorandum of agreement, modus vivendi or any other appellation), conclude between 2 or more states or other subjects of international law & governed by international law".

Besides,  Article 2 (1)(a) of Vienna Convention defines a treaty as " an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation".

Elements of Treaties.

(1) Form
The manner in which treaties are negotiated and brought into force is governed by the intention and consent of the parties. There's no specific requirements of form, for instance, an agreement may be recorded in an exchange of letters or the minutes of the conference.The Vienna Convention applies only to agreements in written form but Article 3 stipulates that this limitation is without prejudice to the legal force of agreements 'not in written form'
(2) Full powers & signature
A Full powers involves an authority to negotiate & to sign & seal a treaty. If the negotiation is successful, the parties may adopt & authenticate the agreements. From the authentication comes the signature. Signature is subject to ratification, acceptance, or approval but signature does not established consent to be bound. However, signature qualifies the signatory state to proceed to ratification, acceptance or approval & creates an obligation of good faith to refrain from acts calculated frustrated the objects of the treaty.
(3) Ratification
Ratification involves two distinct procedural acts which are ratification in constitutional sense  & the second is the international procedure which brings a treaty into force by a formal exchange or eposit of instrument of ratification.Ratification needed the consent to be bound. In the Article 14 of the Vienna Convention, its provided that the parties must have intention to be bound.
(4) Accession, acceptance & approval
Accession, acceptance & approval occurs when a state which did not sign a treaty, already signed by other states, formally accepts its provisions. Accession may occur before or after the treaty has entered into force. The conditions under which accession may occur & the procedure involved depend on the provisions of the treaty. Recent practice has introduced the terms 'acceptance' & 'approval' to describe the substance of accession.
(5) Expression of consent to be bound.
Other ways of consent is an expression to be bound such as an exchange of instruments constituting a treaty. Signature, ratification, acceptance & approval are not the only means by which consent to be bound may be expressed.

In conclusion, a ratification of the treaties will bound the states that give their consent & intention to be bound.

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Bona fide purchaser principle

When the concept of the trust was being developed by equity, one of the problems that had to be addressed was what the rights of the beneficiary were if the trustee transferred trust property to a third party in breach of trust. The solution that equity imposed is not surprising when it is recalled that the courts proceeded on the basis of principles of conscience. If the trustee transferred the trust property to a purchaser who was acting in good faith, who gave value for the property and who had no notice of the equitable interests existing in the property, equity saw no reason why the purchaser should be treated as having acted with unconscionable conduct and so there was no reason why equity should allow the claim of the beneficiary to prevail. It can be said that the claims of the beneficiary and of the third party are equally valid and that in such a case the equitable maxim ‘where there is equal equity, the law prevails’ is applicable to protect the third party. In other words, the purchaser’s legal estate is allowed to prevail over the equitable interest of the beneficiary.An example of the bona fide purchaser rule in action is to be found in MCC Proceeds Inc v Lehman Brothers International (Europe) [1998] 4 All ER 675. Macmillan Incorporated (M) was a company taken over and controlled by Robert Maxwell and members of his family. The company placed shares in Berlitz International Inc, a wholly owned subsidiary, together with the share certificates in the name of Bishopsgate Investment Trust plc (a nominee company controlled by Robert Maxwell). An agreement declared that Bishopsgate held the legal title to the shares as nominees for M, who retained the beneficial ownership in the shares. The agreement stated that Bishopsgate Investment Trust plc would immediately transfer the shares to M on M’s written demand. Bishopsgate then, in breach of trust, pledged the certificates with the defendants as collateral under a stock-lending scheme. M knew nothing of this. The defendants were unaware of the interest of M. The shares were later sold by the defendants. The Court of Appeal said that, as the defendants were bona fide purchasers of the legal interest in the shares and had no notice of the claim of M or of the breach of trust by Bishopsgate, the interest of M was overreached and the defendants took free of any interest of M.

The bona fide principle is obviously important but it is limited. It does not apply if the trust property is acquired by a volunteer or by a purchaser of an interest other than the legal interest. In this context the consideration provided can either be money or money’s worth or marriage consideration, which is recognised by equity, but not the common law, as being consideration. In these cases the claim of the beneficiary prevails and he is able to assert his rights against the third party. These situations are resolved by applying the maxim ‘when the equities are equal the first in time prevails’.The bona fide principle only applies if the purchaser has no notice of the equitable interests. Notice can include actual and constructive notice. A person has constructive notice of matters of which he would have known had he made those inquiries which a reasonable man would have made. A purchaser will also be fixed with notice of facts known to his agents (e.g. his solicitor). This is called imputed notice.

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Maxim: Where the equities are equal, the law prevails

The related maxim is concerned with priorities of competing interests, that is to say which of various interests prevails in the events of a conflict, may be dealt with together. To understand this maxim, a distinction and understanding of the concept of “legal interest or estate” and “equitable interest” is necessary.
A legal interest or estate is an interest in the property required by a purchaser for valuable consideration either by cash or marriage consideration. It also includes mortgagee and lessee.


An equitable interest is any interest which recognised from the Chancery court. An example would be in the case of trust; although the trustee’s name would be registered as the holder of the property, the beneficiaries acquire an equitable interest over the trustee’s property. They have a right to sue the trustee for breach of trust.

Under general rule, the interest takes effect in order of their creation. For instance, whose rights are created first will receive priority in the court of equity. However, an equitable interest might be defeated by a legal interest, even though it has been created prior to the legal interest. For example, if the purchaser of a legal interest is bona fide and without notice of any equitable interest, then the equities are equal and legal interest prevails.

In the case of Langan v Lee Cheng Keat, the lands situated in Penang were held on trust as marriage settlement. However, the trust was never registered and the tittle deeds remained in the name of the owner. On the death of the owner, his administratix sold and conveyed the land to the Defendant and delivered to him the title deeds but without referring to the trust accidentally came across the marriage settlement. They filed a suit for possession of the property from the defendant.
The court held that defendant was in possession of the land and the title deeds as a bona fide purchaser without notice of trust. His equity should prevail over that of beneficiary.

In the case of Cave v Cave, the legal mortgage created without notice of the prior beneficial interest, applying the maxim above, the court held that the legal mortgage took priority over the equitable interest having been created bona fide for value without notice.


Others material

When two parties want the same thing and the court cannot in good conscience say that one has a better right to the item than the other, the court will leave it where it is. For example, a company that had been collecting sales tax and turning it over to the state government found that it had overtaxed and overpaid by 2 percent. It applied for a refund, but the state refused. The court upheld the state on the ground that the money really belonged to the customers of the company. Since the company had no better right to the money than the state, the court left the money with the state.

Where equities are equal , the first in time shall prevail – In the absence of a legal estate in the matter and the contest is among the equitable estate only, the rule is that the person whose equity attached to the property first will be entitled to priority over other or others e.g., if A enters into a contract for the sale of his house with B and then with C, the interest of B and C both being equitable, B will have priority over C because his attached to the property first.

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Licensees

This category types of entrants in occupiers liability refers to a person who enters the premises with the occupiers gratuitous permission, be it express or implied. Usually, the occupier does not have any interest in the presence of licensee on his premises, unlike a contractual entrant & an invitee. There are 3 types of licensees:
(i) entrant as of right
(ii) social visitors
(iii) an entrant by implied permission

Entrant as of right means those have the right to enter into premises that are open to the public such as public park, public lavatory, public library & any other building open to the public. Actual knowledge of the occupier as to the existence of danger is not necessary & the licensee visitor cannot assume that the premises will be free from visible dangers. The occupier must however, take reasonable steps in the circumstances to avoid damage from occurring, especially if the danger is obvious.
case: Aiken v Kinborough Corporation

Social visitors is one who enters into private premises with the permission of the occupier or by invitation. His purpose for being on the premises is social in nature & does not confer any materialistic or economic advantage to the occupier. In the case Yeap Cheng Hock v Kajima-Taisei Joint Venture, P, who was a geologist, was injured during a visit to a mine, the visit being for his own purpose. Syed Agil Barakbah J stated that at Common Law, a licensee is a person who enters premises with the consent of the occupier based on the occupier gratuitous permission & not for any business purposes. The P in this case was held to be a licensee & not an invitee. The D was found liable as the cause of the injury, which was a projection of rock in a tunnel, was a concealed danger & was known or ought to have been known by the D.

case: Datuk Bandar Dewan Bandaraya v Ong Kok Peng & Anor.

Besides, entrant by implied permission is for those who enters the premises without any express restriction by the occupier. The court applies the doctrine of allurement in this category such as a child entering a piece of land due to some attraction on the land, or someone who is not prevented to use the occupier's land in order to get to the other side of the land.

Children Licensees.
If the licensee is a child, the duty on the occupier is higher as a child cannot be expected to be aware of dangers that may be obvious to adults. In the case Phipps v Rochester Corporation, 2 children entered into D's area to pluck some fruits. The fell & injured themselves. The danger was visible to adults but not to children. The children were held to be licensees.
If the parents/guardian have exercised reasonable care for the safety of their child, it falls on the shoulders of the occupier to show that he has taken all reasonable precautions in the circumstances. In the case Kalaichelvi v Kinkara Group Estates Ltd, a 3 years old girl standing near the front door of her house was hit by the object which flew from the blade of a grass-cutting tractor nearby. The court held that the licensor occupier must act with the reasonable diligence to prevent his premises from misleading or entrapping licensee. due to the girl's age, she could not have known the danger. Consequently the machine should not have been operated so close to children without any precautions to prevent foreseeable injury.

Trespasser.
Trespasser is for those who enters premises without any express or implied permission of the occupier. His existence on the premises may not be known to the occupier. Examples: Wondering child, thief, person who has lost his way & ors.
In case of Robert Addie & Sons v Dumbreck, the court stated that in general, an occupier does not owe a duty to a trespasser as he had entered without permission & is therefore assumed to have accepted all risk & any danger there might be on the property.

other case: British Railways Board v Harrington

End..:>

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Public International Law (introduction)

Public international law is a law, including the legal rights, duties, and powers, governing the behavior of sovereign states to each others . One of the most challenging and important questions concerning public international law is one that has been continually raised, but not so far conclusively answer to general satisfaction, does public international law actually exist? If it is really exist, then what is the proof or there is any sources described about public international law?

The sources of public international law are described in Article 38 of the Statute of the International Court of Justice as follows:

Article 38. 1. The court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

(a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting States
(b) International custom, as evidence of a general practice accepted as law
(c) The general principals of law recognized by civilized nations
(d) Subject to the provision of Article 59, (which states, ‘The decision of the court has no binding force except between the parties and in respect of the particular case’), judicial decision of the various nations, as subsidiary means for the determination of rules of law.

In Oxford Dictionary of Law 6th Edition, United Nation (UN) means, an International Organization, based in New York and Geneva, set up by the United Nations Charter in 1945 to replace the League of Nations. The main aims of the UN are, to maintain international peace and security and to bring about settlement of international disputes by peaceful means and also to develop friendly relations among nations. Moreover, the aim of the UN is to archive international cooperation in solving international problems of an economic or cultural nature and in promoting respect for human rights.
General assembly is one of the systems under United Nations system. The General Assembly is the only principle organ which is composed of all the members of the United Nations under Article 9 of the Charter of the United Nations.
According to Article 10, ‘The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters .
Decision in the General Assembly are made by a two-thirds majority of those present in voting for important question and simple majority for others matters. Important questions are listed in Article 18 (2), but the enumeration is not exhaustive. The vote in the General Assembly can be by ‘acclamation’ or by show of hands or, if demanded, by roll-call; secret ballots are also used in certain cases, notably for elections. In practice, many decisions were taken by ‘consensus’, without formal voting.
The Charter sets out certain fundamental principles, which include the undertaking to refrain from using or threatening forces against the territory or political independence of any state. The Charter established six principal organs, of which the most importance is the General Assembly, The Security Council, The Economic and social Council, and The International Court of Justice. The General Assembly is the debating forum of the UN, consisting of all member states; it can pass resolutions, but this are not legally binding upon member states. The Security Council has five permanent members (China, France, Russia, the UK and the USA), and ten temporary members elected for two year periods. Its resolution are binding on members states, but each permanent member has right to veto a resolution. It is empowered, under certain conditions, to make recommendations and take measures to maintain the peace, including establishment of peacekeeping military forces in sensitive areas.
Declaration can be defined as ‘solemn statement by a government or a group of government, in the UN the term is usually applied to a statement of principle annexed to a resolution . According to Ian Brownlie, the law-making role of organizations is considered further in Chapter 31, section 10. In general these resolutions are not binding on member states, but, when they are concerned with general norms of international law, then acceptance by a majority vote constitutes evidence of the opinions of the governments in the widest forum for the expression of such opinions. Even when they are framed as general principles, resolutions of this kind provide a basis for the progressive development of the law and the speedy consolidation of customary rules. In some cases a resolution may have direct legal effect as an authoritative interpretation and application of the principles of the charter.
In general each individual resolution must be assessed in the light of all the circumstances and also by reference to other evidence of the opinions of states on the point in issue . The concerning by United Nation about pollution had been developing year by year. If in 1992, the UN General Assembly adopted a Declaration Condemning the Pollution of the Oceans by Dumping Waste or Other Means, but in 2003, A new international treaty under which companies will be required to publicly disclose information on their output of pollutants will be adopted and signed at the Fifth Ministerial Conference 'Environment for Europe' in Kiev, Ukraine . This is a good development in United Nation about the prevention of the pollution of the oceans.
Meanwhile, the International Court of Justice is a court at The Hague, consisting of 15 judges elected for 9-year terms of office, that has power to determine disputes relating to Court of International Justice, and all members of the UN are automatically parties to proceedings unless it has accepted its jurisdiction, either by agreement in a particular dispute with another state accepting the general jurisdiction to the Court. The Court may also give advisory opinions, which is not bind the parties but are of great persuasive authority .-:>

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Invitees

Invitees is a person who enters premises with the permission or on the authority of the occupier. There are 2 categories of invitees which are legally authorized entrants & business visitors. Legally authorized entrants are only for those enters the premises on the authority of the law such as policeman, fireman or a meter-readers. In case of Shamsuddin v Yap Teh & Anor, due to emergency & political problems the government requested that use of explosives for blasting operations at a particular quarry to be monitored by the police. One of the policemen who was on duty at that quarry was injured when a splinter from an explosion hit his eye. The court held that the policemen to be an invitee & a duty of care was owed to him so that he would not be injured by a negligent method of detonating the explosives. The D contractor was found liable.

Meanwhile, business visitors are those who enter premises (public or private), for a materialistic reason & who actually bring economic advantages to the occupier, such as a customer at a supermarket, a guest at a hotel, a motorist at a patrol station, a customer at a bank or an employee at his place of work. In the case Indermaur v Dames, the court held that this was an unusual danger which was in fact known to the D & even though the P as an invitee must take reasonable care of his own safety, an occupier must reasonably avoid any damage that could arises from an extraordinary danger that is known to him, or ought to have been known to him. Related case: Takong Tabari v GOS & Ors.

Duty of invitee to another invitee.
A person who, although not an occupier of the premises, creates danger to person who are expected to enter those premises, owes a duty to ensure that the entrants are not injured while on the premises. In the case Ng Shin Hon v Chow Wai Chuang, the P's engineers who was responsible for the inspection of the D's contractor work, suffered injury when he walked into a trench in the ground covered by metal sheets. The court held that the trench was dug without the plaintiff instruction & so he had no knowledge about it. The contractor was under a duty to take reasonable care to prevent damage to person who he may reasonably expected to be affected, whether they be invitees, licensees or other contractors. Thus an occupier, based on the case Indermaur v Dames, he will liable to an invitee who suffers any injury or damage to property if the following factors were established, which are:
(i) if the occupier knows or ought to be known of the danger
(ii) the danger is unusual to that class of P in the sense that the danger is not usually found in carrying out the task, but if the danger is usual, D is not liable based on the case: Lee Lau & Sons Reality Sdn Bhd v Tan Yah & Ors. (forklift case)
(iii) the danger is not known to the P
(iv) the occupier has failed to reasonably avoid the damage from occuring, be it trough notice, warning, lights, guarding or others.-:>

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Occupiers liability : Types of entrants & the standard care required

There are 4 types of entrants which are contractual entrants, invitees, licensee & trespasser. For this post, I'll only discuss about the contractual entrants which are divided into 2 categories, the main purpose entrants & ancillary purpose entrant.
Main purpose entrants is for the person who enters the premises for the purpose of occupying it & who has paid to be on premises such as a tenant or a guest in a hotel.
The occupier duty is to ensure that the premise is safe & adequate for the purpose for which it is contracted out, & the occupier must employ & exercise reasonable steps & expertise in the performance of his duty. In a case of McLenon v Segar, a fire broke out at the D's hotel & the P was injured while he was trying to escape from the second floor of the building. The court found the D liable for failing to ensure that the premises was safe for habitation, as there was no emergency way out.

Meanwhile, ancillary purpose entrants refers to a person who has paid to be on the premises for the primary purpose of some activity other than a personal dwelling such as patron, a passenger on a bus, a patient at a private hospital or a pupil at a private school. The occupier duty is to ensure that the premise are safe for that particular purpose. In case of Hall v Brooklands Auto-Racing Club, some spectators at a car-racing competition were injured when 2 cars collided. The D was held not liable as the court found that they had discharged their duty in ensuring that the stand was free from any danger as far as was reasonable in those circumstances.
Besides, in Gilmore v London County Council, P fall during an exercise class as rhe floor was slippery. She successfully claimed against the D for the latter's failure to ensure that the floor was suitable for physical exercise. Lastly, in Murray v Haringay Arena, the court denied the P claim when he was struck by a hockey puck while watching a hockey game.

to be continue with invitee, licensee & trespasser..:>

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Bare Trust in Malaysia

In Malaysia, the term Bare Trust is used in Land Law to refer to the position when the purchaser has paid the full purchase price but the memorandum of transfer has not been presented for registration. The vendor here is said to hold the land in question as trustee for the purchaser. (Temenggung Securities Ltd v Register of Titles Johor & Ors [1974] 2 MLJ 45 FC ). The vendor becomes a bare trustee fot the purchaser with the beneficial ownership in the land passing to the latter where, under all the circumstances of the case, specific performance of the contract will be granted by the court.

case: Ong Chat Pang v Valiappa Chettiar [1971] 1 MLJ 224 FC.
"... the point at which the vendor becomes constructively a trustee for the purchaser is reached only when he was done all that is necessary to direct himself of the legal estate by executing a valid transfer of the land in favour of the purchaser...a purchaser does not get a title until the vendor has done all that is necessary to perfect the purchaser's title".

There is 4 conditions that the purchaser must fulfill in other to make the vendor as a bare trustee for him:
(1) there is an existence of contract sufficient in form & substances.
(2) the purchaser has carried out N fulfill all obligations under contract.
(3) the vendor must have the title of the land
(4) vendor has no duty to perform other than those of executing the transfer and perfecting the transfer document.-:>

Relate cases:
-Rayner v Preston
-Bachan Singh v Mahinder Kaur & Ors [1956] MLJ 97

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Equitable asignment

For equitable assignment, no particular form is required. Intention is importance. The words must show that the assignee is to have benefit of the chose in action. The assignment must be address to the assignee (Halsbury's Law of England). Once there is a clear intention on the part of assignee that the assignee should get the benefit of the debtor by conveyancing such intention to assignee, an equitable assignment is created. The debtor is liable to pay the assignee although it has already paid to the assignor. (case: Malaysian International Merchant Bankers Bhd v Malaysian Airlines System Bhd).

Notice is not required.
The assignment is validly created as between the assignor & assignee the moment it is made. This is not affected by the fact that no notice had at that point been given to the debtor altough the debtor may only be bound upon receipt of the notice. In the case MIMB Bhd v MAS Bhd, as between the assignor & the assignee, an equitable assignment, whether voluntarily of for value, is absolute & complete without notice been given to the debtor. But, a debtor or a fund holder who has receive notice of an equitable assignment must withhold all further payments to the assignor unless made with the consent of the assignee, for if he pays to the assignor without consent, he will have to pay over again to the assignee. After notice, debtor or fund holder became trustee for the assignee...:>

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Assignment (Statutory assignment)

Assignment is the principal method of transferring the benefits of a contract to a third party. for example: A (the assignor or creditor) transfers the benefit to a third party, C (the assignee), the consequence of which C would be able to sue B (the debtor) being the person liable under the contract. The expression choses in action refers to all personal rights of property but enforceable not by talking physical possession but on by by action.

Assignment under Civil Law Act 1956
Section 4(3) of Civil Law Act provides:
"Any absolute assignment, by writing, under the hand of
the assignor, not purporting to be by way of charge only, of any
debt or other legal chose in action, of which express notice in
writing has been given to the debtor, trustee or other person from
whom the assignor would have been entitled to receive or claim
the debt or chose in action, shall be, and be deemed to have been,
effectual in law, subject to all equities which would have been
entitled to priority over the right of the assignee under the law as
it existed in the State before the date of the coming into force of
this Act, to pass and transfer the legal right to the debt or chose in
action, from the date of the notice, and all legal and other
remedies for the same, and the power to give a good discharge for
the same, without the concurrence of the assignor." For the reference & interpretation of the act, we can refer it in English position in s.136 (1) of the Law of Property Act 1925 which provides:

" Any absolute assignment , by writing, under the hand of the assignor (not purporting to be by the way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice-
(a) the legal right to such debt or thing in action
(b) all legal & other remedies for the same; &
(c) the power to give the good discharge for the same without concurrence of the assignor. "

When the conditions in s 4(3) is fulfill and the parties agreed with the conditions the effects of it is the the assignor would be the holder of legal title to the right assigned & enabling him to sue, without the need to join the assignor as a party.

Case: Cator v Crydon Coral Co
-an assignee may sue in his own name against the debtor
Case: MBF Factors Sdn Bhd v Tay Hing Ju
- Jefrey Tan J explain : " wheres s 4(3) CLA applies, the assignee is allowed to sue the debtor in his own name instead of having to sue in the name of assignor & perhaps having to go to a court to compel his joinder in the action. Thus, the position is the same in England..."

Condition in statutory assignment that must be fulfill:
(1) the assignment must be absolute, it will not absolute if the assignment have the condition (but still can be accept as equitable assignment, but the sue action cannot be taken on the own name)
(2) the assignment must be in writing & signed by the assignor
(3) notice must be given to the debtor from whom the assignor would have been able to claim (assignee must give notice to the debtor)
Case: In Dearle v Hall, the court held that an assignee must give notice to the debtor in order to secure his title against other assignee.
(4) not purporting by the way of charge

END.
To be continue with the equitable assignment...:>

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Negligence: occupiers liability

Occupiers liability concerns the duty of care that those who occupy property owe to people who visit or trespass.It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises.
"premises"- any building or land that owed by the 'D'. The 'D' in this situation have 2 types:
(1) the person actually occupying the premises (his responsibility is generally for personal injuries such as broken ankle sustained when a ratten floorboard gives way)
(2) someone other than the occupier may be liable for defects in the premises.

Case : Wheat v Lacon & Co Ltd (define the occupiers liability)
- Ps owned a public house which Mr R was their manager. Mr R n his wife were allowed by agreement to live in the upper floor, access to which was by a door separate from the licensed premised. An accident was sustained by a paying guest on the stair case leading to the upper floor. It was held that although C was injured in the private area of the premises, Ds ( along Mr R & Mrs R) were liable. They had enough residual control over that part of the premises to be treated as occupiers.
- in this case, its clarifies that there may 2 or more occupiers simultaneously & that exclusive occupation is not required.

Case: AMF International Ltd v Magnet Bowling Ltd
- both a contractor & owner were held to have sufficient control to be joint occupiers of the premises in which the claimant's equipment was damaged by rainwater entering the building via leaking doorway.

Visitor- those person who were invitees & licensees that is anyone whom an occupier gave any invitation or permission to enter or use his premise.
-an occupier is therefore someone who has the immediate supervision & control & the power of of permitting of prohibiting the entry of the persons.

Case: Chang Fah Lin v United Engineers (M) Sdn Bhd
- it was held that if a contractor is shown to have overall charge & control & possession of a construction site, then he may deemed to have occupation as well as possession of the site, together with overall responsibility.

Case: China Insurance Co Ltd v Wah Hup (Pte) Ltd
- Chua J held that the contractor of a construction site was an occupier of the premises.

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Elements established the private nuisance

1. Substantial interference
(i) interference with use,comfort & enjoyment of land
(ii)material or physical damage to land or property
2. Unreasonableness

-Consideration must be look before sued the D :
(a) damage & location of the P's premises
(b) public benefit of the D's activities
(c) extraordinary sensitivity on the part of P
(d) interference must be continuous
(e) temporary interference & isolated incident
(f) malice
For this post. I'll discuss only for the element of substantial interference.

Substantial interference.
there are 2 types of damage or interference :
(i) interference with the use,comfort, & enjoyment of his land
(ii) physical damaged to the land

What constitutes substantial interference & actionable in nuisance, differs according to which of the 2 recognized types of damage or interference the P has suffered.

(a)interference with the use,comfort & enjoyment of land.(amenity nuisance)
- feeling discomfort whereby one is unable to live peacefully & comfortably on one's own land arising from the D's activity.
- a trivial interference does not give rise to nuisance.
In the case of Woon Tan Kan (Deceased) & 7 Ors v Asian Rare Earth, the P (residents of Bukit Merah) alleged that the activities from the factory produced dangerous radioactive gases harmful to the residents of Bukit Merah. The High Court granted a quia timet injunction & held that the tort of private nuisance was established.
Besides, in the case of Dato Dr Hrnam Singh v Renal Link (KL) Sdn Bhd, the P had for 18 years operated a clinic & hospital for the treatment of ear,nose & throat aliments. The D operated a renal clinic which patients receive haemodialysis on the floor above the P's clinic. The D was found liable for emitting from their clinic obnoxious fumes which escaped downwards into the P's clinic.

(b) material of physical damaged to land or property
Case : Darley Main Colliery Co v Mitchell
-the court held that minor subsidence on the P's land was not actionable
A clear example of substantial interference is found in the case of Goh Chat Ngee & Ors v Toh Yan & Anor, the mining activities constituted an unnatural use of land, as water had escaped & flooded the P's land causing it to collapse & sink, subsequently causing flooding,erosion & settlement. The court held that a landowner (with adjacent to P's land) had a Common Law obligation not to interfere with the support structure of his neighbours land, which is provided for under s.44 (1)(b) National Land Code. The D had breached this statutory duty & was also liable in nuisance with the use & enjoyment of his neighbour's land..:>

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