NEMO DAT QUOD NON HABET

wow!!!!! oh no, am i speaking latin now!!!! lol don't freak out..... let me get you to the same page with me..... Cheers

Each time a conflict involving property arise, the first thing that has to be established is the ownership of the property in question and this is where those big heading words comes in, don't worry you'll get to know what they say soon, but for now be patient, atleast you know its something in relation to ownership.

Lets look at an interesting example:

A thief steals my bicycle, three days later he is arrested , hurray my bicyclee is back.....lalala lallalallaaaaahhhhhh.....ohhhhh wait a minute, unbelievable, oh no my bicycle is not there.......sob..sob...sob. unfortunately its too late he has sold it to an identified third party.

so here we are, can i get my bicycle back???????????

Yeah, here we goooo, back to those big words, and thanks to them or else i was never gonna get back what rightly belong to me. nemo dat quot non habet simply means nobody can give a better title than what he has himself. Happy now that we are speaking the same language, i hope so!!!!

So basically the thief was in possession of my bicycle, and that does not take the ownership from me, therefore my bicycle get back to me because he does not have the right to give something that does not belong to him. unfortunately for the buyer, his fate will depend on his innocence as to whether he knew how the property was obtained.

This rule is adopted in the old English SOGA 1957 section 27, a very popular case which is normally used in rulings of nemo dat rule is the case Jerome Vs Bentley & Co [1952]. The Jerome entrusted a stranger, Major Trentham, with a diamond ring to sell for ú550. 12 days later he sold the ring for ú175 to Bentley who bought in good faith thinking he was the owner. The court held that the Major effectively became a thief of the ring and that no property passed to the defendant.

TIP FOR THE DAY: SAVE THE EARTH, GO GREEN!!!!!

GOVERNMENT TAX REVENUE

Tax is the main contributor to each government's revenue, followed by other sectors such as tourism, exports etc

below is a look at the Malaysia government total revenues for the years 2005-2009, it can be clearly seen that taxes, more especially direct contributed higher percentage of the total revenue throughout the years.

Have a look at the 2 graph below, they are an addition to the above, showing the malaysia tax structure over 19 years as well as the federal government revenue since 1985. We can see that generally the total revenue has been increasing ever since, which is explained by the increase in taxes both direct and indirect over the years. so there is a positive relationship between tax earning and total federal government earnings

TAX EVASION- WHY IN MALAYSIA

Tax evasion is defined as an illegal act of deliberately not paying due taxes or paying less amount than one is supposed to pay. As i mentioned before evading tax is punishable by law.

The purpose of this post is not to narrate on this act but i just have been puzzled by people who commit this offence in Malaysia, i mean seriously, with the number of reliefs the Malaysian government put in place as incentives to encourage people to pay tax, i really do not see why anyone would try to evade taxation in Malaysia. There are so many personal reliefs such as books, spouse, child relief, personal computer and EPF contribution. With all this as a neutral person you would at times think the Malaysian government really doesnt wanna tax its citizen but because its the major contributor to its revenue they are left with no choice but to do it.

SEE FULL LIST OF THE RELIEFS HERE

If i was a tax payer i would really feel ashamed of myself if for once i found myself caught up with the law because i evaded tax given the incentives put before me by the government. Not only are there reliefs for taxpayers, they locals taxpayers are entitled to a few rebates and are also charged on progressive rates, which means the higher you earn the more you pay. And with all this at no way i would try to run away from paying tax. One other thing to note is how the government has not only come up with incentives to lower chargeable income but they have developed method through which people can pay tax conviniently without going through long processess.

Tax payers should look deeper than enriching the government when they pay taxes, they should know its the tax they pay that gives them developments and infrastructure the need. they should think of it as building their nation for the betterment of their future offsprings and their generations. With this i wish to say i hope Malaysia government can tighten up and bring all perpetrators of this law to book they is just no single excuse i can think of as to why the do this, unless of cos if they are not citizens, that will be a bit understandable but again no form of tax evasion is acceptable no matter how unfavourable the conditions are.

WHEN INSURANCE FAIL TO PAY

Three interesting cases I came across which i thought are worth sharing, where the car owner left the keys in the car, resulting in the car being stolen. All the cases were brought before justice and rulings we all in favor of the insurance company.

ENJOY AND HOPEFULLY YOU BECOME MORE CAREFUL NEXT TIME WITH YOUR CAR OR WHEN YOU BUY YOUR INSURANCE COVERAGE.

CASE 1

Miss L’s car was stolen from the driveway of her home while she was inside the house. She neither saw nor heard the theft. When she put in a claim to the firm, it asked her to send it her car keys. However, she was only able to produce the spare ignition key.

Taking this as evidence that the key had been in (or on) the car when it was stolen, the firm rejected Miss L’s claim. It said that by failing to ‘exercise reasonable care in safeguarding her car’ she had breached a general condition of her policy.

Miss L objected to this. She said that the key had definitely not been in the car when it was stolen. She had lost the key a month earlier and had been using the spare. She was adamant that she had not been ‘careless’, as the firm had suggested. After the firm rejected her complaint, she came to us.

The jury agreed with Miss L that she had not been ‘reckless because someone is reckless if they recognise a risk, but deliberately ‘court’ it. Miss L had not done this, so the firm was wrong to say that she had breached the ‘reasonable care’ condition.

However, the firm’s policy also contained a specific (and very comprehensive) clause that excluded claims for cars stolen when the keys were left in them. The firm had specifically highlighted this clause when it sold Miss L the policy. And as we were not satisfied with Miss L’s explanation that she had lost the original car key, we concluded on balance that it was likely that she had left the key in, or on, the car.

We were satisfied that the circumstances of this theft did fall within the scope of that exclusion. She could be said to have ‘left’ the keys in the car because she had gone into the house, and was too far from the car to be able to prevent it being stolen. In addition, the fact that the car was parked so close to the road meant it was relatively vulnerable to an opportunistic thief. We therefore rejected the complaint.

CASE 2

Mr A parked his car opposite a letterbox and jumped out to post a letter, leaving the key in the ignition. While he was crossing the road to reach the letterbox, someone stole his car.

Mr A was horrified when the firm rejected his subsequent claim on the grounds of its ‘keys in car’ exclusion clause. He said that the firm had never told him the policy included such a clause and, eventually, he complained to us.

By turning his back on the car and walking away from it, Mr A had fallen foul of the ‘keys in car’ clause in the policy. In legal terms, he had left the car ‘unattended’ – in other words he was not close enough to the car to make prevention of the theft likely, as established in Starfire Diamond Rings Ltd v Angel, (reported in 1962 in Volume 3 of the Lloyd’s Law Reports, page 217); and in Hayward v Norwich Union Insurance Ltd, (reported in 2001 in the Road Traffic Reports, page 530).

Mr A accepted that he had left the car unattended. But he claimed that none of the policy documents that the firm had sent him (such as the policy schedule and certificate) referred to the ‘keys in car’ exclusion. The firm had set out the exclusion in the policy booklet but had done nothing to draw Mr A’s attention to it when it sold him the policy, as it should have done in accordance with industry guidelines. We therefore felt it was fair and reasonable to assume that Mr A had been prejudiced by the firm’s failure to highlight the clause. If the firm had clearly referred to the clause on the policy certificate or schedule, Mr A might well have acted differently.

And we were satisfied that Mr A had not acted ‘recklessly’. Applying the test of ‘recklessness’ as set out in Sofi v Prudential Assurance (1993) – he had not even recognised that there was a risk, let alone deliberately courted it. We therefore required the firm to pay Mr A’s claim.

CASE 3

Mr H drove to the council-run tip to get rid of an old carpet. While he was disposing of the carpet, someone stole his car. He had left the keys in the ignition and, although he hadn’t walked far from the car, he did not hear or see anything suspicious. He only realised that his car was gone when he turned back towards where he had left it. The firm turned down Mr H’s claim because he had left his keys in the car. When it rejected his complaint about this, Mr H came to us.

The firm's decision not to pay the claim was based on CCTV footage that it obtained from the council. This showed Mr H walking away from his car with the carpet. It also appeared that he had left the car’s engine running.

We agreed that the firm had been correct in turning down the claim on the grounds of its ‘keys in car’ exclusion. Mr H had turned his back on the car after leaving it in a public place and he was completely oblivious to the theft until after it had happened. He had walked a fair way from his car, so he was unlikely to have been able to prevent the theft.

In this instance, Mr H had no excuse for not being aware of the policy exclusion. The firm had highlighted it very clearly on the policy certificate, a document that every motorist is required to have by law. We therefore rejected his complaint.

All case obtained from here

Were all the above decisions right - its a huge question mark. while in the last two cases it is clear that the was some form of ignorance by the plantiffs to the said clause, the first case is the one that raise eyebrows.... did the jury prove beyond reasonable doubt that the original keys were left in the car, i wouldn't say so because their conclusion was based more on logic than a thorough investigation. As such i feel Miss L did not get a fair trial, and by this decision i feel the jury had open doors to similiar cases where now even in genuine cases of lost keys insurance companies may end up not paying innocent victims their deserved compensation or claims.

INSURABLE INTEREST

Insurable interest is one of the basic requirements for all types of insurance coverage. According to the Malaysia law, this principle is defined in the insurance act(Act 553) part 7, section 152. Since the basic principle of insurance is to compensate the insured from any loss, insurable interest is used to nullify claims by people are not affected by certain losses. trying to make a claim in something that does not affect you can lead to moral hazard. a very popular case in relation to this is the blue eyed six case

In the late 1800's, in Lebanon County, Pennsylvania, there was an old man who looked like he was going to die very soon. So 6 men, who were unrelated to the old man and had no financial stake in his death, decided to make money by taking out life insurance on him, which they could do at that time. But the old man lived a lot longer that they expected—and the premiums were expensive. So they decided to murder him to collect the life insurance sooner

the case above is a clear indication of why we need insurable interest, it is clear that these men wanted to profit from the insurance coverage. They did not in any way have insurable interest but rather were motivated by their selfishness and greediness. The men were arrested and all of them sentenced to death for this barbaric act. As hence it is for scenarios like these that we need to have insurable interest.

A person has an "insurable interest" in something when loss or damage to it would cause that person to suffer a financial loss or certain other kinds of losses.

For example, if the ploughing land you own is damaged by storm, the value of your land has been reduced, and whether you re-plough it, its value have been lowered because the crops in it have been destroyed, if the crops grew with no damage you would have reaped the benefits sooner rather than later as hence you have suffered loss from the storm. By contrast, if the same happen to your neighbor's land, which you do not own you may feel sympathy for them and you may be emotionally upset, but you have not suffered any loss due to the storm, therefore you have an insurable interest in your own land, but not in you neighbors'.

For purposes of life insurance, everyone is considered to have an insurable interest in their own lives as well as the lives of their spouses and dependents and the insurable interest only needs to exist at the time the policy is purchased.. For property and casualty insurance, the insurable interest must exist both at the time the insurance is purchased and at the time a loss occurs.

FILE SHARING THROUGH PEER TO PEER NETWORKS

With the growth of technology and the world wide web, we have seen the emergence of so many P2P file sharing networks, with some individuals developing softwares and providing necessary equipments such as serves to promote this file sharing system. some of these sharing networks include Ares, BitTorrent, UTorrent, Transmission, Tomato, LimeWire and many others.

Having said that when does file sharing amount to copyright infringement, and who is to blame for if at all there is copyright violation associated with them. there are three parties involved here, the server-program provider, the uploader and the downloader? where do you fall?

Server-program developer - file sharing is not in anyway wrong, and providing facilities for such cannot be wrong as well. if there is anything it has more good to it, allowing hundreds of people to connect together and share a wealth of information, be it music video or publications. Many of these developers, do distance themselves from any materials put in their servers by putting a clause in the terms and conditions of usage, as well as normally writing few warnings in relation to copyright, yet they do little to monitor the contents. In simple they due to that clause they can not be held liable for any copyright information in their servers unless if it is proven that they deliberately allowed copyrighted materials in their servers.

Users - we have two sets of users here, the uploaders and the downloaders, uploaders put materials which they think or believe its worth sharing with others on these networks, while some of these materials are copyrighted others are not. Now here come a question-does uploading a copyrighted material which you obtained legitimately violation of copyright, in my view i think no. While normally buying these copyrighted CD'S, books, you agree to be bound by their terms and conditions of usage, that also becomes your property, why should it not be wrong to borrow someone a book you bought but wrong to put it in a file sharing network so they can see it without the trouble of coming to you house to collect it. isn't this some form of inconsistency. In short uploaders as well shall not be held liable for any form of sharing.

Downloaders- these are the people who use uploaded materials, and straight away i feel they are the ones who are to blame for copyright violation, downloaders put the materials there out of goodwill, so these group of people should just use is as per their needs and stop there rather than keep the file in their computers and redistributing them. A downloaded copyrighted material will never be your property as such how you use it should be limited, in short it is basically for you to view, nothing more.

In conclusion, while its difficult for me to condemn file sharing as i have benefited from it, i cannot ignore the great effects of it in crippling so many business, it is unfortunate scenario because as much as it has lead to the collapse of many business units and affected earning of upcoming stars, who end up giving up, i also think it is not wrong to share these copyrighted or so proclaimed intellectual materials because if allowed freely i see more harm than good towards society. Overall i am indifferent between this copyright and file sharing

CENSORSHIP

At a time when google is threatening to pull out of China on issues related to internet censorship, I thought it might be good to lay down my view on this hot topic. Want read more on the story you can simply google it, there are so many reports given which do vary on the facts sorrounding the threat but here is a link to one of the news reports on the issue, CLICK HERE TO READ

Malaysia has different acts which are aimed at censoring information as it is passed to the community or society, among them are

• FILM CENSORSHIP ACT 1952
• MCMC ( Malaysia Communication and Multimedia Act) 1992-regulates blog contents/website contents
• PPPA(Printing Pressess and Publication Act) - mainly for newspapers

While censorship might seem a good thing in the eyes of the initiators, there has been many cotroversies sorrounding this issue as most ordinary citizens feel

s it violates freedom of speech and expression, and most importantly denies them access to knowledge and wisdom.

The picture on the right says it all on why people feel they way they feel about censorship, because its sensored we will never know the truth.

and that exactly how i feel too about sensorship, isn't it time people are let to know everything and think for themselves, why should they allow us to hear and see what they want, and bury what they dont want.

do they doubt are decision making capabilities? why should a group of less than hundred or so people represents the mind of majority. Its too bad because i have more question than answers on censorship, is it wrong or good!!!!! totally wrong, in my personal capacity no form of sensorship is good no matter how tormenting or revealing the material is, as human being we must be let to use our senses and choose what we think is good and bad for us, God gave us our sense to use and no man has the right to undermine them, the best that can be done is guide and teach people to deal and accept that some things will always be with us no matter what, one way or the other the truth will always come out.

lets take for instance, you buy a movie ticket, catch the movie at the cinema, where most of the scenes has been cut because the are deemed sensitive, but then you come home, curious to know what the cut scenes were about, you go online, download the movie and at the end of the day you have uncovered the never meant to know.

so basically with these diverse world, where rules can apply in one scenario but be difficult in enforce in another, or where what is deemed sensitive in one country is not in another, censorship laws have become totally irrelevant and should maybe be abolished.

CHECK THIS VIDEO BELOW

CONFLICT OF INTEREST (COMMENT)

This is a comment on articles by blogger Amunixn

Case 1: Botswana Minister of Defence

While i definitely agree with you that to some extend logically and from a fair minded person there is clear conflict of interest, its unfortunate that our beloved country does not have a law on declaration of assets for people who holds such important position such as this particular case. As such conflict of interest have been left to company constitution, but when it comes to public assets it is going to always be difficult for us to put a line as to when really does an action amount to conflict of interest.

The laws of Botswana entitles any citizen or business who has capabilities to apply for government tenders, and just because a company belonging to his wife won the contracts does not mean this amounts to conflict of interest, unless only if we have solid prove that those tenders were awarded not on merits, which is difficult to prove. So this raises a question as to whether we are saying a relative cannot get a contract from the ministry you are holding because in public view it will amount to conflict of interest, i bet no because that will be denying them their entitlements as citizens or business operating in Botswana.

Seretse himself has come out and threatened to sue, on the basis of defamation of character, like you mentioned he does not see anything wrong with the linkage between his duty as a minister and awarding contracts to a company in which he was once a director.

NB: Those said contracts were awarded while he was a director, and as a company director, he needs to act in the best interest of the company. here is one interesting blog post on duties of company directors in Malaysia, take your time to read through( http://readinglaw.wordpress.com/category/company-law/), but at that time he was also a Minister of Defence meaning he had to act in the best interest of the public........... and this is where the conflict of interest lies

In his augment he says that he has long resigned from his position as the director of the company few months after he assumed office as the said Minister. This on its own takes the pressure of him because he is not directly in anyway related to the company but rather indirectly related through his wife. So this becomes a tricky scenario.

So to establishing whether conflict of interest does exist in this case a complicated issue, more also that awrding a contract is procedural and passes through many stages before being approved, the minister himself propably just signs after the analysis and recomendations by his surbodinates

COMPANY LAW (CASE COMMENT)

Macaura v Northern Assurance 1925 - lifting the veil of incorporation:

CASE BRIEF:Mr. Macaura owned an estate and some timber. He agreed to sell all the timber on the estate in return for the entire issued share capital of Irish Canadian Saw Mills Ltd. The timber, which amounted to almost the entire assets of the company, was then stored on the estate. On 6th February 1922 Macaura insured the timber in his own name. Two weeks later a fire destroyed all the timber on the estate. Mr. Macaura tried to claim under the insurance.

The Insurance Company refused to pay arguing that he had no insurable interest in the timber as the timer belonged to the company. In 1925 the issue arrived before the House of Lords who found that the timber belonged to the company and not to Mr. Macaura. Even though he owned all the shares in the company, Mr. Macaura had no insurable interest in the property of it.

In this case was the court decision justified?

Here is my view: While this case is normally referred to as a clear illustration of lifting the veil of ownership and corporate as a legal separate entity, it is somehow unfair to have dismissed Macura's claims based on these stand.

Macaura insured the timber as a personal property, at that time he owned it and never did he transfer its ownership, all that happened was value it in terms of shares and allow a company to use it, thereby making it his property, he had a limited liability as to the value of those shares/timber value as hence there was insuarable risk to him in the sense that anything that happened to the timber meant he was bound to lose, or his share value was going to decline, and it was this that the insurance company was bound to compensate him for.

It is for this that i think the court should have ruled in favour of Mr Macaura or atlist based on the facts of the case and some flaws which happened, with Mr Macaura failing to change the insurance to that of the company, they should have awarded him part of the damages.

COMPANY LAW (SUBSDIARY COMPANY)

A subsidiary is a company in which majority of its voting stock is owned by a holding company.

Normally this holding company is referred to as a parent company. For a company to consider itself as a parent company to another its should hold atleast 50% of its voting stocks

A company may have more than one voting stock subscribers but can only have one parent company

Example:

Company A has the following owners each with a number of voting right as listed

Company B-10%

Company C-35%

Company D-55%

So in this case the parent company for Company A is company D

But what about in a scenario whereby none of the holding companies owns more than 50% of the voting rights, who is considered the parent company??????

Example

Company ABC has the following owners each with a number of voting right as listed

Company BDE-40%

Company CEF-35%

Comapny DGM-25%

In this scenario although Company BDE holds majority of the voting right, it cannot consider itself a parent company, unless if it obtains more voting rights from the other two stockholders.

PETRONAS, a well known and one of the largest fuel supplier in Malaysia boast a handful of companies in which it owns more than 50% of the stake( figure estimates says more than 100). SEE Petronas SUBSIDIES