Assalamualaikum & a very

good evening. We wish all

of you the best of health.
Welcome to Evidence 2
(LAW 4111) tutorial class.
 EVIDENCE 2;
TUTORIAL
PRESENTATION
Dol Bin Borgiba
0512721

Eddin Shazli Bin Ab Rahim

0512107
 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 Fact
2. Rebuttable Presumption
3. 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 person

4. 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
 MANA MAU
LARI HA?
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.
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 Absent NOT FULFILLED

than 7 FULFILLED constantly Salman’s absence
years without was known to Arbas
explanatio as he was studying in
Nobody n Cairo.
has FULFILLED Search NOT FULFILLED
been effort The fact is silent
contacte must be whether Arbas has
d by him done but conducted a search
futile party to find Salman
 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