Taylor J:

The facts and arguments appear sufficiently from the judgment.

In this action a Malay woman claimed the custody of a girl twelve years old on the ground of adoption.

The plaintiff and her husband, whose name was Jalil, adopted the infant daughter of Jalil's brother and brought her up from birth to the age of eleven years. The adoptive father died and shortly afterwards the natural father took the child, by force and strategem, away from the adoptive mother. The child thereafter lived, not in her original home but in her paternal grandfather's house.

It was clear that the grandfather was the real defendant and also that the trouble arose, in part, because the plaintiff, who was a native of Trengganu, wished to go back to her own relatives there, taking the child with her.

The main questions to be decided were whether what happened amounted to a legal adoption and, if so, what is the position where the adoptive father dies and the blood relations compete with the adoptive mother for the custody of the child.

The Ketua Kampong gave evidence that adoption is a recognised institution or practice among the Pahang Malays and that the parties are usually related but may be unrelated. He could not say whether any stipulations are usually made as to maintenance or property and he had never known a case either of the natural parents claiming to have the child returned to them or of a question having arisen on the death of an adoptive parent. This witness was independent and responsible; I accepted his evidence.

The grandfather of the child, who is the Ketua of another Kampong and also a naib kathi, agreed that the child had been adopted but he contended that the adoption was by Jalil alone, not by Jalil and his wife jointly; he conceded that adoption of a baby by an unmarried man "does not happen." Further, he contended that adoption is revocable by the "guardian" if the child is in moral danger and that according to Mohammedan law he, the grandfather, was the guardian of the child.

This witness was a passionate partisan but he was the only witness for the defendant, so it is necessary to examine his evidence. Obviously, if any right of revocation exists it must be exercisable by the natural parents, so long as they live. The parents of this child were the nominal defendants; the father was present but did not contest the case in any way. Also it was clear that the grandfather was confusing Malay custom with Mohammedan law and this directly raised the question whether evidence of this kind is admissible. In Laton v. Ramah 6 FMSLR 128 (CA) a majority of the Court of Appeal held that such evidence is not admissible. They said that a question arising on the death of a husband was a question of "the law of the land" which must be propounded by the Court; witnesses must state facts, not law; if, however, it were a matter of foreign law, which is treated as fact, it could only be proved as such, either by an expert witness or by authoritative publications. In effect they held that all law must be, either the law of this country or the law of a particular foreign country. Both these propositions are fallacious; the Mohammedan law is not foreign law in that sense; it varies from country to country; also, in many instances, it varies in some respects between different communities in the same country; the Judges shut their eyes to the fact that Malaya is one of those countries which apply different rules of law to different classes of subjects according to their races and creeds so that it is necessary to find to which of these a person belongs before the particular rule applicable to his case can be known. Thus, the only "law of the land" is that the personal law depends upon the community; to determine the actual rule is a matter of evidence.

Although the judgment in Laton's case was reported more than twenty-five years ago I cannot find any case where it was followed, or even cited. There are, however, several later c