Lord Fraser of Tullybelton default (delivering the judgement of the Board):

The appellant is a moneylender in Kuala Lumpur. She is licensed under the Moneylenders Ordinance, 1951 (No. 42 of 1951), to carry on the business of moneylending under the name of "AR PR M Firm". There were two partners in the firm, the appellant who was the managing partner, and a man named Chockalingam who lived in Madras and who appears not to have taken an active part in the business. On 11 January 1965 the firm made a loan of $20,000 to the respondent's deceased husband Ng Siew San; he died during the course of the litigation and the respondent is his executrix. As security for the loan Ng gave a charge over six pieces of land in favour of the appellant, and the proceedings began with an Originating Summons on February 1971 in which the appellant applied for an order for sale of the land by public auction to satisfy the principal sum and the arrears of interest then due to her. Ng opposed the application and counterclaimed for an order that the contract of loan and the charge were illegal and void and were therefore unenforceable. The matter first came before Mohamed Azmi J Both he and, on appeal, the Federal Court (by majority) decided in favour of the counterclaim, and dismissed the appellant's claim. The appellant now appeals against the decision of the Federal Court. If the decision was right, and the contract and the security are void, the respondent admits that she as executrix is bound under the Contracts (Malay States) Ordinance, 1950, to restore to the appellant the principal sum borrowed, but there is a dispute as to whether the respondent is also bound to pay any interest on the principal sum and, if so, at what rate and from what date. The Federal Court held that the respondent was liable for interest at 6 0.000000rom the date of raising the action. The respondent wished to cross-appeal against that part of the decision but not having obtained leave for a cross-appeal from the Federal Court lodged a petition for special leave to cross- appeal. Their Lordships will advise the Yang Dipertuan Agung that such special leave be granted.

The first question is whether the appellant contravened the Moneylenders Ordinance, 1951, by entering into the contract and taking the security in her own name instead of in the name of the firm. Before Mohd Azmi J counsel for the appellant conceded that there had been contraventions of that Ordinance but the concession was later withdrawn (quite properly), and in the Federal Court and before their Lordships' Board the submission for the appellant on this point was that there had been no contravention of the Ordinance. Consideration of this question must start from the fact that the lender was the firm ARPRM and not the appellant as an individual. That was accepted by both parties. The loan was made by a cheque signed on behalf of the firm and presumably drawn on the firm's account in the bank, the transaction was recorded in the books of the firm, and receipts for the only two instalments of interest that were paid were granted on behalf of the firm. The difficulty from the appellant's point of view arises because two essential documents in relation to the loan contained statements that the lender was the appellant as an individual. One of these documents was the Note or Memorandum of Loan which is required by s. 16 of the Moneylenders Ordinance to be signed by or on behalf of both parties to a contract of this sort, and without which no contract for the repayment by a borrower of money lent to him is enforceable. The other document was the Memorandum of Charge, under the Land Code, by which the borrower Ng charged the land as security for the loan and the appellant accepted the charge. The contention of the respondent, which succeeded in both the lower courts, is that the appellant, by taking these two documents in her own name as an individual, contravened s. 8 of the Moneylenders Ordinance.

In