Monday, October 7, 2013
“SHALL” as “MUST”
The High Court in Kertih Port Sdn Bhd v Owners of the Vessel ‘Shema’  2 MLJ 589, at page 596, had this to say: “Both rr 7 and 10 use the word ‘shall’. Its use means that the act specified is mandatory. [Ref, made to Mohamed Suboh v Devadas  1 MLJ 136;  1 LNS 201 &Public Prosecutor v Yap Min Woie  1 MLJ 169 (FC)]
The word “shall” is to be construed as “directory” or “mandatory”. Coleridge CJ in Woodward v. Sarsons And Sadler (Birmingham Municipal Election)  LR 10 CP 733, at pages 746 to 747, in trenchant terms had this to say: “... an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.”
In The British Insulated Wire Company, Limited v. The Prescot Urban District Council  2 QB 463, 464, the court considered section 174(2) of the Public Health Act 1875 which provided that every contract made by an urban authority under the said Act of the value of over £50 “shall specify some pecuniary penalty to be paid in case the terms of the contract are not duly performed”. The court held that the said Act to be obligatory and not directory.
In re Burton and Blinkhorn  2 KB 300 was a case under section 32 of the Solicitors Act 1843 where the following words were employed “shall and may be struck off the roll” and the court held
that those words gave no discretion. It was mandatory.
Abdul Malik Ishak JCA in Ismail Abdullah v. Tenaga Nasional Berhad (Court of Appeal, Malaysia)(Civil Appeal No: K-03-1-2008) states, inter alia, “Section 16(2) of the Act does not require the MMK (State Authority) to give reasons for its decision since its decision is final...”
Note: Section 16(2) Electricity Supply Act 1990 states, “Any person aggrieved with the District Land Administrator’s assessment may within twenty-one days after the assessment appeal to the State Authority whose decision shall be final”.