The position for two categories of cases may be summarised thus: (1) For
cases which attract the application of the Singapore SGA, the buyer cannot
avail himself of a statutory market overt rule because the rule has been
omitted from that Act; (2) It is unclear if section 22(1) of the UK SGA is
applicable in cases, like Caterpillar, which are still governed by the old
section 5 of the Civil Law Act. Caterpillar can be interpreted in two possible
ways. The first is that it proceeded on the basis that section 22(1) does not
apply in Singapore, and that the decision was reached by applying a newly
evolved common law principle. If so, the common law principle it
enunciated, or on which it was decided, would have to be considered.even
in cases falling under category (1). The second possible interpretation is
that the Chief Justice did apply section 22(1) but he interpreted it to suit
local circumstances. On this interpretation, what Caterpillar decided is
obviously of no relevance in category (1) cases. It is unclear which approach
the court actually took.29
If the first interpretation is true to what the court intended, it is submitted
that the decision cannot be justified. Under section 3(1) of the AELA,
English common law, so far as it was part of Singapore law immediately
before the commencement of the AELA, shall continue to be part of
Singapore law. It may be argued that the common law market overt rule
was received under the Second Charter of Justice 1826 and therefore still
forms part of Singapore law today. There are two main arguments30 and
one incidental observation against that view. The first argument is founded
in section 3(2) of the AELA, which qualifies the earlier sub-section. It
states that English common law is received ‘so far as it is applicable to the
circumstances of Singapore and its inhabitants....’ As noted, the market
overt rule, in the English common law form, fails to pass muster. It can
perhaps be said that the court in Caterpillar was modifying English common
law to suit local conditions. However, as will be demonstrated later, the
rule applied in Caterpillar is so drastically different from the market overt
rule that to call it a modification of that rule seem somewhat euphemistic.
More importantly, it runs against the second argument that follows.
The second argument is based on the supremacy of statutory law over
common law. Section 21(1) of the SGA states a positive nemo dat rule and
that statutory rule is said to be ‘subject to the Act’. This means that (i) the
statutory nemo dat rule is qualified and (ii) the qualifications must berecognised by the Act. Can the common law market overt rule qualify the
statutory nemo dat principle? The answer has to be in the negative because
generally common law cannot override a statutory rule. It is true that a
statute may recognise a common law rule and in addition confer on it the
ability to override another statutory rule.31 It may therefore be argued that
the common law market overt rule is a ‘special common law...power of
sale’ under section 21(2)(b) of the SGA and that as such, it is invested by
that section with the ability to override the statutory nemo dat rule. This
argument was raised but convincingly rejected in Queensland (whose Sale
of Goods Act 1896 contained an equivalent of section 21(2)(b) of the
SGA) in the case of Sorley and Stirling v Surawski.32 Compelling reasons
were given. Macrossan CJ held that the common law did not recognise in
thieves a power to sell the goods they had stolen. The special ‘common
law...power of sale’ referred to in the Queensland’s equivalent of section
21(2)(b) of the SGA must be a lawful power of sale, such as that which a
pawnee is given at common law upon default of payment of loan.33 As
Stanley J noted, if the thief has the legal power of sale of stolen goods, his
sale is lawful, which means he cannot be sued for it. This cannot be right
for it is indisputable that the owner has a cause of action against the thief
for conversion