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Chapter 7 Jurisdiction OF THE Malaysian Courts AND STAY

OF Proceedings
Law (Universiti Teknologi MARA)

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CHAPTER 7 JURISDICTION OF THE MALAYSIAN COURTS AND STAY OF

PROCEEDINGS

Contents
Jurisdiction of the Malaysian Courts.....................................................................................................2
Jurisdiction of the Malaysian Courts – the Courts of Judicature Act 1964.........................................2
Section 3 of CJA – local jurisdiction.............................................................................................2
Section 23 of the Court of Judicature Act......................................................................................2
Section 24 of the Court of Judicature Act......................................................................................2
Presence within the Jurisdiction............................................................................................................3
Order 11 Rule 1 of the Rules of court 2012 - Principal cases in which service of notice of writ out
of the jurisdiction is permissible........................................................................................................3
cases..................................................................................................................................................5
Effects of writ depending on the presence of the defendant (writ in effect either in territory or since
the writ is served)..................................................................................................................................6
Submission to the Jurisdiction...............................................................................................................6
Stay of Actions......................................................................................................................................7
Forum Non Conveniens (discretionary power that allows courts to dismiss a case where another
court, or forum, is much better suited to hear the case)......................................................................7
Lis Alibi Pendens (dispute elsewhere pending that may be contradicting judgements).........................8
Foreign Jurisdiction Clause (private stipulation or other to have a choosing of a court)........................9

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Jurisdiction of the Malaysian Courts

• A court must have the required jurisdiction to entertain the action of the plaintiff.
Determine how Malaysian court has necessary jurisdiction to entertain an action brought by
the plaintif and if the Malaysian court decide to be with necessary jurisdiction what the
defendant may to do stay the proceeding?
A situation when a party wants to bring a court action anor party.
2 questions asked whether the court has the jurisdiction? And what law is applicable/used/
govern law of dispute?
Refering to the case, Syarikat Nip Kui Cheong Timber Contractor v Safety Life &
General Insurance Co Sdn Bhd, it is all too clear that both the High Court in Malaya and
the High Court in Borneo have separate and distinctive territorial jurisdiction. Article 121(1)
of the Constitution speaks of the two High Courts having ‘co-ordinate jurisdiction’ and the
definition of ‘local jurisdiction’ in the Courts of Judicature Act 1964 speaks of the territorial
jurisdiction of each of the two High Courts.
Jurisdiction of the Malaysian Courts – the Courts of Judicature Act 1964
According to Section 3 of CJA – local jurisdiction
• High Court of Malaya – Peninsula Malaysia including the Federal Territories of Kuala
Lumpur and Putrajaya; has jurisdiction to hear matter.
• High Court of Sabah and Sarawak – Sabah, Sarawak and the Federal Territories of Labuan.
• Also, the territorial waters and the air space above those states and territorial waters.
According to Section 23 of the Court of Judicature Act
(1) Subject to the limitations contained in Article 128 of the Constitution the High Court shall
have jurisdiction to try all civil proceedings where —
(a) the cause of action arose; (plot, place happen)
(b) the defendant or one of several defendants resides or has his place of business; (residence
or place of business of defendant)
(c) the facts on which the proceedings are based exist or are alleged to have occurred; or
(where the contract concluded?
(d) any land the ownership of which is disputed is situated, within the local jurisdiction of the
Court and notwithstanding anything contained in this section in any case where all parties
consent in writing within the local jurisdiction of the other High Court.
- if none of the limbs in satisfied then Malaysia court will not have jurisdiction to hear the
matter.
-Refer to decide which has jurisdiction within so many other.
Soka v Kasih Sayang, even both courts have concurrent jurisdiction. The defendant must not
put into inconvenience. Since the defendant residing in KL, so High court in KL may hear the
matter. X resides in Ipoh. He visits Sandakan. While he is there, he meets Y. Y resides in KL
in Sandakan, X and Y enter into a contract by which Y agrees to sell a piece of land owned by

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Y in Alor Setar. Subsequently, Y breaches the contract in Sandakan. X wants to sue Y. Should
he sue Y in the HC of Malaysa of Sabah & Sarawak.
According to Section 24 of the Court of Judicature Act
More to subject matter and relevant to determine which level of court to the case. Majistret
court, Session court and high court but if in COL situation- usually refer to Section 23.
Without prejudice to the generality of section 23 the civil jurisdiction of the High Court shall
include— lays down the important foundation as territorial jurisdiction of Malaysian High
court while this section spells out the subject matter which the High Court have jurisdiction.
(a) jurisdiction under any written law relating to divorce and matrimonial causes;
(b) the same jurisdiction and authority in relation to matters of admiralty as is had by the
High Court of Justice in England under the United Kingdom Supreme Court Act 1981;
(c) jurisdiction under any written law relating to bankruptcy or to companies;
(d) jurisdiction to appoint and control guardians of infants and generally over the person and
property of infants;
(e) jurisdiction to appoint and control guardians and keepers of the person and estates of
idiots, mentally disordered persons and persons of unsound mind; and
(f) jurisdiction to grant probates of wills and testaments and letters of administration of the
estates of deceased persons leaving property within the territorial jurisdiction of the Court
and to alter or revoke such grants.

Presence within the Jurisdiction

Aside all that we have common law principle which enable the court be assist with the necessary
jurisdiction when anyone enter Malaysia it comes within the jurisdiction of wither high court of
Malaya and high court of sabah and Sarawak.

 Anyone enters Malaysia comes within the jurisdiction of either the High Court of
Malaya or the High Court of Sabah and Sarawak.

 He can be brought before that court by means of the appropriate writ of summons.

 However, it is said to be ‘exorbitant’ when a jurisdiction is exercised over a person

who is temporarily in the country. Excessively unreasonable

 Because it arises independently of the residence, domicile or nationality of the

defendant.

Order 11 Rule 1 of the Rules of court 2012 - Principal cases in which service of notice of
writ out of the jurisdiction is permissible
Order 11 Rule 1 of the Rule of Court 2012 (not in Sir’s slides. Not sure if needed to include
if this issue comes up, so with self-knowledge identify whether necessary or not so if
relevant can apply)

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(1) Where the writ does not contain any claim for damage, loss of life or personal
injury arising out of—
(a) a collision between ships;
(b) the carrying out of or omission to carry out a manoeuvre in the case of one or
more of two or more ships; or
(c) non-compliance on the part of one or more of two or more ships, with the collision
regulations made under section 252 of the Merchant Shipping Ordinance 1952

25 service of a notice of a writ out of the jurisdiction is permissible with the leave of the
Court in the following cases Choose most suitable situation:
(A) if the whole subject matter of the action begun by the writ is immovable property situated
within the jurisdiction (with or without rents or profits), or the perpetuation of testimony
relating to immovable property so situated;
(B) if an act, deed, will, contract, obligation or liability affecting immovable property situated
within the jurisdiction is sought to be construed, rectified, set aside or enforced in the action
begun by the writ;
(C) if in the action begun by the writ relief is sought against a person domiciled or ordinarily
resident or carrying on business within the jurisdiction;
(D) if the action begun by the writ is for the administration of the estate of a person who died
domiciled within the jurisdiction or if the action begun by the writ is for any relief or remedy
which might be obtained in any such action as aforesaid;
(E) if the action begun by the writ is for the execution, as to property situated within the
jurisdiction, of the trusts of a written instrument, being trusts that ought to be executed
according to law and of which the person to be served with the writ is a trustee or if the action
begun by the writ is for any relief or remedy which might be obtained in any such action as
aforesaid;
(F) if the action begun by the writ is brought against a defendant to enforce, rescind, dissolve,
annul or otherwise affect a contract, or to recover damages or obtain other relief in respect of
the breach of a contract, being (in either case) a contract which— P.U. (A) 26 (i) was made
within the jurisdiction; (ii) was made by or through an agent trading or residing within the
jurisdiction on behalf of a principal trading or residing out of the jurisdiction; or (iii) is by its
terms, or by implication, governed by the law of Malaysia;
(G) if the action begun by writ is brought against a defendant in respect of a breach
committed within the jurisdiction of a contract made within or out of the jurisdiction, and
irrespective of the fact, if such be the case, that the breach was preceded or accompanied by a
breach committed out of the jurisdiction that rendered impossible the performance of so
much of the contract as ought to have been performed within the jurisdiction;
(H) if the action begun by the writ is founded on a tort committed within the jurisdiction;
(I) if in the action begun by the writ an injunction is sought ordering the defendant to do or
refrain from doing anything within the jurisdiction, whether or not damages are also claimed
in respect of a failure to do or the doing of that thing;

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(J) if the action begun by the writ being properly brought against a person duly served
within the jurisdiction, a person out of the jurisdiction is a necessary or proper party
thereto; supposedly Most relatable to most situation
(K) if the action begun by the writ is either by a charge of property situated within the
jurisdiction, other than immovable property, and seeks the sale of the property, the
foreclosure of the charge or delivery by the charger of possession of the property but not an
P.U. (A) 27 order for payment of any moneys due under the charge or by a charger of
property so situated, other than immovable property, and seeks redemption of the charge,
reconveyance of the property or delivery by the charge of possession of the property but not a
personal judgment;
(L) if the action begun by the writ is brought under the provisions of any written law relating
to carriage by air;
(M) if the claim is brought to enforce any judgment or arbitral award.

cases
Refering to the case, Maharanee of Baroda v Wildenstein [1972] 2 QB 283, If a defendant
is duly served with a writ while in the United States, even if only for a short time, the plaintiff
is prima facie entitled to carry the case to its conclusion. He has properly invoked the Queen's
courts' jurisdiction, and he has the right to demand that they continue to adjudicate his claim.
It was held that the burden is on the Defendant to show that it would be an injustice to him to
have the case tried here, for example that the proceedings are oppressive or vexatious to the
defendant and that a stay of proceedings would not constitute an injustice to the Plaintiff.
Briefly, if the defendant's writ requires him to attend a court in a foreign country, even if he is
only there for a short time, he could be ordered to attend the procedure and complete it. Aside
from that, it is up to the defendant to show that the proceedings are oppressive or vexatious
and will do him harm.

Refering to the case, American Express Bank Ltd v Mohamod Toufic Al-Ozeir & Anor
[1995] 1 MLJ 160.
- This has been the position taken by Malaysian courts. The law in Malaysia in respect
of jurisdiction over defendant served with proceeding in was considered by the
supreme court many years ago. This case involves foreign elements, the court state
that Q1. The court here has established that by way common law there are 2 ways
that we can say that Malaysian court has jurisdiction. By the presence by the foreign
defendant in Malaysia and submission where the defendant has actually has
submitted by the jurisdiction for the Malaysian court.
The Supreme Court considered the laws dealing with a case involving some foreign elements.
Firstly, whether our courts have jurisdiction, for example the power to deal with the case. The
court further explain, that at common law, a Malaysian court would have jurisdiction over a
foreign defendant if he is present in Malaysia. If he is not present in Malaysia but has
submitted to jurisdiction, the Malaysian court would still have jurisdiction which means he

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has submitted to being sued in Malaysia. If neither he can be served in this country nor has,
he submitted to jurisdiction, then the Malaysian court can still have jurisdiction by service out
of jurisdiction – Order 11 rule 1 of the Rules of the High Court 1980 (now Rules of Court
2012). In this case, Order 11 rule 1 of the Rules of Court 2012 provides that the Malaysian
court has jurisdiction over the matter as long as the foreign defendant is present in Malaysia
or is subject to Malaysian jurisdiction but is not present in Malaysia.

Refering to the case, Tan Sri Abdul Rahim bin Datuk Thamby Chik v John Marcom&
Ors (No.2) [2000] 5 MLJ 191 (Presence induced by fraud), by wirtue Section 23(2) of
CJA, the High Court continued to exercise its jurisdiction over those served with proceedings
whilst they were in Malaysia even if their presence was temporary in nature. However, when
the presence of the defendant in the country has been induced by fraud, other considerations
arise. Other considerations would arise if the presence of the defendant even temporary is
induced by fraud. Although we say the trend as been that critized has been exorbitant if the
court is to exercise jurisdiction over someone being in country temporarily but Malaysain
court has been taking the position that even if the presence temporary the Malaysian court
can still continue to exercise jurisdiction besed on the statue and precedent by common law
cases.
The presence of the defendant in the country has been induced by fraud other
considerations arise.
Refering to the case, Lim Guan Teet v Tunku Akobe [1882] 1 Ky 539, here the defendant
came within the jurisdiction of Penang High court at the invitation of the plaintiff then
defendant was arrested for that incidence of the matter. Plaintiff could not, ‘having induced
the defendant to come within the jurisdiction for one purpose afterwards change his ground’
and arrest him. In courts of law, clean hands are a necessity, even in an age marked by a
dubious business morality. So, the court basically said that the plaintiff itself did not act with
clean hands the court did not support the case. Evidence required to establish that the
defendant was persuaded into appearing in a foreign court.
Refering to the case, Laurie v Carroll [(1958) 98 CLR 310, The Australian High Court
accepted that an exception to personal jurisdiction based on presence may be found where the
defendant has been enticed into the forum fraudulently for the purpose of service if the
defendant was fraudulently enticed into a forum, an Australian court concluded that it would
be an exemption to proceeding with personal jurisdiction.
Refering to the case, Watkins v North American Land & Timber Co Ltd (1904) 20 TLR
534, The House of Lords held that the service of a writ would not be set aside where the
concealed purpose of serving the defendant was not the only reason for being persuaded to
enter the jurisdiction. In this case, the writ will not be set aside only if the purpose of
persuading the defendant to be in the court is concealed

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Effects of writ depending on the presence of the defendant (writ in effect either in
territory or since the writ is served)
 Whether the defendant must be present in the territory at the time the writ issued or at
the time the writ is served?

Refering to the case, Laurie v Carroll states that, when she saw the presence within
jurisdiction, he did not know about the existence of the WRIT but upon knowing the writ is
issued against him. But before the writ is served, he quickly left Malaysia. The consideration
is that the defendant must be presence within Malaysia at the time the writ is served then you
never will be able to serve the writ because the plaintiff knows the writ is sued against the
will always escape. Logically the defendant must only be present in territory. The court
stated, if a defendant knowing of the issue of a writ goes abroad before personal service or,
although he does not positively know of the fact of the issue of the writ, goes abroad to evade
service, doubtless he may be treated as under notice of the obligation of its command.
Basically, from this case, it does not matter whether the defendant goes abroad to avoid the
writ or not, the effect of the writ will instil an obligation to the defendant to perform as the
writ.
In order to sue a person, the plaintiff would of course hire a lawyer and the lawyer would
have to draft a writ and statement of claim. Then writ must be endorsed by the court, then
seal the writ then plaintiff must serve the writ to defendant. Only when writ is served on
defendant, then the defendant is informed of the suit. Whether issued? Served? The court said
it is the presence of the defendant in the forum at the time of the issue of the writ because to
say presence of defendant within the jurisdiction at the time of issued but left before the
service it could be subject to the jurisdiction of the court because the service may be done by
way of substituted by the service. The important thing is that when the issue the writ the
defendant is within the jurisdiction because that is the act that give the court necessary
jurisdiction and after the writ is issued but before the writ is served the defendant left
Malaysia does not matter because we can do substituted service. For example, posting on
notice board/ newspaper/ served it jurisdiction

Submission to the Jurisdiction

- Permit the case to be heard by one HC instead of another provided all party consent in
writing to such through when parties agreed have dispute tried by particular jurisdiction the
parties are said to be submit themselves to the jurisdiction.

 Section 23(1) of the CJA states that Subject to the limitations contained in Article
128 of the Constitution the High Court shall have jurisdiction to try all civil
proceedings, were,

a) the cause of action arose;

b) the defendant or one of several defendants resides or has his place of business;
c) the facts on which the proceedings are based exist or are alleged to have occurred; or
d) any land the ownership of which is disputed is situated, within the local
jurisdiction of the Court and notwithstanding anything contained in this section
in any case where all parties consent in writing within the local jurisdiction of the
other High Court.

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 From the section mentioned the submission may be voluntary or implied from the
conduct of a party:
• Acceptance of service; When the plaintiff wants to sue the defendant, the plaintiff
would issue of claim and served writ and state claim on the defendant evade
service- try to avoid the service.
• Entry of an unconditional appearance;

• Pleas on the merits of the case; if the defendant wants to dispute the jurisdiction of
the country, he may accept the service. But will enter a conditional appearance &
purpose of entering to dispute the jurisdiction of the court, then in beginning od
the case hearing- he will tell the court the defendant is disputing the jurisdiction of
Malaysian court. The court need to solve this problem of jurisdictional issue to
ascertain whether the Malaysian court has jurisdictional to hear the case. So the
parties want to go directly to the case.

-Normal; parties will file the statement of claim and defence arguing on merit of case. For
example, contractual dispute the parties will argue on contractual obligations of parties. If
you do so, u agreed to the jurisdiction of the court, you have not dispute over the jurisdiction
of the court. So that will indicate the party’s submission to the jurisdiction.

• Contractual submission; usually found from the contract containing the term to the
effect that a court shall have jurisdiction to hear determine any action in respect of
the contract. So, the parties already agreed for a particular court to hear the matter
should any dispute arise from the contract.
• Submission by instituting proceedings, so person who is abroad not otherwise
subject to the jurisdiction of the court the role of plaintiff whereby gives the court
jurisdiction over a counter claim by the defendant on any matter related to the
plaintiff claim. Do if you are foreigner in foreign country.

 Submission, nevertheless, cannot give the court jurisdiction to entertain an action or

other proceeding which in itself lies beyond the jurisdiction of the court. Where if the
matter is outside the court’s jurisdiction in the first place, the submission should not
be entertained by the court.

Stay of Actions
• A plaintiff (choose the forum) may, in reality, choose the forum of the action while the
defendant may object to trial in that forum for various reasons.
• Paragraph 11 of the Schedule to the Court of Judicature Act 1964, regarding res judicata–
Power to dismiss or stay proceedings where the matter in question is res judicata between the
parties, or where by reason of multiplicity of proceedings in any court or courts the
proceedings ought not to be continued. Basically, from this paragraph, a court may stay the
proceeding depending on a matter that has been adjudicated by a competent court and may
not be pursued further by the same parties.

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• Order 18 rule 19 of the Rules of Court 2012 –

(1) The Court may at any stage of the proceedings order to be struck out or amended any
pleading or the endorsement, of any writ in the action, or anything in any pleading or in the
endorsement, on the ground that—
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(c) it may prejudice, embarrass or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed
or dismissed or judgment to be entered accordingly, as the case may be.
(2) No evidence shall be admissible on an application under subparagraph (1)(a).
(3) This rule shall, as far as applicable, apply to an originating summons as if it were a
pleading.
Essentially, this order grants the Court the power to strike down any pleading or endorsement
of any writ in the action on the grounds that they disclose "no reasonable cause of action," are
"scandalous, frivolous, or vexatious," or are "otherwise an abuse of the court's process."
• It is clear that the Malaysia courts are well equipped to control domestic proceedings.
Consequently, a person (who is subject to the jurisdiction of the court) may be
restrained from instituting or continuing proceedings outside Malaysia.

• Generally, there are three common grounds on which a stay of proceedings is sought:
o Doctrine of forum non-conveniens;
o Lis alibi pendens; and
o Forum clauses.
Forum Non Conveniens (discretionary power that allows courts to dismiss a case where
another court, or forum, is much better suited to hear the case)
 The trial in the forum is arguably manifestly inconvenient – there is a more
appropriate foreign court
Refering to the case, St Pierre v South American Stores Ltd [1936] 1 KB 382, A mere
balance of convenience is not a sufficient ground for depriving a plaintiff of the advantages of
prosecuting in his action in an English court if it is otherwise properly brought. The right of
access to the King’s court must not be lightly refused. In order to justify a stay two conditions
must be satisfied, one positive and the other negative, where the defendant must satisfy the
court that the continuance of the action would work an injustice because it would be
oppressive or vexatious to him or would be an abuse of the process of the court in some other
way; and that the stay must not cause an injustice to the plaintiff. As a result of this case, the
stay must not be burdensome to both parties, and it is the defendant's duty to show that the
stay would be oppressive or vexatious to him, or that it would be an abuse of the court's
process.
Refering to the case MacShannon v Rockware Glass Ltd [1978] AC 795, to justify a stay
the defendant had to satisfy the court that there was another forum in another country to

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which he was amenable, where justice could be done between the parties at substantially less
inconvenience and expense; the stay must not deprive the plaintiff of any ‘legitimate personal
or juridical advantage’ available to him in England. Therefore, if there is another court that
would be a better suit to settle the case, it should be used, and it is the defendant's
responsibility to establish it.
Refering to the case The Spiliada [1986] 3 All ER 843 The Lord Goff held that, the court
will grant a stay of proceeding where the court is satisfied that there is some other available
forum, having competent jurisdiction, which is the appropriate forum for the trial of the
action, for example, in which the case may be tried more suitably for the interests of all
parties and the ends of justice. The onus is on the defendant seeking the stay. Basically, if
there is an alternative court to better suit settle the matter it should be done so where it is the
obligation of the defendant to prove so.
Refering to the case BSNC Leasing Sdn Bhd v Sabah Shipyard Sdn Bhd & Ors [2000] 2
MLJ 70, It must be established that there is clearly a more appropriate forum in another
country with which the action has the most real and substantial connection and that it is in the
interests of justice to have the dispute resolved by that forum. In deciding where the interests
of justice lie, a court may take into account a combination of several factors. These include,
but are not confined to, the following matters, where that the dispute has a real and
substantial connection with the foreign court; other than that, all or most of the important
witnesses are situated within the jurisdiction of the foreign court; whether that the plaintiff
will enjoy a personal or juridical advantage by having the dispute tried by the Malaysian
court. This case basically indicates that the court will consider three factors in granting the
stay: if the outside court can provide better justice than the court sought to be stayed in,
whether the stay will burden witnesses, and if the plaintiff would get any personal benefit
from the delay.

Lis Alibi Pendens (dispute elsewhere pending that may be contradicting judgements)
 The same plaintiff may sue the same defendant in Malaysia and elsewhere, or the
same defendant may sue the same plaintiff in Malaysia and elsewhere, on the same
issues.
Refering to the case The Abidin Daver [1984] AC 398, the House of Lords held that, two
jurisdictions may reach conflicting decisions. Such a situation should not be allowed to arise
between the courts of two civilised and friendly states, according to comity. It's a recipe for
confusion and injustice. When a suit between a plaintiff and a defendant about a specific
subject matter is already pending in a foreign court that is a natural and appropriate forum for
the resolution of their dispute, the defendant in the foreign suit seeks to institute as plaintiff
an action in England about the same subject matter to which the person who is plaintiff in the
foreign suit is made defendant. The added inconvenient and expense that must come from
enabling two sets of legal proceedings to be pursued concurrently in two different nations,
when the identical facts will be at question and the testimony of the same witness would be
necessary, can nevertheless be justified if the would-be plaintiff can show objectively, mostly
through cogent evidence, that there is some judicial advantage that he would only be able to
obtain in an English action, and that depriving him of it would be an injustice to him.

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Basically, explains that, the case of the defendant and plaintiff is being held in another
country and an action is seeked in another country. It might cause confusion as 2 cases are
held for the same facts. But may be able to be done so as long as the plaintiff could prove that
the existing proceeding of court would cause him injustice.
Refering to the case Societe Nationale Industrielle (SNI)Aerospatiale v Lee Kui Jak &
Anor [1987] 2 MLJ 397 (injunction for a party pursuing in a foreign judgement) Lord
Goff of the court established the outline the basic principles of law relating to injunctions
restraining a party from commencing or pursuing legal proceedings in a foreign jurisdiction.
In a situation like this, where a remedy for a specific injustice is available in both an English
and a foreign court, the English court will normally only prevent the plaintiff from pursuing
proceedings in the foreign court if doing so would be vexatious or oppressive. Furthermore,
because the court is concerned with the objectives of justice, consideration must be given not
only to the defendant's injustice if the plaintiff is permitted to pursue the foreign proceedings,
but also to the plaintiff's injustice if he is not enabled to do so. So, as a general rule, the court
will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the
foreign forum of which it would be unjust to deprive him. Basically, from this case, the court
can inflict an injunction on a proceeding in a foreign jurisdiction for a wrong that is
recognised by the English court as well. The injunction may only be affected if it would not
cause injustice to the plaintiff and defendant.

Foreign Jurisdiction Clause (private stipulation or other to have a choosing of a court)

 A choice of court clause is different from a choice of law clause.

 A choice of law clause does not in itself constitute a submission to the jurisdiction of
the court in which an action is instituted.

 When the parties have agreed to submit to the jurisdiction of a foreign court, does this
oust the jurisdiction of the Malaysian courts?
Refering to the case The Fehmarn [1958] 1 All ER 333, Lord Denning: The parties’ choice
of law was not ‘decisive’, for no one by his private stipulation can oust these courts of their
jurisdiction in a matter that properly belongs to them. Basically, a private stipulation could
not oust a court’s jurisdiction in the matter when the certain matter belongs to the court’s
jurisdiction.
Refering to the case The Eleftheria [1970] P 94 , In exercising its discretion, the English
court should take account of all the circumstances of the case, including, if relevant in what
country the evidence on the issues of fact was available, and the relative cost and
convenience of trials. Other considerations would be whether foreign law applied and, if so,
to what extent it differs from English law in any material respect. Other than that, with what
country either party is connected, and how closely. Thirdly, whether the defendant genuinely
desires trial in a foreign country, or only seeks procedural advantages there. Fourthly, whether
the plaintiff will be ‘prejudiced’ by having to sue in a foreign country, either by losing
security for his claim, being unable to enforce any judgment obtained there, being faced with
a time-bar not applicable locally, or being unlikely to get a fair trial. In general, the court
must determine what country the evidence on the questions of fact was available, as well as
the relative expense and convenience of trials, as a result of this case. Second, would the

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foreign law be completely different from English law if it were to apply? Aside from that,
does the defendant want to gain only a procedural advantage or more? Fourth, would the
plaintiff be prejudiced as a result of the defendant's actions?
Refering to the case Globus Shipping and Trading Co Pte Ltd v Taiping Textiles Bhd
[1976] 2 MLJ 154 The Federal Court held that it would seem abundantly clear from the
authorities that where a cause of action in respect of any dispute in relation to a contract
arises and is therefore properly within its jurisdiction, the court has a discretion whether or
not to adjudicate upon the claim in the action even where the parties have agreed to refer such
dispute to a foreign court, and that the question of jurisdiction is quite separate from the
question of the proper law of the contract to be applied. In a summary, where a court has
proper jurisdiction over a matter, it is up to them to assess whether or not the parties' private
provision in their contract to choose a specific court in a foreign nation is valid.
Refering to the case Feed & Food Farms (Nig) Ltd. v Nigerian National Petroleum
Corporation (2009) 12 NWLR (Pt. 1155) 387 it establishes that jurisdiction of the court
should be categorised into two areas or compartments. These are jurisdictional matters
affecting the public in the litigation process and those affecting the personal, private or
domestic right of the party. While the former cannot in law be waived, the latter can be
waived in law. Essentially, a court's jurisdiction is divided into two parts: one that affects the
public and the other that impacts the party's personal rights. Litigation involving the public
can be waived, but litigation involving personal matters, such as business contracts, cannot.
Refering to the case Lignes Aeriennes Congolaises (L.A.C) v Air Atlantic Nigeria Limited
(A.A.N) (2006) 2 NWLR (Pt. 963), Oputa JSC held that courts guard rather jealously their
jurisdiction and even where there is an ouster of that jurisdiction by statute it should be by
clear and unequivocal words. Private acts such as business contract should not be able to
remove the jurisdiction of court properly and legally, since the court is legally vested to have
jurisdiction in the matter. Where courts should be in charge of their own proceedings. When it
is said that parties make their own contracts and that the court will only give effect to their
intentions as expressed in and by their contracts, that should generally be understood to mean
and imply a contract which does not rob the courts of its jurisdiction in favour of another
foreign forum.
Generally, if a court's jurisdiction is dismissed by statute, the court's jurisdiction should be
allowed to be dismissed as long as it is done with clear and unequivocal wording. However,
in the case of a private act by parties to choose their choice of court, it should be generally
known and implied that a contract does not deprive the courts of their jurisdiction in favour of
a foreign court.
In the case of State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 57 – 59 it was held that a
court that does not have jurisdiction on the matter, it would render that court to not validly
exercise any judicial power on that matter. If that court in general would have jurisdiction on
the matter, it would render them to not have a valid jurisdiction.

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