CIVIL PROCEDURE 1

JURISDICTION OF THE CIVIL

COURTS
 JURISDICTION OF THE
CIVIL COURTS
 Hierarchy of courts
a. Federal Court
b. Court of Appeal
c. High Court
d. Sessions Court
e. Magistrates’ Court
f. Penghulu’s Court-in Peninsular Malaysia
only. The Penghulu’s Court has been abolished by Act
A1382.
Court with special jurisdiction
 The Special court for rulers-Art. 182
 Military court
 Industrial court
 Labour court
 Native court- in Sabah and Sarawak
 Syariah court- for muslims only
What is jurisdiction?
 Jurisdiction and power of the courts are two distinct
terms.
 Jurisdiction refers to the authority of court to hear
and decide cases.
 powers refer to the court`s capacity to give effect to
its judgment by making the order or relief sought.
 Refer to- Lee Lee Cheng V Seow Peng Kwang
[1960] Mlj 1, Coa.-it stated that although a court is
given certain powers, it does not mean that the
court can use that powers if it has no jurisdiction
and that if a court has jurisdiction over a matter, it
cannot exceed its powers.
Continues…
 Classification of jurisdiction
– Jurisdiction over subject matter
– Local /territorial jurisdiction
– Pecuniary/monetary jurisdiction
Continues…
 Jurisdiction of civil courts is
provided in the;
 A- Court of Judicature Act 1964
-which governs jurisdiction and power of the
superior courts in Malaysia
-ie. HC,COA, FC
 B- Subordinate Courts Act 1948
-which governs jurisdiction and powers of
subordinate courts
-ie. Sessions court, Magistrates’ court, penghulu
court
JURISDICTION OF THE HIGH
COURT
 HC is established by Article 121 of the Federal Constitution
 A.121 FC-there are 2 High Courts of co-ordinate jurisdiction
and status, that is the High Court of Malaya and the HC of
Sabah and Sarawak
 Its jurisdiction is provided for in the Court of Judicature Act
1964.-S. 23 (1) ‘subject to the limitations in Art. 128 of FC,
the HC shall have jurisdiction to try all civil proceeding....’
 Hct has no monetary limits, can hear and determine any
amount of claims not within monetary jurisdiction of sub.
Courts.
 LOCAL JURISDICTION
 Section 3 CJA 1964-defines what is local jurisdiction for HC of
Malaya and HC of Sabah and Sarawak.
 S. 3 CJA CJA-LJ of HC of Malaya includes all the states in the
peninsular of Malaysia, LJ of HC of Sabah and Sarawak includes all
the territories in Sabah and Sarawak.
 S. 23(1) CJA- HC has Jurisdiction to hear a particular claim if one of
the following grounds is satisfied;
– (a)- where the cause of action arose or
– (b)- where the defendant or one of several defendants resides
or has his place of business or
– (c)- where the facts on which the proceedings are based exist or
alleged to have occurred or
– (d)- any land the ownership of which is disputed is situated
within the local [territorial] jurisdiction unless all parties consent
in writing to submit to the jurisdiction of other High Court.
Continues…
 H/w the court will also consider the principle of
‘forum conveniens’-in Harrah`s Operating Co. Inc v
Wu Yun Shya Josephine [2008] 4 MLJ 63- forum
conveniens refers to the discretionary power of the
court to decline jurisdiction when convenience of
parties and ends of justice would be better served if
action were brought and tried elsewhere. The
phrase does not mean that the court before which
the issue is being canvassed is not convenient but
that some other courts are more suitable.
Continues…
 In Sova Sdn Bhd v. Kasih Sayang Realty
Sdn Bhd [1988]2 MLJ 268. – a case on the
breach of S & P agreement to purchase IP.
The breach occurred in Penang.
 The court held that a HC located in Penang
or at Alur Setar is but a branch of the HC in
Malaya and each branch HC in Malaya
located in any state has concurrent
jurisdiction to hear any civil proceedings
regardless of whether the coa arose in
another state.
Continues…
 h/w in that case the HC said that the
HC in Alur Setar is not the proper and
convenient forum to hear the case
since the COA arose in Penang and
the parties have their place of
business in KL, and it is for the
defendant to apply to transfer the case
to the HC in Penang/KL.
Continues…
 High Courts in Malaysia will not have jurisdiction if
no conditions set out in s 23(1) are satisfied.
– Lam Kok Trading [1985] 2 MLJ 429
• The contract was made outside jurisdiction-defendant
resided outside Malaysia, had no place of business in
Malaysia, and the breach occurred outside Malaysia-
Held- no jurisdiction.
– Malayan Banking Bhd v. The International Tin Council
[1989] 2 CLJ 961
• Malaysian Courts have jurisdiction if one of the several
Defendants is within the jurisdiction of the Malaysian
Courts, even if the rest of the Defendants are not.
SPECIFIC CIVIL JURISDICTION –S. 24
CJA
 SUBJECT MATTER JURISDICTION

• HC can try all subject matters except expressly

excluded by the FC.
• It also has the specific subject matter of civil
jurisdiction-S. 24 of COJA 1964
• Art.128 of the FC;-HC has no jurisdiction;
• validity of written law
• dispute between federation and states and
between one state and another state.
• Questions on the effect of any provision of the
Constitution.
HIGH COURT`s APPELLATE
CIVIL JURISDICTION
JURISDICTION OF THE
SUBORDINATE COURTS
 Governed by Subordinate Courts Act
1948(SCA).
 S 3(2)-Sub. Courts in peninsular are
Sessions, Magistrates` courts.
 S. 90- 1st Class Magistrate-amount of
dispute/value of SM does not exceed
RM 100,000.
Continues…
 S92- 2nd Class Magistrate (the Registrar of
the Subordinate Courts are the 2nd Class
Magistrates)-to try original actions to
recover debt/liquidated demand in money
with /interest not exceeding RM10,000-it
has no appellate jurisdiction
 It can also try small claims actions of less
than RM5k-O. 93 of ROC 2012
 S 93(1)- Sub-section 65(3) and (4), ss 66-
70 and 72-74 apply mutatis mutandis to
Magistrates` Courts.
SESSION COURTS
Continues…
 Nevertheless, subject to the following;[applies also
to the Magistrates-S 93]
– S65(3) SCA-if parties to a dispute agree in
writing to submit to the jurisdiction of the SC, SC
shall have jurisdiction although the amount in
dispute exceeds its monetary jurisdiction.
– S 65(4)-such agreement must be filed in court
and the parties shall subject to the jurisdiction of
SC.
– S 65(5)-SC may grant an injunction and make
a declaration in respect of actions within its
jurisdiction.
Continues…

– S 67- the plaintiff may relinquish

part of his claim in order to bring his
action within jurisdiction of SC.
– S 68-Plaintiff cannot split the claim
and cannot sue the same party in
more than one action in respect of
the same cause of action.
Continues…
COUNTER CLAIM[ applies also to the
Magistrates–S 93}
 S.66(1) SCA- Sessions court may try the
matter even if the counter claim exceeds
the plaintiff’s claim but the session court will
not give relief/award exceeding its
jurisdiction
 S.66(2) SCA; HC may, on application by
any party,order the matter to be transferred
to the HC.
Exceptions to SC`s jurisdiction
 Sessions have no jurisdiction on the following
matters(s. 69 of SCA);
 a-matters relating to immovable property
except under S 70 and 71
 e-to enforce trust
 f-for accounts
 g-declaratory decrees except under S 65(5)
(b) and interpleader proceeding under S.73
 h-issue or revocation of grant of
representation
 i-legitimacy
 j-guardianship/custody of infants except if
specifically provided in any written law
 k-validity or dissolution of any marriage
ACTION CONCERNING
IMMOVABLE PROPERTY
Continues…
 in any such action there may be added a claim for
rent, mesne profit [Mesne (pronounced "mean")
profits. profits which have accrued while there
was a dispute over land ownership. If it is
determined the party using the land did not
have legal ownership, the true owner can sue
for some or all of the profits made in the interim
by the illegal tenant] and for damages from
defendant`s holding over/resisting
possession/breach of any agreement etc. -70 (2).
Continues…
 Where a bona fide dispute of title/question
of ownership arises- Sessions Court has no
jurisdiction- S70(4), unless the parties
consented- if no consent-SC shall apply to
the Hct, for the Hct to transfer the action to
itself-S 71.
 S 93 provides tt S 65(3),65 (4), and S 66-70
and 72-74 shall apply to the Magistrates
Court mutatis mutandis. So, the Magistrate
also has jurisdiction to hear the case only if
there is no Bona fide dispute of title.[s 71
does not apply to the Magistrate]
 CONCLUSION
 Before filing a case, plaintiff should ensure that the
case is filed at the proper court, i. e an action
should be commenced in the court which has
jurisdiction. Otherwise it may be a ground for the
case to be struck out.
 Defendant can raise preliminary objection that the
proceeding should be struck off for want of
jurisdiction. OR he can file an application to have
the case transferred/stayed/struck out.
 if realized tt the case was filed in the wrong court,
file an application to transfer/withdraw the case with
liberty to file a fresh.