BACHELOR OF LAWS AND SHARIAH (LLB AND SHARIAH) (HONS.

)
CIVIL PROCEDURE I (LAD 5033)
STATUTES& CASES
CLPE OUTLINE
WEEK 1:
COMMENCEMENT OF CIVIL PROCEEDINGS:
PRELIMINARY MATTERS
CIVIL COURTS OF ORIGINAL JURISDICTION

I. Preliminary matters
1. Purpose of Civil Procedure
(a) Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd
[1995] 3 MLJ 331 (FC)
"... That justice of the case should be the overriding consideration is axiomatic. After all, courts
exist to do justice according to the law as applied to the substantial merits of a particular case.
And the rules of court and practice are created to facilitate the attainment of justice, not its
obstruction."
(b) See also Order 1A of ROC 2012

2. Sources of civil procedure

(a) Statutes, e.g Courts of Judicature Act, 1964; See also Courts of Judicature (Amendment) Act,
1998;
(b) Rules, e.g Rules of Court 2012;
(c) Case laws; and
(d) Practice Direction.

3. Cause of Action
(a)It is pertinent to ask if the plaintiff has a cause of action which is complete.
(b)See Yong J in Lim Kean v Choo Koon [1970] 1 MLJ 158 at p. 159
(emphasis added):
"A cause of action normally accrues when there is in existence a person who can sue and
another who can be sued, and when all the facts have happened which are material to be proved
to entitle the plaintiff to succeed." (see Halsbury's Laws of England, 3rd Ed., pages 193 and
194). In Cooke v Gill, Brett J. defined "a cause of action" to mean "every fact which is material
to be proved to entitle the plaintiff to succeed." This definition was approved by the Court of
Appeal in Read v Brown in which Lord Esher M.R. in his grounds of judgment said that it
included "every fact which it would be necessary for plaintiff to prove, if traversed, in order to
support his right to the judgment of the court.”.
(c) In Taib bin Awang v Mohamad bin Abdullah [1983] 2 MLJ 413. P was convicted in the
Kadi's court. He appealed. Before the appeal was heard he commenced an action for malicious
prosecution. P's action failed because the cause of action was incomplete.
Why was it incomplete?
(d) Assume that D promises to repay a debt he owes to P in ten instalments. D defaults after two
(2) instalments. May P immediately bring an action claiming the remaining eight (8)
instalments?
• Sio Koon Lin v S B Mehra [1981] 1 MLJ 225.
• Simetech (M) Sdn Bhd v Yeoh etc Sdn Bhd [1992] 1 MLJ 11

4.Is the plaintiff in time to sue?

(a) Periods of limitation are prescribed in many statutes e.g.:
(i)Limitation Act 1953 (Act 254);
(ii)Public Authorities Protection Act 1948 (Act 198);
(iii) Railways Act 1991 (Act 463);
(iv) Civil Law Act 1956 (Act 67);
(v)Limitation Ordinance (Cap. 72) (Sabah); and
(vi) Limitation Ordinance (Cap. 49) (Sarawak).
(b) Limitation periods under the Limitation Act 1953 (LA)
(i) Actions founded on a contract or tort - six years from the date on which the cause of action
accrued (section 6 (1) LA).
When does the cause of action accrue in –
• a breach of contract; and
• the tort of negligence?
O Pirelli Cable Works v Oscar [1983] 1 All E.R. 65;
o Cartledge v Jopling [1963] A.C. 758;
o Credit Corp v Fong Tak Sin [1991] 1 MLJ 409 (time runs although plaintiff ignorant of
defendant's identity);
o Sivapiran v Lim Yoke Kong [1992] 2 MLJ 381;
o Pang Yeow Chow v Advance Specialist Treatment
Engineering Sdn. Bhd. [2014] 8 CLJ 188.
(ii) Action upon any judgment - twelve years (12) from the date on which the judgment become
enforceable
• section 6(3) LA
(iii) Action to recover land - twelve years (12) from the date on which the right of action accrued
• section 9(1) LA
(iv) Action to recover principal secured by a charge or to enforce such charge – twelve (12) years
from the date when the right to receive the money accrued
• section 21(1) LA
(v) Fraudulent breach of trust or recovery of trust property or proceeds thereof in the possession
of trustees - no limitation
• section 22(1) LA
• Palaniappa Chettiar v Lakshamanan Chettiar [1983] 2 MLJ 177
(vi) Actions based on breaches of trust other than (v) above - six (6) years from the date on
which the right of action accrued
• section 22(2) LA
• Sok-Chun Tong v Vincent Tang Fook Lam & Anor [1999] 6 CLJ 381
(vii) Action in respect of any claim to the personal estate of a deceased person or to any share or
interest therein (whether under a will or intestacy) – twelve (12) years from the date when the
right to receive the share or interest accrued.
(viii) Set-off and counterclaim - see section 31 LA and the words "to have been commenced on
the same date as the action in which the set-off or counterclaim is pleaded".
(c) Extension of limitation in case of disability
If a right of action accrued to a person under disability the action may be brought (subject to
sections 6 (4), 8 and 29 LA) at any time before the expiration of six years when such person
ceased to be under a disability or died, whichever event first occurred, notwithstanding that
the period of limitation has expired
• section 24(1) LA
(d) Fresh accrual of action on acknowledgment (section 26 LA)
(i)Where a right of action to recover land has accrued and the person in possession
acknowledges the title of the person to whom the right accrued, the right shall be deemed to be
accrued on and not before the acknowledgement.
(ii) Where a right of action to enforce a charge has accrued and the chargee or the person liable
for the debt makes any payment, the right shall be deemed to have accrued on and not before the
date of the last payment.
(iii) Where any right of action has accrued to recover any debt or other liquidated pecuniary
claim, or any claim to the personal estate of a deceased person or to any share or interest therein,
and the person liable or accountable therefor acknowledges the claim or makes any payment in
respect thereof, the right shall be deemed to have accrued on and not before the date of the
acknowledgment or the last payment.
(iv) Every acknowledgment referred to in section 26 LA must be in writing and signed by the
person making it (section 27(1) LA).
• Tenaga Nasional Bhd v Kamarstone Sdn. Bhd. FC [2014] 1 CLJ 207
(e) Postponement of limitation period in case of fraud or mistake (section 29 LA).
(i)Where, in the case of any action for which a period of limitation is prescribed by LA, either -
• the action is based upon the fraud of the defendant or his agent or of any person through whom
he claims or his agent; or
• the right of action is concealed by the fraud of any such person as aforesaid; or
• the action is for relief from the consequences of a mistake, the period of limitation shall not
begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or
could with reasonable diligence have discovered it.
(ii) However, section 29 LA does not enable any action to be brought to recover, or enforce any
charge against, or set aside any transaction affecting, any property which -
• in the case of fraud, has been purchased for valuable consideration by a person who was not a
party to the fraud and did not at the time of the purchase know or have reason to believe that any
fraud had been committed; or
• in the case of mistake, has been purchased for valuable consideration, subsequently to the
transaction in which the mistake was made, by a person who did not know or have
(f) reason to believe that the mistake had been made.
o Beaman v A.R.T.S. [1949] 1 K.B. 550 (fraud);
o Yong & Co v Wee Hood Teck Corporation [1984] MLJ 39 (concealment)
o Shephard v Cartwright [1953] Ch. 728 (fraud andconcealment)
o Phillips-Higgins v Harper (1954) 1 Q.B. 411 (mistake)
o Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409 (failure to add a party within
the limitation period is not within section 29 LA)
o RB Policies v Butler [1950] 1 KB 76
o Sivaperan v Lim Yoke Kong [1992] 2 MLJ 318 ("fraud" not limited to common law fraud or
deceit; unconscionable conduct may be fraud)
(g) Public Authorities Protection Act 1948 (PAPA)
• Section 2 PAPA reads as follows:
"2. Where, after the coming into force of this Act, any suit, action, prosecution or other
proceeding is commenced in the Federation against any person for any act done in pursuance or
execution or intended execution of any written law or of any public duty or authority or in
respect of any alleged neglect or default in the execution of any such written law, duty or
authority the following provisions shall have affect -
(a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced
within thirty-six months next after the act, neglect or default complained of or, in the case of a
continuance of injury or damage, within hirty-six months next after the ceasing thereof...".
• Lee Hock Ning v Govt of Malaysia [1972] 2 MLJ 12;
• Phua Chin Chew & Ors v K.M. & Ors. [1987] 2 MLJ 604;
• Wee Choo Keong v Ketua Pengarah Perkhidmatan Awam Malaysia [2014] 9 CLJ 90
(h) See also sections 7(5) (dependency claim) and 8(3) (claim in tort against the estate of a
deceased person) of the Civil Law Act 1956 (CLA)
• Kuan Hip Peng v Yap Yin & Another [1965] MLJ 252
(i) Limitation must be pleaded (see section 4 LA and O. 18 r. 8 ROC)
• Tham Kok Onn v Perwira Habib Bank Malaysia Bhd (2004) 4 CLJ 818
• TASJA Sdn. Bhd. v Golden Approach Sdn. Bhd. [2011] 3 CLJ 751
(j) No power to extend time when limitation period has expired:
• Lee Lee Cheng v Seow Peng Kwai (1960) MLJ 1.
5. Arbitration
• Section 10 Arbitration Act 2005 – stay of legal proceeding pending arbitration.
See Press Metal Sarawak Sdn. Bhd. v Etiqa Takaful Bhd [2016] 9 CLJ 1, FC; Arch Reinsurance
Ltd v. Akay Holdings Sdn Bhd [2019] 1 CLJ 305, FC
See also
Elf Petroleum v Winelf Petroleum [1986] 1 MLJ 177
Seng Hup Guan Co v Sri Tinusa Sdn Bhd [1986] 1 MLJ 345
Lai Siew Wah Sdn. Bhd. v Ng Chin [1988] 1 MLJ 393 (the situation where the respondent alleges
fraud)
Hashim bin Majid v Param Cumaraswamy & Ors [1993] 2 MLJ 20
Thamesa Designs Sdn Bhd & Ors v Kuching Hotels Sdn Bhd [1993] 3 MLJ 25 (lack of
jurisdiction must be raised early in the proceedings: too late at the stage of appeal).
Seloga Jaya Sdn Bhd v Pembinaan Keng Ting (Sabah) Sdn Bhd [1994] 2 MLJ 97.

6. Locus standi
• See Mohamed b Ismail v Tan Sri Osman [1982] 2 M.L.J. 133; 177 (FC)
Atip bin Ali v Josephine Doris Nunis [1987] 1 MLJ 82
• Govt of Malaysia v Lim Kit Siang [1988] 2 MLJ 12

7. Res Judicata
• Joseph Paulus Lantip v Unilever PLC [2012] 7 CLJ 693
• Ibig @ David Rampas v Terisah Bahan [2016] 8 CLJ 790
• Malpac Capital Sdn Bhd v Yong Toi Mee [2016] 8 CLJ 613
• Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd [2018] 6 CLJ 271

8. Regard shall be to justice and effect of non-compliance with rules

• O. 1A and O. 2 ROC
• United Malayan Banking Corp Bhd v Ernest Cheong Yong Yin [2001] 2 CLJ 31 CA
• Megat Najmuddin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd
[2002] 1 CLJ 645 FC
• Beaufort Baru Sdn Bhd v Gopalan Krishnan VK Gopalan [2003] 3 CLJ 868 HC
• Megnaway Enterprise Sdn Bhd v Soon Lian Hock [2003] 5 CLJ 103 HC
• Terrence Simon Marbeck v Kerajaan Malaysia [2003] 6 CLJ 120 HC
• Tudingan Timur Sdn. Bhd. v Che Mat bin Padali [2013] 6 AMR 32
• Duli Yang Maha Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v Datuk Captain
Hamzah Mohd Noor [2009] 4 CLJ 329 - not applicable when the compliance of rules is
mandatory
• Rule 3A Rules of the Court of Appeal 1994.

II. CIVIL COURTS AND THEIR JURISDICTION

1. In which court should the action be commenced?
2. Civil Courts of original jurisdiction
(a) Magistrates' Court;
(b) Sessions Court;
(c) High Court; and
(d) Special Courts/Tribunals.
3. The Subordinate Courts
(a) Magistrates’ and Sessions Court; and
(b) Both have no jurisdiction at all in respect of certain matters - see section 69 and section 93
SCA.

4. Magistrates’ Court
(a) Subject to the limitations above, a First Class Magistrate has jurisdiction to try all actions
"where the amount in dispute or value of the subject-matter does not exceed one hundred
thousand ringgit" (section 90 SCA).
(b) For jurisdiction of a Second Class Magistrate, see section 92 SCA. See matters triable by
Second Class Magistrate in Practice Direction 6/1987.
5. Sessions Court
(a) Subject to section 69 SCA, a Sessions Court has jurisdiction to try all actions and suits
"where the amount in dispute or value of the subject-matter does not exceed one million ringgit
and also jurisdiction to try all actions and suits of a civil nature for the specific performance or
rescission of contracts or for cancellation or rectification of instruments, within the jurisdiction
of the Sessions Court" (section 65 SCA).
• BNM v G. Glesphy [1992] 1 MLJ 151.
(b) A Sessions Court may, in respect of any action or suit within the jurisdiction of the Sessions
Court, in any proceedings before it (i) grant an injunction; and
(ii) make a declaration, whether or not any other relief, redress or remedy is or could be claimed
[section 65(5) SCA].
(c) See section 65(1)(a) SCA- unlimited jurisdiction in respect of motor vehicle accidents,
landlord and tenant and distress.
(d) Where the claim exceeds the value limits prescribed in the Act, the parties may consent that
the Sessions Court shall have jurisdiction to try the action or suit. The agreement must be in
writing and filed in the Sessions Courts, see section 65(3) & (4) SCA). For Magistrates’ Court,
see section 93(1) SCA.
6. Interest
• Foo Sey Koh & Ors v Chua Seng Seng & Ors [1986] 1 MLJ 501.
7. A plaintiff may relinquish any portion of his claim in order to bring the action or suit within
the jurisdiction of the Sessions or Magistrates' Court (sections 67 and 93(1) SCA). But claims
may not be split for this purpose (section 68 SCA).
8. Defence or counterclaim involves matters beyond the jurisdiction or exceeds the value
limits of the Sessions Court (section 66 SCA).
• Either party may apply to the High Court to have the action transferred.
• Procedure for application.

9. Immovable property
(a) The general rule
• section 69(a) SCA
(b) See section 70(1) SCA - "jurisdiction to hear and determine any action or suit for the
recovery of immovable property".
(c) Claim for rent, mesne profits or damages arising from the defendant holding over or resisting
the plaintiff's right of possession and damages for breach of any covenant or agreement in
relation to the premises
may be added
• section 70(2) SCA). Subsection 70(3) SCA repealed w.e.f. 24.6.1994.
(d) No jurisdiction if, in the opinion of the Court, there is a bona fide question of title involved.
• Hiew Kim Swee v G.C. Gomez (1955) MLJ 170.
The question as to whether there is a bona fide question of title involved is not to be decided on
the pleadings alone but on the proceedings as a whole.
• SeeThompson J's three illustrations in Hiew Kim Swee's case (p. 174 of the judgment).
(e) Sessions Court has jurisdiction to adjudicate on title to immovable property with the consent
of the parties
• section 71 SCA
(f) See the special position of Sarawak in section 71A SCA.
(g) Jurisdiction of Magistrates' Court -
• section 93 (1) SCA.
10. Interpleader proceedings in the Subordinate Courts
• Sections 73 and 93 SCA.
11. Territorial jurisdiction of the Subordinate Courts
• Third Schedule SCA.
12. High Court
(a) Two High Courts of co-ordinate jurisdiction and status, namely High Court in Malaya and
High Court in Sabah and Sarawak (see Article 121(1) of the Federal Constitution (FC)).
Jurisdiction limited by Article 128 FC (validity of written law made by Parliament or State;
dispute between Federation and states and between one state and another) and Article 130 FC
(interpretation of Constitution referred by the Yang di-Pertuan Agong).
• Kaliammal Sinnasamy v Majlis Agama Islam Wilayah Persekutuan (JAWI) & Ors [2011] 2
CLJ 165 in respect of Article 121 (1A) FC
(b) For the "local jurisdiction" of each High Court, see section 3 of the Courts of Judicature Act
1963 (JCA).
• Syarikat Nip etc Contractor v Safety and General Insurance Co Sdn Bhd [1975] 2 MLJ 115;
• Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268 (each branch of the High
Court has concurrent jurisdiction; but defendant must not be put to inconvenience).
• See O. 92 r. 3A ROC - on transfer of proceedings.
(c) Civil jurisdiction of the High Court (sections 23 and 24 CJA).
(d) Section 23 CJA.
• Lam Kok Trading v Yorkshire Switchgear [1976] 1 MLJ 239. In this case the contract was
made outside jurisdiction. Thedefendant did not reside or have his place of business within the
jurisdiction. The alleged breach of contract occurred outside the jurisdiction.
• BBMB v ITC [1989] 1 SCR 598 (application of section 23(1)(b) SCA - "defendant or one of
several defendants resides or has his place of business ..."). See also Mee Ying etc v Che Jah bte
Abdullah [1992] 2 MLJ 263.
• Distillers Biochemicals v Thompson [1971] A.C. 458 (P.C.). An English company
manufactured and sold in England to an Australian company a preparation known as Distival, the
principal ingredient of which was thalidomide. The English company neither warned the
Australian company nor on the printed matter supplied with the drug warned a possible
purchaser of the harmful effect on a foetus if the drug were taken by a pregnant woman. The
plaintiff's mother, whilst pregnant, purchased the drug in New South Wales. The plaintiff was
born with defective eyesight and without arms. The plaintiff proceeded against the English
company in the Supreme Court of New South Wales. The company filed a conditional
appearance and applied for the writ to be set aside on the ground that the court had no
jurisdiction because the claim was not "a cause of action which arose within the jurisdiction"
under section 18(4) of the Common-Law Procedure Act of New South Wales. The application
was dismissed by the Supreme Court and that decision was upheld by the Court of Appeal. On
appeal to the Privy Council it was held that "cause of action" in section 18(4) of the Common-
Law Procedure Act meant "the act on the part of the defendant which gave the plaintiff cause of
complaint" and, since the complaint that the English company failed to warn the plaintiff's
mother of the dangers of taking the drug occurred when she purchased the drug in New South
Wales, the plaintiff's cause of action arose within the jurisdiction.
• PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun [2018] 1 AMR 641. The High
Court will have jurisdiction if the Plaintiff’s claim falls within any one of the sub-paragraphs to
Section 23(1) CJA.
(e) Choice of law clause does not oust jurisdiction
• Elf Petroleum v Winelf Petroleum [1986] 1 MLJ 177
• American Express etc v Tan Loon Swan [1992] 1 MLJ 727
• The Fehmarn [1958] 1 W.L.R. 159; The Eleftheria [1970] P. 94
III. CIVIL JURISDICTION OF THE COURTS
1. Civil Jurisdiction of Sessions Court
(a) Section 69 SCA:
“Sessions Court shall have no jurisdiction in actions, suits or proceedings of a civil nature -
(a) relating to immovable property except provided in sections 70 and 71;
(b) to enforce trusts;
(c) for accounts;
(d) for declaratory decrees except in making a declaration under paragraph 65(5)(b) and
interpleader proceedings under section 73;
(e) for the issue or revocation of grants of representation of the estates of deceased persons or the
administration or distribution thereof;
(f) wherein the legitimacy of any person is in question;
(g) except as specifically provided in any written law for the time being in force, wherein the
guardianship or custody of infants is in question; and
(h) except as specifically provided in any written law for the time being in force, wherein the
validity or dissolution of any marriage is in question”.
(b) Section 70 SCA: “(1) Subject to subsection (4), a Sessions Court shall have jurisdiction
to hear and determine any action or suit for the recovery of immovable property, and thereupon
to issue an order to the proper officer of the Court to put the plaintiff in possession of the
property.
(2) In any such action or suit, there may be added a claim for rent or mesne profits and for
damages arising to the plaintiff from the defendant holding over or resisting his right of
possession or re-entry and for damages for breach of any covenant, condition or agreement in
relation to the premises.
(3) Repealed by Act A887/94.
(4) Except as provided in section 71, the aforesaid jurisdiction shall not be exercised in any case
where, in the opinion of the Court, there is a bona fide question of title involved and, subject to
that section, recovery of possession of any immovable property under this section shall be no bar
to the institution of an action, suit or proceeding of a civil nature in the High Court for trying the
title thereto.”
(c) Section 71 SCA:
“If, in any action or suit before a Sessions Court, the title to any immovable property is disputed,
or the question of the ownership thereof arises, the Court may adjudicate thereon if all parties
interested consent; but, if they do not all consent, the President of the Sessions Court shall apply
to the High Court to transfer the action or suit to itself.”
(d) Section 71A SCA:
“Sections 70 and 71 shall not apply to any action or suit concerning land in Sarawak to which
there is no title issued by the Land Office in Sarawak and in which all the parties are subject to
the same native system of personal law.”
(e) Section 72 SCA:
“A Sessions Court shall have jurisdiction to issue writs or warrants of distress for rent.”
(f) Section 101A SCA:
“A Sessions Court Judge shall have the power to hear any matter or proceedings in chambers.”
(g) Third Schedule:
“SUBORDINATE COURTS ACT, 1948 THIRD SCHEDULE
[Section 99A] ADDITIONAL POWERS OF SESSIONS COURTS AND MAGISTRATES'
COURTS
2. Power to stay proceedings unless they have been instituted in the District in which
3. (a) the cause of action arose; or
(b) the defendant resides or has his place of business; or
(c) one of several defendants resides or has his place of business;
or
(d) the facts on which the proceedings are based exist or are alleged to have occurred; or
(e) for other reasons it is desirable in the interest of justice that the proceedings should be had.”.
2. Civil Jurisdiction of Magistrates
(a) Section 90 SCA: “Subject to the limitations contained in this Act, a First-Class Magistrate
shall have jurisdiction to try all actions and suits of a civil nature where the amount in dispute or
value of the subject-matter does not exceed one hundred thousand ringgit.”;
(b) Section 93 SCA:
“(1) Subsections 65(3) and (4) and of sections 66 to 70 and 72 to 74 shall apply mutatis mutandis
to Magistrates' Courts: Provided that for the purpose of proceedings in Magistrates' Courts,
paragraph 73(b) shall be read as if the words "one hundred thousand" were substituted for the
words "one million".
(2) Nothing in this section shall operate to extend the jurisdiction of Second Class Magistrates as
otherwise limited by this Act.”.
3. Civil Jurisdiction of High Court
Section 23 of the Courts of Judicature Act 1964 provides as follows:
“Section 23. Civil Jurisdiction of High Court – General
(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; or
(b) the defendant or one of several defendants resides or has his place of business; or
(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.
(2) Without prejudice to the generality of subsection (1), the High Court shall have such
jurisdiction as was vested in it immediately prior to Malaysia Day and such other jurisdiction as
may be vested in it by any written law in force within its local jurisdiction.”.
• Goodness for Import and Export v Phillip Morris Brands Sarl [2016] 7 CLJ 303, FC
• Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd [2016] 4 CLJ 641,
FC – in relation to the definition of “local jurisdiction”)

Any queries kindly email me at noordzuhaidah@usim.edu.my.

THANK YOU.