Topic 2 Civil Courts and Their Jurisdiction

Introduction
Jurisdiction of the civil courts in Malaysia is provided by the
i) Courts of Judicature Act 1964 (CJA) and
- Govern matters concerning the organization, jurisdiction, power and administration of the
superior courts in Malaysia.
- HC  CA  FC

ii) Subordinate Courts Act 1948 (SCA).

- Govern matters concerning the organization, jurisdiction, power and administration of the
subordinate courts in Malaysia.
- Penghulu’s Court, Magistrates’ Court (First class and Second class) & Sessions Court
- Deals largely with the scope of application, general interpretation and establishment of the civil
and criminal subordinate courts.

Basically the court system in Malaysia consists of the subordinate courts and the High Courts. Both the
subordinate courts and the high courts have their own jurisdiction. There are 2 jurisdictional considerations
for the courts:
i) subject matter (also known as monetary jurisdiction)
ii) territorial
Note: Civil courts having original jurisdiction are the Penghulu’s Courts, Magistrates’ Courts, Sessions
Court, HC and Special Courts or Tribunals.

Subordinate Courts
Consists of 3 courts and can de differentiate base of subject matter jurisdiction
a) Penghulu’s court
s94 – Maximum claim of RM50for liquidated damages.

b) Magistrates’ court
Consists of 2 types, which is determine by monetary jurisdiction
i) First class Magistrates’ Court
s90 – Not more than RM100k

ii) Second class Magistrates’ Court

s92 – Not more than RM10k for the recovery of debt or liquidated demand

c) Sessions court
 General Jurisdiction
s65 Civil jurisdiction of Sessions Courts.
(1) Subject to the limitations contained in this Act, a Sessions Court shall have -
(a) unlimited jurisdiction to try all actions and suits of a civil nature in respect of motor vehicle
accidents, landlord and tenant and distress; and
(b) jurisdiction to try all other actions and suits of a civil nature where the amount in dispute or the
value of the subject-matter does not exceed two hundred and fifty thousand ringgit.
(2) (Repealed).
(3) When the parties to an action or suit which, if the amount in dispute or value of the subject-matter
thereof did not exceed the limit of the jurisdiction, would be cognizable by a Sessions Court, have
entered into an agreement in writing that the Sessions Court shall have jurisdiction to try the action or
suit, the Sessions Court shall have jurisdiction to try the same, although the amount of the subject-
matter thereof may exceed the value limit of jurisdiction.
(4) Every such agreement shall be filed in the Sessions Court and, when it is so filed, the parties to it shall
be subject to the jurisdiction of the Sessions Court.

s65(1)(a) – unlimited jurisdiction

s65(1)(b) – not exceed RM 1 mil
s65(3) – If the amount exceeds RM1 mil, the parties may consent in writing to have the Sessions
Court to try the matter. But the monetary award to be awarded is still up to RM250k only.

1
 Defence or counterclaim exceeds RM250k
s66 Counterclaims in Sessions Courts and transfers therefrom.
(1) Where in any action or suit of a civil nature before a Sessions Court any defence or counterclaim of
the defendant involves matters beyond the jurisdiction of the Court, the defence or matter shall not
affect the competence or the duty of the Sessions Court to dispose of the whole matter in controversy,
so far as relates to the demand of the plaintiff and any defence thereto, but no relief exceeding that
which the Court has Jurisdiction to award shall be given to the defendant upon the counterclaim.
(2) In any such case the High Court may, if it thinks fit, on the application of any party, order that the
action or suit be transferred to the High Court, and the action or suit shall then be entered in the cause
book or register of civil suits of the High Court, and proceeded with as if the action or suit had been
originally instituted therein.

- The Sessions Court may proceed to dispose the matter but the award may not exceed RM250k.
- Therefore, either party may apply to the HC by way of OS to get the matter transferred.
- Once HC orders the case to be transferred, D must serve the order on the Sessions Court.
- Sessions court would then send the matter to HC [O47r6 SCR 1980]

 Split of claim
s68 Splitting claims not allowed. Claims may not be split, nor more than one action or suit of a civil nature
brought in respect of the same cause of action against the same party.

Split of claim with the same COA is not allowed. BUT the P may relinquish any portion of his claim
to be brought within Sessions Court jurisdiction (s67 SCA)

 Exceptions
Circumstances whereby the action must be instituted in the HC, despite of the facts that the amount
in dispute is within the jurisdiction of the Sessions Court.
s69 Exceptions to jurisdiction. Sessions Courts shall have no jurisdiction in actions, suits or proceedings of
a civil nature -
(a) relating to immovable property except as provided in sections 70 and 71;
(b) for the specific performance or rescission of contracts;
(c) for an injunction;
(d) for the cancellation or rectification of instruments;
(e) to enforce trusts;
(f) for accounts;
(g) for declaratory decrees except in interpleader proceedings under section 73;
(h) for the issue or revocation of grants of representation of the estates of deceased persons or the
administration or distribution thereof;
(i) wherein the legitimacy of any person is in question;
(j) except as specifically provided in any written law for the time being in force, wherein the guardianship
or custody of infants is in question;

s69(a) – Matters relating to immoveable property except as provided in s70 & s71 SCA.
s70 Recovery of immovable property.
(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 reentry,
and for damages for breach of any covenant, condition or agreement in relation to the premises.
(3) (Repealed by Act A887).
(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.

s71 Jurisdiction to adjudicate on title to immovable property with consent of parties.

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 Sessions Court Judge shall apply to the High Court to transfer the action
or suit to itself.

Furthermore, Sessions court shall have no jurisdiction in the validity or dissolution of marriage

2
▪ Hiew Kim Swee v GC Gomez (1955) MLJ 170
Held: The question 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.

▪ Wawasan Cempaka Sdn Bhd v BIMB [1996] 3 MLJ 317, CA

AP without RP’s knowledge (registered proprietor), occupied the land and erected an illegal
structure. RP received a notice from Dewan Bandaraya Kuala Lumpur to demolish the structure,
failing which legal action would be taken. AP refused to vacate and RP filed an application for
summary judgment in Sessions Court for recovery of the land, damages and costs. RP applied to
have action stuck out as Sessions Court had no jurisdiction to hear the action.
Sessions Court: Dismissed RP’s application, allowed AP’s application to strike out, but refused
to allow any costs to AP. RP appealed to the HC.
HC: By virtue of s70 SCA 1948, the Sessions Court had jurisdiction to order delivery of vacant
possession of lands where there was no bona fide dispute as to ownership. Appeal allowed.

AP appealed contending that s65 and s69 SCA, s70 thereof did not give jurisdiction to the
Sessions Court to order delivery of vacant possession of immovable property, unless there is a
landlord and tenant relationship, and the amount in dispute did not exceed RM250k.
Held: Appeal dismissed.
1. The plain meaning of s70 SCA is that a Sessions Court shall have jurisdiction to hear and
determine any action for the recovery of immovable property and thereupon to order the
proper officer of the court to put P in possession. s70(1) confers jurisdiction regardless of
the value of that immovable property, even if it is worth more than RM250k.
2. s70 stands independent of s65. The effect of s70(2) SCA is that in any such action there may
be added a claim for rent or mesne profits or for damages. Although the reference to rent or
mesne profits in s70(2) envisages a tenant who is wrongfully holding over, the words
‘damages arising to P from D holding over or resisting his right of possession’ clearly refer
to damages for the trespass which can be added to the claim for recovery of possession from
a trespasser.
3. Since s70(3) SCA has been deleted, if the money claimed arises from and is directly
connected with the wrongful occupation of the property, the jurisdiction of the Sessions
Court is unlimited.
4. It seems abundantly clear that s69(a), while prohibiting Sessions Court from hearing civil
suits relating to immovable property, included an exception in that subsection itself by
providing the phrase ‘except as provided in s70 and s71’ and as can be seen, s70 expressly
and specifically gives such jurisdiction to the Sessions Court.
5. The only restriction appear to be as provided in the present s70(4) which provides that such
jurisdiction shall not be exercised where in the opinion of the court, there is a bona fide
question of title involved. From this, it seems clear that the Sessions Court is clothed with
the jurisdiction to order delivery of vacant possession of immovable property irrespective of
the value of the claim, unless there is, in the opinion of the court, bone fide question of title
involved. From the facts of the case, clearly there was no such dispute or question.

3
Issues relating to Monetary Jurisdiction of the Subordinate Courts
- How to determine the amount claimed?
- What if the interest claim would result that the total cumulative amount exceeds the subordinate’s court
jurisdiction?

▪ Foo Seng Koh & Ors v Chua Seng Seng [1986] 1 MLJ 501
Held: The contractual prejudgement interest must be added when determining in which court the
action is to be instituted. The amount of post judgement interest is irrelevant

Example:
If the amount owing is RM23k but the outstanding interest is RM5k, the Magistrates’ court has no
jurisdiction to try the case. If the amount owing is RM 23k but the outstanding interest is RM2k, the
Magistrates’ court has jurisdiction to try the case.

Thus, if the principal amount owing and the outstanding interest does not exceed the monetary jurisdiction
of the court at the time when the matter is being filed, the court shall have jurisdiction to try the matter.

Territorial Jurisdiction of the Subordinate Court

s99A Further powers and jurisdiction of courts. In amplification and not in derogation of the powers conferred by this
Act or inherent in any court, and without prejudice to the generality of any such powers, every Sessions Court and
Magistrates' Court shall have the further powers and jurisdiction set out in the Third Schedule.

3rd Schedule, Rule 2 Stay of proceedings.

(1) Power to stay proceedings unless they have been instituted in the District in which-
(b) the cause of action arose;
(c) the defendant resides or has his place of business;
(d) one of several defendants resides or has his place of business.
(e) the facts on which the proceedings are based exist or are alleged to have occurred; or
(f) for other reasons it is desirable in the interests of justice that the proceedings should be had.

Briefly
i) where cause of action arises
ii) where D resides / has his place of business
iii) where one of the several D resides / has his place of buss
iv) the fact which the proceedings are based to exist or are alleged to have occurred
v) in the interest of justice

Thus, a suit in any of the subordinate’s courts can be instituted in the district, for any of 5 reasons mentioned
above.

Mutatis Mutandis provision

s93 Provisions of Act relating to Sessions Courts applicable to Magistrates' Courts.
(1) The provisions of section 65 (3) and (4) and of sections 66 to 70 and 72 to 74 shall apply mutatis
mutandisto Magistrates' Courts:
Provided that for the purpose of proceedings in Magistrates' Courts, section 73 (b) shall be read as if
the words "twenty five thousand" were substituted for the words "two hundred and fifty thousand".
(2) Nothing in this section shall operate to extend the jurisdiction of Second Class Magistrates as
otherwise limited by this Act.

s93(1) – meaning, s65(3)-(4), s66-s70, s72-s74 are also applicable to the Magistrates’ Court.

4
The High Court
Art 121 FC – There are 2 high courts of coordinate jurisdiction & status, i.e. HC of Malaya & HC of Sabah
& Sarawak. Coordinate means both HC have equal status and one is not superior to the other.

Concurrent jurisdiction means that all branches of HC have equal status and not one is superior to the other.

Definition for
s3 “local jurisdiction” means -
(a) in the case of the High Court in Malaya, the territory comprised in the States of Malaya, namely, Johore, Kedah,
Kelantan, Malacca, Negeri Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Trengganu and the Federal
Territory of Kuala Lumpur; and
(b) in the case of the High Court in Sabah and Sarawak, the territory comprised in the States of Sabah, Sarawak
and the Federal Territory of Labuan,
including, in either case, the territorial waters and the air space above those States and the territorial waters;

“High Court” means the High Court in Malaya and the High Court in Sabah and Sarawak or either of them, as the
case may require

Monetary or Subject Matter Jurisdiction

 Rm 1 mil

Territorial or Local Jurisdiction

The term territorial jurisdiction is synonymous with territorial jurisdiction and is merely to determine which
branch of HC may hear the matter.

In deciding the jurisdiction of the courts there are 2 issues to be considered:

i) Which HC to commence an action?
Art 121 FC – HC Malaya or HC Sabah & Sarawak
(As discussed above)

ii) Which branch of the HC is the action to be instituted?

s23(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;
(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.

▪ Distillers Biochemicals v Thompson (1971) AC 458, PC

An English company manufactured a new drug and sold it in Australia. It was never warned that
drug have an effect on a foetus if consumed by a pregnant women. P’s mother while pregnant
purchase the drug in New South Wales. P was born with defective eyesight and without arms. P
instituted proceedings against the company in the SC of New South Wales. Company applied to
have the suit set aside on the grounds that the court had no jurisdiction because the claim was not ‘a
cause of action that the court had no jurisdiction’.
Held: A ‘cause of action’ as seen in s18(4) Common Law Procedure of New South Wales meant
‘the act on the part of D which gave P cause of complaint’. Since the complaint of the failure to
warn P’s mother of the dangers of taking the drug occurred when she purchased the drug in New
South Wales. P’s cause of action did indeed arise within the jurisdiction of the court.

▪ Syarikat Nip Kui Cheong Timber Contracts v Safety & General Insurance [1975] 2 MLJ 115
P are a firm of contractors having place of business in Tawau. D is an insurance company having
their registered office in KL.
Issue: Whether P who have their place of business in Tawau can sue D in Peninsular Malaysia?
Held: HC of Malaya and HC of Sabah and Sarawak have separate and distinct jurisdiction.
Therefore the matter falls within the jurisdiction of the HC of Sabah and Sarawak and ought to be
resolved in that jurisdiction. There cannot be cross-over between the 2 HC.

5
▪ Lam Kok Trading v Yorkshire Switchgear [1976] 1 MLJ 239
The contract was made outside the jurisdiction i.e. England. D did not reside or have his place of
business within the jurisdiction of the court. Further the alleged breach of contract occurred outside
the jurisdiction as well.
Held: Court had no jurisdiction with the matter.

▪ Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268
P (Sova) instituted the present civil suit in the HC of Alor Setar against D (Kasih Sayang) alleging
that D has committed a breach of a SPA entered on 13/3/1984. The cause of action had arisen in
Penang while the parties are located in KL. D contended that the HC of Alor Setar has no
jurisdiction to determine the dispute between the parties or alternatively that this court is not the
proper and convenient forum to determine the dispute between the parties;
Held: A HC located at Penang or at Alor Setar is but a branch of the HC in Malaya and each branch
of the HC in Malaya located in any state has concurrent jurisdiction to entertain any civil
proceedings regardless of whether the cause of action arose in another state.
The present court certainly has jurisdiction to entertain the present civil proceedings, however, the
present civil proceedings should not be dealt with by this court as D must not be put to
inconvenience.

▪ BBMB v ITC (1989) 1 SCR 598

Held: The jurisdiction of the courts over persons is territorial. It is restricted to those upon whom its
process may be served within the territorial jurisdiction of the Courts.

‘Local jurisdiction’ sets out territorial jurisdiction of the courts. Each HC branch has jurisdiction over
disputes that arise within its territory.
▪ Malacca Securities v Loke Yu [1998] 3 CLJ 22, HC Melaka
P is a licensed stockbroker in Melaka while D who hails from KL, operated an account with the
plaintiff and used its services for transacting in shares. P claimed that D owed him a sum of monies
under the said account and filed a suite in the HC of Melaka to claim the allegedly owed sum. D
denied the claim and filed a counterclaim against a third party. D also applied under s23(1)(a)-(b)
CJA1964 to have the suit transferred to the HC in Malaya at KL, on the ground that the latter court
was the more appropriate forum to hear and preside over the suit. P sought to oppose the application,
and argued in its opposing affidavit that the HC in Malaya at Melaka ought to be the most
appropriate forum to hear the suit, as the transactions were carried out in Melaka, the cause of action
arose in Melaka and the witnesses were also mostly from Melaka.
Issues:
i) Whether a branch High Court has power to transfer a proceeding pending before it to another
branch High Court?
ii) Whether the HC in Malaya at Melaka could decline to exercise the jurisdiction to hear the suit in
question on the ground that the suit, by virtue of the doctrine of forum convenience, should be
heard in another branch HC?
Held: Application dismissed.
1. A plaintiff is entitled to file an action in any branch of the HC in Malaya regardless of whether
the cause of action arose in another state. This court therefore has jurisdiction to entertain the
present action even if D is correct in his submission that the cause of action arose in KL coupled
with the fact that he resides there also. However, the fact that the court has jurisdiction to hear
the dispute is not the end of the matter. The critical issue for determination is whether this court
is the forum convenience to hear the dispute notwithstanding the fact that it has jurisdiction to
do so.
2. For all practical purposes the branch HC can be considered as having their own jurisdiction. It
would be oppressive and vexatious to commence proceedings in a particular branch when it
could have been more suitably or appropriately commenced in another branch. It would amount
to a defendant being improperly vexed by legal procedure if a plaintiff is to be allowed to
choose a branch HC of his choice by virtue of the local jurisdiction of the HC in Malaya. It is
part of the general jurisdiction of the court to prevent such abuse. An action should be filed and
heard in the proper branch of the HC in Malaya.

6
 3. It follows that a branch HC can decline to exercise its jurisdiction even when the other forum is
another branch court. In declining to exercise jurisdiction, however, a court does so not on
grounds of convenience but of the suitability or appropriateness of another tribunal in the
interests of all parties and for the ends of justice. It would constitute very strong grounds for the
court to decline to exercise its jurisdiction to hear the case in cases where an action is filed in the
wrong branch of the HC.
D had conducted his share transactions in Melaka. The amount due on the account is therefore
payable in Melaka. In the circumstances, the breach in payment of the sum due must have occurred
in Melaka. P’s cause of action therefore arose in Melaka. P’s case also comes within s23(1)(c) of
s23(1) as the facts on which the action is based occurred in Melaka. As P has brought itself within
s23(1)(a) & (c) of the CJA it is entitled to file this action in Melaka notwithstanding the fact that D
resides in Kuala Lumpur.

Obiter dictum: The fact that the power conferred by para 12 cannot be exercised does not mean that
a party who wishes to have a case transferred from one branch of the HC to another branch is
without remedy. He may obtain the desired result in accordance with s20 CJA, by which the Chief
Judge may direct that a particular case shall be heard by a particular HC judge.

‘Choice of Law’ Clause

If there is any choice of law clause in a contract, that clause shall not oust the jurisdiction of the courts to
hear a particular matter.

Thus, a choice of law clause could not oust the jurisdiction of Malaysia court to try an action arising out of
the agreement. Further, where claim is admitted, it does not call for a settlement by arbitration.

▪ ELF Petroleum v Winelf Petroleum [1986] 1 MLJ 177

P (Singaporean Co.) had supplied petroleum products to D. When P demanded payment D agreed to
clear debts within 5 years. This was not acceptable to P who brought an action against D who
applied for the action to be struck out because under the agreement it was alleged that the Malaysian
courts have no jurisdiction to hear the matter because of the arbitration clause in the agreement.
Held: The parties had only agreed that Singapore law would govern any dispute. This did not oust
the jurisdiction of the Malaysian courts to try an action arising out of the agreement. Also, where a
claim is admitted it does not call for a settlement by arbitration.

Parties to an agreement can include a clause choosing the law of a particular country upon which the matter
should be adjudicated upon but the parties cannot oust the jurisdiction of the courts.

▪ American Express International Banking Corp v Tan Koon Swan[1992] 1 MLJ 727
AP (Singapore bank) had granted facilities to a Singapore registered Co. The facilities were secured
by a guarantee given by 2 persons, including RP. The Co. defaulted and AP demanded payment of
the loan plus interest from RP. AP subsequently filed a claim against RP claiming the sum due.
Held: On the preliminary objection that the courts in Malaysia have no jurisdiction over the matter
as it was stated in the general loan and collateral agreement that the agreement was to be construed
according to the laws of Singapore. In this case, RP had clearly submitted to the jurisdiction of the
Malaysian courts by entering his appearance and filling his defence to the action and in any case
there was no reason why a court in this country where RP resides is not the convenient forum to hear
and adjudicate the matter. Even if it was necessary for a court in this country to form a point of
foreign law, s45 EA 1950 can be applied in that experts can be called.