Chapter 3 - Jurisdiction (Pending Statutory Provision)

Question 1

JURISDICTION

Overview

Answer 1

1) Jurisdiction of Subordinate court

2) Jurisdiction of High Court

Question 2

JURISDICTION OF SUBORDINATE COURT

Overview

Answer 2

1) Monetary jurisdiction
2) Subject-matter jurisdiction
3) Territorial jurisdiction

Question 3

MONETARY JURISDICTION OF SUBORDINATE COURT

Overview

Answer 3

1) First class Magistrate
2) Second class Magistrate
3) Sessions Court
4) Whether it oust jurisdiction of HC
5) Whether interest should be included in the amount
6) Order of & procedure to transfer by HC
7) Relinquish part of or splitting claims

Question 4

MONETARY JURISDICTION OF SUBORDINATE COURT

First class Magistrate

Answer 4

S.90 SCA:

-

Question 5

MONETARY JURISDICTION OF SUBORDINATE COURT

Second class Magistrate

Answer 5

S.92 SCA:

-

Question 6

MONETARY JURISDICTION OF SUBORDINATE COURT

Sessions court

Answer 6

S.65 SCA:

-

Question 7

MONETARY JURISDICTION OF SUBORDINATE COURT

Whether existence of specific provision for court to try the case will oust the jurisdiction of HC

Answer 7

1) S.7 C(A)A:

Notwithstanding anything contained in any written law to the contrary, the Sessions Court shall have jurisdiction in all civil proceedings which arise from or relate to a scholarship agreement.

2) BNM v Gerald Glesphy:

• S.7 of Contracts (Amendment) Act read together with S.23 CJA does not oust the jurisdiction of the High Court to try scholarship agreement cases.
• Therefore, both Sessions & High Court shall have the jurisdiction to try scholarship agreement cases.

Question 8

MONETARY JURISDICTION OF SUBORDINATE COURT

Whether interest should be included in the amount

Answer 8

Foo Sey Koh v Chua Seng Seng:

• Interest shall not be included in determining the jurisdiction unless the interest has already been contractually agreed.

Question 9

MONETARY JURISDICTION OF SUBORDINATE COURT

Order of & procedure to transfer

Answer 9

1) S.66(2) SCA: order of transfer by High Court.
- HC can order a matter to be transferred to itself where P’s claim or D’s counterclaim exceeds monetary jurisdiction of SC.
2) Procedures for transfer: O.57, r.1(2)

Question 10

MONETARY JURISDICTION OF SUBORDINATE COURT

Relinquishing part of & splitting claims

Answer 10

1) S.67: relinquishing part of claims.
- P may relinquish portion of his claim to bring the matter within the jurisdiction of SC.
2) S.68: splitting claim is not allowed.
- S.68 prohibits splitting the claims in respect of the same cause of action.

Question 11

SUBJECT-MATTER JURISDICTION OF SUBORDINATE COURT

Overview

Answer 11

1) The jurisdiction
2) Jurisdiction as to immoveable property
3) Power to grant discretionary reliefs
4) Power to grant reliefs by way of interpleader

Question 12

SUBJECT-MATTER JURISDICTION OF SUBORDINATE COURT

The jurisdiction

Answer 12

S.69 SCA - exceptions to SC’s jurisdiction - SC shall not have jurisdiction in the following matters:

• Immoveable property, except if provided under S.70 & 71.
• To enforce trust.
• Accounts.
• Declaratory decrees, except interpleader & S.65(5)(b);
• Issue or revocation of grants;
• Legitimacy of any person;
• Guardianship or custody of infant;
• Validity or dissolution of marriage.

Question 13

SUBJECT-MATTER JURISDICTION OF SUBORDINATE COURT

Jurisdiction as to immoveable property

Answer 13

1) The jurisdiction:
- S.70 & 71 SCA: immoveable property provided that it falls under the provision.
2) Jurisdiction for recovery of property - S.70:
- There must be no bona fide question of title arises.
3) Limitation - S.70(4):
- There must be no bona fide question of title arises.
4) Application of test - Hiw Kim Swee v GC Gomez:

• the issue is not to be decided on the pleadings alone but on the proceedings as a whole;
• the question of title arises where D alleges that P’s right and title is different from that claimed by P and where that difference is material to the case.

4) Whether includes SP - Nasri v Mesah:

• “Recovery of immoveable property” was interpreted in Nasri v Mesah to include specific performance.
• SC has the jurisdiction to grant SP, provided the dispute is not caught by the proviso in s 70(4).

5) All parties consented - S.71:
- SC may adjudicate the dispute on the question of the title if all parties interested consented to that being done.

Question 14

SUBJECT-MATTER JURISDICTION OF SUBORDINATE COURT

Power to grant discretionary reliefs

Answer 14

S.65(5)(a) & (b) SCA:

• power to grant discretionary reliefs.
• SC may grant an injunction & make a declaration.

Question 15

SUBJECT-MATTER JURISDICTION OF SUBORDINATE COURT

Power to grant reliefs by way of interpleader & order for sale

Answer 15

S.73 SCA:

• SC may grant relief by way of interpleader and to order a sale of any property subject to interpleader proceedings.

Question 16

TERRITORIAL JURISDICTION OF SUBORDINATE COURT

Whether Subordinate Court has concurrent jurisdiction

Answer 16

1) No concurrent jurisdiction - Taman Rimba (Mentakab) Sdn Bhd v Sin Yew Poh Tractor Works:
- Sessions Courts throughout the country do not enjoy concurrent territorial jurisdiction of each other.
2) There is concurrent jurisdiction - cf. Yee Teck Fah v Lim Soo Choo:

• Under section 59(1), only the Yang di-Pertuan Agong has the power to assign local limits of jurisdiction to the Sessions Courts;
• since His Royal Highness has not made any such order under the said section, S.59(2) comes into play.
• This means that the Sessions Courts have the same local jurisdiction as the High Courts, i.e. Sessions Courts in Malaya have jurisdiction which covers all states in Peninsular Malaysia or West Malaysia;
• Therefore, the Sessions Courts just like the High Courts can sit anywhere, at any branch, in Peninsular Malaysia or West Malaysia.
• The result is that the Sessions Courts just like the High Courts enjoy concurrent and co-ordinate jurisdiction of each other.

3) Borneo vs Malaya - Dayasar Corp. Sdn Bhd v C, P Ng & Co Sdn Bhd:

• While matters can be heard in any Court of the Courts in Malaya, it was certainly not the intention of the legislature for any Court in Malaya to assume jurisdiction of a matter arising in or which should be filed in a Borneo Court.
• OTF, since the defendant/respondent company is residing in Kuching, the matter should really be filed in Borneo High Court in particular Kuching.

Question 17

SUBJECT-MATTER JURISDICTION OF HIGH COURT

Overview

Answer 17

1) The jurisdiction & scope
2) First limb - where cause of action arose
3) Second limb - place where D or co-D resides / has his place of business
4) Third limb - facts which the proceedings are alleged or based
5) Fourth limb - where the land disputed is situated

Question 18

SUBJECT-MATTER JURISDICTION OF HIGH COURT

The jurisdiction & scope

Answer 18

1) The jurisdiction:

Article 121(1) FC - co-ordinate jurisdiction:

• There are two HC of co-ordinate jurisdiction.

S.23(1) CJA - jurisdiction of HC:

• Monetary jurisdiction - unlimited;
• Subject-matter - unlimited, subjected to Art. 128 (jurisdiction of FC) & Art. 130 (advisory jurisdiction of FC).

2) Disjunctive or conjunctive - Mee Ying Enterprise Jewellers v Che Jah bte Abdullah:

• Since D was residing in Kelantan, the HC at Kota Bahru had jurisdiction, pursuant to s 23(1)(b), to determine the suit.
• It was further held that paragraphs (a) to (d) must be read disjunctively.

3) Whether each limbs to be satisfied altogether - Siti Nur Aisha Ishak v Golden Plus Holdings Bhd (CA, 2017):
- The Court of Appeal held that so long as one of the 4 disjunctive conditions laid down by section 23(1) CJA is fulfilled, the court in which the action has been filed would be seized of jurisdiction.

Question 19

SUBJECT-MATTER JURISDICTION OF HIGH COURT

First limb - where cause of action arose

Answer 19

1) The law - S.23(a):
- where cause of action arose.
2) Scope - Distillers Co. v Thomson:

• It was not necessary that every ingredient of the cause of action should have accrued within the jurisdiction;
• what was necessary was that the act, omission, on the part of the first defendant which gave the plaintiff his cause of complaint should have been performed within the jurisdiction.
• Since P’s mother was not warned of the dangers of the drug whilst it was purchased in New South Wales, the cause of action had arisen within jurisdiction, i.e. in NSW.

Question 20

SUBJECT-MATTER JURISDICTION OF HIGH COURT

Second limb - place where D or co-D resides / has his place of business

Answer 20

1) The law - S.23(b):
- place where defendant or co-defendant resides or has his place of business.
2) Meaning of “resides” & place of business - Sino Pac Development (Thailand) Ltd v Patrick Yap Huan Ju:

• the fact that the D was a Malaysian citizen was not relevant;
  the word “resides” in s 23(1)(b) denotes a degree of permanence.
• OTF, D’s residence in Malaysia ever since 1979 was temporary and his length of stay, uncertain; and
• D was currently employed in Malaysia and had been living in Malaysia since the commencement of the action which in itself could be construed to mean that he had a “place of business” in Malaysia within s 23(1)(b).

3) Application to corporate personality - Dayasar Corp Sdn Bhd v CP Ng & So Sdn Bhd:
- the resides limb refers to the company’s registered address.
4) Application to corporate personality - Bank Industry & Teknologi Malaysia Bhd v Alom Building Systems Sdn Bhd:
- the place of business limb refers to the company’s business address.
5) Application to corporate personality - Siti Nur Aishah Ishak v Golden Plus Holdings:

• the registered address of the defendant would represent the place where the defendant resides while its business address is its place of business.
• The fact that the petition was served at the Kota Kinabalu address does not change the above conclusion; the service complies with the provisions on how service of an originating process is to be effected.

6) Example - Mee Ying Enterprise Jewellers v Che Jah bte Abdullah:
- OTF, since D was residing in Kelantan, the HC at Kota Bahru had jurisdiction, pursuant to S.23(1)(b), to determine the suit.

Question 21

SUBJECT-MATTER JURISDICTION OF HIGH COURT

Third limb - facts which the proceedings are alleged or based

Answer 21

1) The law - S.23(1)(c):
- Facts which the proceedings are alleged or based.
2) Example - Government of Malaysia v Nurhima Kiram Fornan:

• In this instant suit, the cause of action and the facts on which the current proceedings are based are all within the local jurisdiction of this court.
• The dispute resulted from the Deed of Cession which is also related to territories and lands situated within the local jurisdiction of this court.
• Therefore, the High Court of Sabah by virtue of s. 23(1) has the jurisdiction to hear this matter.
• This is so since the High Court of Sabah is clothed with the jurisdiction to hear this instant case despite the defendants are not within the jurisdiction of this court by virtue of s. 23(1).

Question 22

SUBJECT-MATTER JURISDICTION OF HIGH COURT

Fourth limb - where the land disputed is situated

Answer 22

1) The law:
- S.23(1)(d)
2) Scope:
- where the land disputed is situated.

Question 23

LOCAL JURISDICTION OF HIGH COURT

Meaning of local jurisdiction

Answer 23

1) The law:
- S.3
2) Scope:

• High Court of Malaya: All states in Semenanjung.
• High Court of Sabah & Sarawak: Sabah & Sarawak.

Question 24

LOCAL JURISDICTION OF HIGH COURT

Concurrent jurisdiction

Answer 24

1) Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd:

• The Constitution created only two HC; Malaya & Sabah Sarawak;
• Each branch of the HC of Malaya located in any state has concurrent jurisdiction to entertain any civil proceedings regardless of whether the cause of action arose in another state, provided D is not put to inconvenience.

2) Dayasar Corp. Sdn Bhd v CP Ng & Co Sdn Bhd:

• While matters can be heard in any Court of the Courts in Malaya, it was certainly not the intention of the legislature for any Court in Malaya to assume jurisdiction of a matter arising in or which should be filed in a Borneo Court.
• OTF, since the defendant/respondent company is residing in Kuching, the matter should really be filed in Borneo High Court in particular Kuching.

Question 25

LOCAL JURISDICTION OF HIGH COURT

Transfer of proceedings between High Court

Answer 25

Hap Seng Plantations v Excess Interpoints:

• It is clear that the High Courts within the States of Malaya are each of co-ordinate jurisdiction as are each of the High Courts in the States of Sabah and Sarawak;
• Transfer of proceedings are only allowed between states in Semenanjung and between Sabah & Sarawak only.

Question 26

EXTRA-TERRITORIAL JURISDICTION OF HIGH COURT

Overview

Answer 26

1) The law & scope under CJA
2) Whether the law confers extra-territorial jurisdiction
3) Test to determine the jurisdiction under S.23 CJA
4) The law & scope under Rules
5) Applicability of O.11, r.1

Question 27

EXTRA-TERRITORIAL JURISDICTION OF HIGH COURT

The law & scope under CJA

Answer 27

1) The law:
- S.23
2) Scope:

-

Question 28

EXTRA-TERRITORIAL JURISDICTION OF HIGH COURT

S.23(1)(b)

Answer 28

Malayan Banking Bhd v International Tin Council:

• S.23(1)(b) CJA provides extra-territorial jurisdiction to the High Court in cases where foreigners overseas are sued as co-defendants with local residents;
• By virtue of S.23(1)(b), Parliament intends to confer on the High Court extra-territorial jurisdiction in cases where more than one defendants are being sued, so long as one of the several defendants resides or has his place of business within Malaysia.

Question 29

EXTRA-TERRITORIAL JURISDICTION OF HIGH COURT

S.23(1)(c)

Answer 29

1) Goodness For Import & Export v Philip Morris Brands Sarl:
- In determining the question whether in this case the High Court has jurisdiction under S.23, the allegations by the plaintiff in statement of claim must be assumed to be true.
2) Ref. Matchplan (Malaysia) Sdn & Anor v William D Sinrich & Anor:

• Under S.23, there is no burden on the plaintiffs to prove to a conviction that the facts on which their action is based exist within the jurisdiction of the High Court.
• It is enough if those facts are alleged to have occurred within the court’s jurisdiction.

Question 30

EXTRA-TERRITORIAL JURISDICTION OF HIGH COURT

The law & scope under Rules

Answer 30

1) The law:

O.11, r.1

2) Scope:

-

Question 31

EXTRA-TERRITORIAL JURISDICTION OF HIGH COURT

Applicability of O.11, r.1

Answer 31

Malayan Banking Bhd v International Tin Council:

• O.11, r.1 assumes jurisdictional importance only in cases falling outside the scope of S.23(1).
• Accordingly, in cases where s. 23(1) applies, O.11, r.1 becomes a mere procedural formality to enable a plaintiff to effect service abroad.

Question 32

EXTRA-TERRITORIAL JURISDICTION OF HIGH COURT

Example of application O.11, r.1

Answer 32

Matchplan (Malaysia) Sdn Bhd v William D Sinrich:

• High Court may exercise jurisdiction over a non- resident defendant pursuant to S.23(1);
• In the present case, the relevant provisions are both paras (a) (resides or has a place of business) and (c) (place where facts are alleged to occur) of S.23(1);
• Once the court is seised of extra territorial jurisdiction by virtue of s. 23(1), O. 11 r. 1 ceases to be of jurisdictional relevance.
• High Court is seised of jurisdiction over a dispute in any of the following three cases:
• (i) where the defendant is served with the writ or other originating process within the jurisdiction; or
• (ii) where any of the conditions set out in s. 23 of the Courts of Judicature Act 1964 are satisfied; or
• (iii) where a plaintiff is able to obtain leave of court to serve a defendant who is outside the jurisdiction of the court pursuant to RHC O. 11.

Question 33

ISSUES ON JURISDICTION OF HIGH COURT

Choice of law clause

Answer 33

1) Whether choice of law clause oust the jurisdiction of the court - Elf Petroleum v Winelf Petroleum:
- A choice of law clause does not oust the jurisdiction of the court.
2) Expert opinion on interpreting foreign law - American Express International Banking Corporation v Tan Loon Swan:
- if it is necessary for a court in this country to form an opinion upon a point of foreign law, s.45 of the Evidence Act 1950 can be applied.
3) Application & example - YK Fung Securities v James Capel:

• Expert evidence are confined to establishing the existence of legislation or rules;
• Once existence of the rules are established, the effect of their application to the particular facts of this case is a question of law for the local court to decide.
• The evidence of the experts on how the foreign law or rules are to be interpreted or applied is mere opinion evidence which the court may or may not accept

4) Test to determine - Amin Rasheed Shipping v Kuwait Insurance Co.:
- (a) If the parties have made an express choice of law in the contract itself, then subject to certain exceptional limitations, that law they have chosen will prevail.
- (b) If there is no express choice of law, the court must examine all the facts surrounding the contract to determine whether there was an inferred or implied choice of law by the parties. Other factors include:

– (i) the currency in which the payment is to be made [R v. International Trustee for the Protection of Bondholders AG [1937] AC 500] [HL].

– (ii) the location of the subject matter of the contract [British South Africa Company v. De Beers Consolidated Mines, Limited[1910] 1 Ch 354] at p.381 right column - p.382 left column.

– (iii) nationality of the parties [Missouri Steamship Company (1889) 42 Ch D321] (English Court of Appeal) at pp.340-341 - ie, the ship was an English ship; the owners were an English company;

• England was the place to which the goods were to be brought and the place at which the final completion of the contract was to take place and more importantly, the forms of the contract and the bills of lading were English forms.
• (c) In the absence of any choice of law express or implied the court proceeds to determine and apply the system of law with which the transaction has the closest and most real connection [John Lavington Bonython v. Commonwealth of Australia [1951] AC 201 at p.202.

Question 34

ISSUES ON JURISDICTION OF HIGH COURT

Forums conveniens

Answer 34

1) Principles on forum conveniens - American Express Bank Ltd v Mohammed Toufic Al-Ozeir & Anor:

• SEPARATE: The issues of jurisdiction and that of forum non conveniens must be kept separate;
• JURISDICTION: Once it is established that such jurisdiction exists, the court still has to consider whether to deal with the matter based on the doctrine of forum non conveniens.
• DEFENDANT: Where D applies for a stay of proceedings it is for him to show that “some other forum is more appropriate”;
• PLAINTIFF: If P were applying for leave to serve a notice of the writ out of jurisdiction then it is for P to show that the Malaysian court is the most appropriate forum to try the action.
• COURT: If the court exercises its discretion not to deal with the case, then it can either:
• refuse to grant leave to serve the notice of the writ out of jurisdiction; or
• set aside such leave (if it had already been granted ex parte); or
• stay the proceedings.

3) Example - Spiliada Maritime Corp. v Consulax Ltd:

-

Question 35

ISSUES ON JURISDICTION OF HIGH COURT

Judgment in foreign currency

Answer 35

Milliangos v George Frank (Textiles) Ltd:

• P suing for a debt payable in Swiss francs under a contract governed by Swiss law could claim and recover judgment in England in Swiss francs.