UUUK 4053 (Civil Procedure I)

Introduction to
Civil Procedural
Law
Hizri Hasshan

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What is procedural law?
Procedural law is also known as adjective law which litigants must comply with in
order to gain access to the court of law to vindicate their rights and seek justice.
Procedural law governs the conduct of litigation proceedings and regulate the
administration of justice.

Non-compliance with procedural law particularly mandatory provisions may render

the proceedings to be invalidated and set aside by the court. In certain
circumstances, serious breach of procedural law can be fatal and not curable.

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Objectives of procedural law
Lord Penzance in Henry J B Kendall v. Peter Hamilton (1878-79) 4 App Cas 504 said:

“Procedure is but the machinery of the law after all – the channel
and means whereby law is administered and justice reached”

Procedural law is founded on principles which have evolved, and rules which have
been developed, to manifest the objectives of substantive justice. It operates in a
dynamic balance with substantive law to achieve justice in its fullest sense.

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Objectives of procedural law
Gopal Sri Ram JCA in delivering the judgment of the Federal Court in the case of
Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd [1995] 3
MLJ 331 (FC) also stated:

“…That the 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 rules of court and of practice are created to
facilitate the attainment of justice, not its obstruction.”

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Objectives of procedural law
The objectives of the procedural laws in litigation proceedings are threefold:

 Firstly, the procedures are meant to assist the court to conduct and regulate
their business or judicial service;

 Secondly, they establish uniform procedures within the court system to increase
efficiency; and

 Thirdly, they provide information and guidelines to those appearing before the
court whether they are lawyers or the litigants themselves

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Jurisdiction, Procedure & Substantive Law
1. The jurisdictional law determines forum in multi-forum system. The law is directed
at court and its power. The Court is not empowered to hear merits of case if the
court has no jurisdiction. The challenge as to jurisdiction can be raised at any
stage of proceedings. The lack of jurisdiction cannot be waived by consent of
parties nor by exercise of court’s discretion.

2. The procedural law is directed at parties/litigants. It governs the process to be

followed by parties to vindicate their rights. It is meant to ensure fairness and
efficiency in truth-finding process. Procedural non-compliance may be remedied.
But, serious non-compliance of mandatory rule will be fatal and court may strike
out the case without hearing the merits.

3. The substantive law is the law that creates or defines rights, duties, obligations,
remedies and causes of action that can be enforced by law. It will be applied to
the facts as presented by parties to the court based on the evidence adduced.

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 Shariah Land
Proceedings Reference
Proceedings
Criminal
Proceedings
Income Tax
Proceedings

Procedural
Law
Bankruptcy
Proceedings Matrimonial
Proceedings

Winding Up Civil
Proceedings Proceedings

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Civil Procedure?
Civil procedure (CP) may be said to consist of a group of rules and regulations which
enables the parties to pursue or defend legal claims, and provide the process by
which rights are realised and liabilities imposed on the basis of sufficient evidence.

It is impossible to practice successfully in the civil sphere without a sound

understanding of the rules and principles of civil procedure.

As to scope of civil procedure, it extends to all subjects of the law and the entire
process of dispute resolution in the courts including certain aspects of enforcement
of criminal proceedings, arbitration, mediation and even applies prior to
commencement of legal proceedings.

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Civil Litigation?
There are three (3) basic
elements in civil litigation or
known as 3Cs namely,
See you in
court !!! (i) the claim, being an active
attempt to attain some
valued end;

(ii) the conflict, being the

resistance to the claim; and

(iii) the court, the institution to

resolve the conflict or dispute

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 Which court has Which mode to
the competent file? Writ or
jurisdiction? Originating
Summons?
Who has the
locus to sue?
What is the
cause of
action?

How to draft
the pleadings?

Is the claim
time barred?

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Sources of procedural law
Federal Constitution

Acts of Parliament Judicial Precedents

Rules of Court

Practice Direction, Practice

Notes, Court Circular

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Acts of Parliament / Federal Laws
Courts of Judicature Civil Law Act 1956 Evidence Act 1950
Act 1964 (CJA) (CLA) (EA)

Subordinate Courts Act Specific Reliefs Act Limitation Act 1953

1948 (SCA) 1950 (CJA) (LA)

Public Authorities
Subordinate Courts
Protection Act 1948
Rules Act 1955 (SCRA)
(PAPA)

Government
Proceedings Act 1956
(GPA)

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Rules of Court
Section 16 CJA – Purposes of rules of court

Rules of court may be made for regulating and prescribing the procedure
(including the method of pleading) and the practice to be followed in the High
Court, the Court of Appeal and the Federal Court in all causes and matters.

Who has power to make rules of court?

Section 17 CJA – Rules Committee

Section 3 SCRA – Subordinate Courts Rules Committee

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Practice Directions
Order 92 Rule 3B Rules of Court 2012 –
The Chief Judge after consulting the Chief Justice may issue such practice directions as may
be necessary for the better carrying out or giving effect to the provisions of these Rules.

In Poh Gaik Lye v Amfraser Securities Pte Ltd [2015] 1 MLJ 453, the Court of Appeal stated:

“[18] With respect we are not able to agree with learned counsel for the simple
reason that when any application is made to the courts especially an ex parte basis
and in this case counsel was dispensed with attendance, the applicants must make
full, frank and accurate disclosure to the court. They are duty bound to do so. The
courts expect no less. They cannot rely on grounds which are not consistent.
Practice Note No 1 referred to in the case of Re Aris Massod; Ex P UoL Factoring
Sdn Bhd [1999] 3 MLJ 358 by Steve Shim J (as he then was) remains relevant today
in respect of any application for substituted service of any cause document. Both
practitioners and officers of the court should be mindful of what is stated in the just
mentioned practice direction though made in 1968.”
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Practice Directions
The Court of Appeal in the case of Country Garden Danga Bay Sdn Bhd v. Tribunal
Tuntutan Pembeli Rumah & Anor [2020] 4 CLJ 865, stated that it is axiomatic that
practice directions are issued by the courts to supplement the existing rules and to
regulate the procedural practice of solicitors in their dealings with the courts, and in
the filing of cause papers or documents.

Practice directions are created and issued to streamline the court process and
enhance efficiency of the same. Hence, as long as the practice directions are not
contrary to any written law, they must be complied with. The court in Country Danga
Bay’s case further stated that if practice directions are disregarded willy-nilly, there
may arise confusion and even disorder in the management of caseloads in the
courts. The practice direction has force of law and not mere guidance.

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Judicial Precedents / Inherent Power
The Court of Appeal in Ezzen Heights Sdn Bhd v. Ikhlas Abadi Sdn Bhd (Soh Yuh
Mian, Intervener) [2011] 3 CLJ 16; [2011] 4 MLJ 173 held that the inherent powers
of the High Court and the Court of Appeal have been given statutory recognition by
way of subsidiary legislation in Order 92 rule 4 of the Rules of Court 2012 (formerly
Rules of the High Court 1980).

These wide powers are procedural and may be exercised as residuary or reserve
powers to suppress an abuse of the process of the court and to defeat any attempted
thwarting of its process. The inherent powers that are necessary to the court of law to
uphold, to protect, and to fulfil its judicial function of administering justice in a
regular, orderly and effective manner.

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Rules of Court 2012 – An Introduction
History
Rules of Court 2012 (hereinafter referred to as “RC 2012”) is a combination of
the repealed Rules of High Court 1980 (RHC 1980) and Subordinate Courts
Rules 1980 (SCR 1980). It was modelled after the English Rules of Supreme
Court 1965.

With effect from 1st August 2012, the RHC 1980 and SCR 1980 were repealed
and replaced by the RC 2012. RC 2012 being combined rules attempts to
standardise the procedural mechanism for litigation proceedings at the High
Court, Sessions Court and Magistrate Court.

Application (O. 1 r. 2)
(1) Subject to paragraph (2), these Rules apply to all proceedings in-
(a) the Magistrates' Court;
(b) the Sessions Court; and
(c) the High Court.
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Rules of Court 2012 – An Introduction
Appendix C – Exempted proceedings
(1) (2) (3)
Item Proceedings Written law
1. Bankruptcy proceedings Bankruptcy Act 1967 & Bankruptcy Rules 1969

2. Proceedings relating to the winding up of companies Companies Act 1965 & Winding Up Rules 1972
and capital reduction

3. Criminal proceedings Criminal Procedure Code

4. Proceedings under the Elections Offences Act 1954 Elections Offences Act 1954

5. Matrimonial proceedings Law Reform (Marriage and Divorce) Act 1976

6. Land reference Land Acquisition Act 1960

7. Admission to the Bar Legal Profession Act 1976
Advocates Ordinance of Sabah
Advocates Ordinance of Sarawak

8. Proceedings under the Income Tax Act 1967 Income Tax Act 1967

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Rules of Court 2012 – An Introduction
Appendix A – Court Forms

"Form" means a form set out in Appendix A to these Rules, and a form referred to by
a number means the form so numbered in Appendix A. (O. 1 r. 4)

Chang Min Tat J in Yu Oi Yong & Anor v Ho Toong Peng [1977] 1 MLJ 120 stated:
“It should, I think, be realised by practitioners as well as by
judges that while strict and slavish adherence to forms and
rules can sometimes hinder the administration of justice,
these forms and rules should not be disregarded for no reason
whatsoever, since they embody the experience of the courts
over the years in the cause of speedy and efficient
administration of justice”
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Non-compliance with rules of court
As a general rule, the parties in civil proceeding must strictly comply with the rules
of the court.

See Malayan Banking Bhd v. Lim Yee Yong [1994] 3 MLJ 715 (HC)

“Although the court was mindful of the fact that justice would
not be served by acceding to objections on technicalities for
non-compliance, it was of the view that litigants should not
treat rules of procedure lightly or take the court for granted.
Any litigant who neglects to adhere strictly to the rules of
procedure does so at his own peril.”

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Non-compliance with rules of court
Non-compliance with Rules (O. 2 r. 1)

(1) Where, in beginning or purporting to begin any proceedings or at any stage in the
course of or in connection with any proceedings, there has, by reason of any thing
done or left undone, been non-compliance with the requirement of these Rules,
the non-compliance shall be treated as an irregularity and shall not nullify the
proceedings, any step taken in the proceedings, or any document, judgment or
order therein.

(2) These Rules are a procedural code and subject to the overriding objective of
enabling the Court to deal with cases justly. The parties are required to assist the
Court to achieve this overriding objective.

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Non-compliance with rules of court
Regard shall be to justice (O. 1A)

In administering these Rules, the Court or a Judge shall have regard to the
overriding interest of justice and not only to the technical non-compliance with
these Rules.

Inherent powers of the Court (O. 92 r. 4)

For the removal of doubt it is hereby declared that nothing in these Rules shall be
deemed to limit or affect the inherent powers of the Court to make any order as
may be necessary to prevent injustice or to prevent an abuse of the process of the
Court.

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Breach of Mandatory Rules
In DYAM Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj v. Datuk Captain Hamzah
Mohd Noor [2009] 4 MJ 149, Federal Court held:

Order 1A of the RHC must not supersede a mandatory

requirement of the RHC. Order 1A cannot be invoked when a
party intentionally disregards in complying with the RHC. Thus in
this case, O 1A of the RHC did not apply as the respondents had
intentionally disregarded O 6 r 7(2A) for their own reasons. Order
6 r 7(2A) of the RHC which deals with the service of a writ is
mandatory. Order 1A of the RHC cannot be invoked to cure the
failure to comply with the prerequisites of O 6 r 7(2A).

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Procedural Time Frame
Extension of time (O. 3 r. 5)

(1) The Court may, on such terms as it thinks just, by order extend or abridge the
period within which a person is required or authorized by these Rules or by any
judgment, order or direction, to do any act in any proceedings.
(2) The Court may extend any such period as referred to in paragraph (1) although
the application for extension is not made until after the expiration of that
period.
(3) The period within which a person is required by these Rules, or by any order or
direction, to serve, file or amend any pleading or other document may be
extended by consent in writing without an order of the Court being made for that
purpose.

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Procedural Time Frame
Court of Appeal in the case of Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd
[1997] 1 CLJ 396; [1996] 1 MLJ 223 as follows:-

"It is a cardinal principle of law, that when a litigant seeks the

intervention of the Court in a matter that affects his rights, he must do so
timeously. The maxim vigilantibus non dormientibus jura subveniunt,
though having its origins in the Court of Chancery, is of universal
application. Even in cases where a right is exercisable ex debito justitiae,
a Court may refuse relief to an indolent litigant..... the burden is upon the
litigant who has delayed to render a satisfactory explanation for it.
Whether the explanation in a given case is satisfactory or reasonable
depends upon the facts and circumstances of each case. And in a matter
which involves the exercise of discretion, it is for the Judge in whom the
law primarily vests the discretion."
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Language
Language of documents (O. 92 r. 1)

(1) Subject to paragraph (2), any document required for use in pursuance of these Rules shall be in
the national language and may be accompanied by a translation thereof in the English language,
except that the translation for the purpose of Order 11, rule 6(4) and rule 7(1) shall be prepared in
accordance with rule 6(5) of that Order:

Provided that any document in the English language may be used as an

exhibit, with or without a translation thereof in the national language.

(2) For Sabah and Sarawak, any document required for use in pursuance of these Rules shall be in
the English language and may be accompanied by a translation thereof in the national language
except that the translation for the purpose of order 11, rule 6(4) and rule 7(1) shall be prepared in
accordance with rule 6(5) of that Order.

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Language
Dato Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad [2010] 1 CLJ 444, the Court of Appeal held:

“The absence of the memorandum of appeal in the National Language rendered the
appellant's record of appeal incurably defective and consequently, the appellant's appeal
must be dismissed as there was no proper record of appeal before the court…

… The importance of the Malay Language as the national language cannot be taken
lightly. The mandatory provisions of art. 152 of the Federal Constitution read together
with s. 8 of Act 32 and s. 3 of Act 388 must be adhered to. It requires the appellant to file
the memorandum of appeal in the National Language. No other language will be
entertained. The failure of the appellant to do so amounted to a blatant breach which
compelled the court to conclude that no memorandum of appeal had been filed at all.

Pursuant to O. 92 r. 4 of the RHC, the filing of the memorandum of appeal in the English
language constituted an injustice to the respondent and it was, pure and simple, an
abuse of the process of the court”
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“Q&A”

Thank you
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