CHAPTER 2 – CIVIL COURTS AND JURISDICTION

IDENTIFY COURT WITH 3 THINGS

 LOCALITY
 SUBJECT MATTER/ JURISDICTION
 MONETARY JURISDICTION/ MONETARY CLAIM/ MONETARY DAMAGES

1. Introduction
- A civil action must commence in which the Court has jurisdiction to hear the subject
matter of the dispute. If the court has no jurisdiction, action may be dismissed or
alternatively, upon application, transfer the matter to which a court has jurisdiction to
hear the matter.
- A judgment or order made where the court has no jurisdiction is ab initio, null and may be
set aside as of right.
 Example: Pf obtain judgement in default; Df did not put in memorandum of
appearance within 14 days, Pf has right under O.13 of ROC to take judgment against
Df. But if Pf file at wrong court, it can be set aside as of right.
- Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd: FC held that it is
well settled that even courts of unlimited jurisdiction have no authority to act in
contravention of written law. Of course, so long as an order of a court of unlimited
jurisdiction stands, irregular though it may be, it must be respected. But, where an order
of such a court is made in breach of statute, it is made without jurisdiction and may
therefore be declared void and set aside in proceedings brought for that purpose.

2. Jurisdiction of civil courts

- Jurisdiction means the extent of the authority of a court to administer justice, not only
with reference to the subject matter of the action but also to the local (geographical) and
pecuniary limits within which the court has power to entertain an action presented before
it.
- Jurisdiction of civil courts in Malaysia is provided by the Courts of Judicature Act 1964
(CJA) and Subordinate Courts Act 1948 (SCA).
- Before an action is commenced, there must be several integral elements to establish,
namely, parties to the action; cause of action; subject matter of the action; court to
commence the action (geographically and hierarchically); and remedy.
- 3 types of jurisdiction
 Subject matter jurisdiction
 Local or territorial jurisdiction
 Pecuniary or monetary jurisdiction

a. Subject matter jurisdiction

i. High Court
- High Court has unlimited jurisdiction to hear subject matters to dispute, subject to
Art.128 of Federal Constitution.
- S.23(1) of CJA: Subject to limitation contained in Art.128 of FC, HC shall have
jurisdiction to try all civil proceedings where:
 CURRY – the cause of action arose;
  DAHL – the defendant or one of several defendants resides or has his place of
business;
 FOR – the facts on which the proceedings are based exist or are alleged to have
occurred;
 LUNCH – any land the ownership of which is disputed is situated.
- Bank Negara v Gerald Glesphy: Held that the word ‘all’ under S.23(1) of CJA means any
civil proceeding irrespective of the amount of claim. In another words, HC has
unlimited jurisdiction to try all civil claims, including claims that may be made in the
sessions court and the magistrate’s court.
ii. Sessions Court
- S.59(2) of SCA: Sessions Court shall have jurisdiction to hear and determine any civil or
criminal cause or matter arising within the local limits of jurisdiction assigned to it
under this section; or if no such local limits have been assigned, arising in any part of
Peninsular Malaysia.
- S.65(1) of SCA: Subject to the limitations in the Act, Sessions Court shall have unlimited
jurisdiction to try, all actions and suits of a civil nature in respect of motor vehicle
accidents, landlord and tenant and distress; all other actions and suits of a civil nature
where the amount in dispute or the value of the subject matter does not exceed RM1
million; and all actions and suits of a civil nature for the specific performance or
rescission of contracts or for cancellation or rectification of instruments.
 Magistrates’ court cannot entertain an action for specific performance of contract or
for an injunction.
 SC has jurisdiction to grant order for SP; injunction; cancellation or rectification of
instruments; declarations. [S.65(1) & S.65(5)]
- S.65(3) of SCA: So long as parties have an agreement that the matter shall be heard and
tried in the Sessions Court, even though the amount of subject matter exceed the value
limit of jurisdiction, Sessions Court can still hear and try the case.
 Mohd Mustafa bin Shuib & 2 ors v Zakaria bin Subri & Anor: On issue of whether the
SC has jurisdiction to award damages for more than RM100k (prior to amendment)
where there is more than 1 plaintiff, HC held that SC cannot award damages exceeding
its jurisdiction unless parties consent in writing or alternatively the court suggested
that each plaintiff should have filed the action separately and thereafter consolidate it.
- S.69 of SCA: Sessions Court shall have no jurisdiction over, (a) immovable property
except under S.70 and S.71; (e) to enforce trusts; (f) for accounts; (g) for declaratory
decrees except in making a declaration under paragraph 65(5)(b) and interpleader
proceedings under S.73; (h) for the issue or revocation of grants of representation of the
estates of deceased persons or the administration or distribution thereof; (i) where the
legitimacy of any person is in question; (j) where the guardianship or custody of infants is
in question; and (k) 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.
- S.70(1) of SCA: Subject to subsection(4), SC shall have jurisdiction to hear and
determine any action or suit for the recovery of immovable property and to issue order
to the proper officer of the Court to put the plaintiff in possession of property.
- S.70(4) of SCA: Except as provided in S.71, jurisdiction shall not be exercised in any
case where, in the opinion of the court, there is a bona fide question of title involved.
 Furthermore, recovery of possession under this section does not bar to an institution of
action in High Court.
- S.71 of SCA: If action pertains to the dispute as to the title to the immovable property,
the Court may adjudicate if all parties interested consent, but if no consent, Sessions
Court Judge shall apply to High Court to transfer the action or suit to itself.
 Hiew Kim Swee v G.C. Gomez: Held that although on the face of the pleadings in this
case, there appeared to be a question of title involved, the evidence in this case did not
show that there was in fact any dispute as to title and therefore the Magistrates’
Court had jurisdiction to hear and determine the case.
 Wawasan Cempaka Sdn Bhd v Bank Islam Malaysia Bhd: COA held that while it is
clear that S.69(a) prohibit Sessions Court from hearing civil suits relating to
immovable property, it included an exception by providing the phrase ‘except as
provided in Ss.70 and 71’. Hence, S.70 expressly and specifically gives such
jurisdiction to the Sessions Court. The only restriction is under S.70(4) which
provides that jurisdiction shall not be exercised where in the opinion of the court,
there is a bona fide question of title involved. In other words, 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, bona fide question of title involved.
- S.72 of SCA: Sessions Court shall have jurisdiction to issue writs or warrants of
distress for rent.
 Writ of distress: When a tenant does not pay rent, the landlord may apply for a writ of
distress which is a court order to direct the bailiff or sheriff to seize the moveable
properties of the tenant and sell it to recover the rent.
- S.93(1) of SCA: S.65(3) and (4) and S.66 to 70 and S.72 to 74 shall apply mutatis
mutandis to Magistrates’ Courts.
iii. Magistrates Court
- S.76(2) of SCA: Magistrates’ Court shall have jurisdiction to hear and determine any civil
or criminal cause or matter arising within the local limits of jurisdiction assigned to it
under this section; or if no such local limits have been assigned, arising in any part of
Peninsular Malaysia, provided that no Magistrate shall have jurisdiction to hear or
determine any cause or matter arising in any State and for which he has not been
appointed to be a Magistrate save to the extent of CPC and civil procedure.

b. Local or Territorial Jurisdiction

i. High Court
- S.3 of CJA: defined ‘local jurisdiction’ as (a) in the case of HC in Malaya, the territory
comprised in the States of Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri
Sembilan, Pahang, Penang, Perak, Perlis, Selangor, Terengganu and the Federal Territory
of Kuala Lumpur; and (b) in the case of HC 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.
- Art 121 of FC: There shall be 2 High Courts of co-ordinate jurisdiction and status,
namely High Court of Malaya; and High Court of Sabah and Sarawak
- HC in Malaya and HC in Sabah and Sarawak have separate territorial jurisdictions
  Syarikat Nip Kui Cheong Timber Contractor v Safety and General Insurance Co. Sdn
Bhd: held that definition of ‘local jurisdiction’ sets out the territorial jurisdiction of the
HC in Malaya and HC in Borneo. Both of the High Courts have separate and distinct
territorial jurisdictions.
 Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn Bhd: Held that
power to transfer any proceeding must be confined to transfer within a particular local
jurisdiction and not between the 2 local jurisdictions, which is HC of Malaya and HC
of Sabah and Sarawak. Although O. 57 r. 1(4)(a) of ROC 2012 speaks of a transfer of
proceedings from the High Court to another High Court of 'co-ordinate jurisdiction',
the context must be confined to the respective territorial jurisdiction of the two
High Courts, namely that of Malaya on the one hand and Sabah and Sarawak on the
other.
- All HC in Malaya has no separate jurisdiction but concurrent
 Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd: A HC located in Penang or 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. Nonetheless, in this case, it was
held that the present civil proceedings should not be dealt with by HC of Alor Setar
due the convenience of forum, for instances, cause of action arose in Penang while
parties have place of business in KL.
 Taman Rimba (Mentakab) Sdn Bhd v Sin Yew Poh Tractor Works: Within each of the
High Courts’ territorial limits, a HC judge has concurrent and coordinate
jurisdiction to try cases as his counterpart in another city or town where there is a
High Court. Thus, a judge sitting in the HC of Malaya at KL has the same power and
right to try a matter or cause arising in another part of West Malaysia.
ii. Sessions Court
- S.59(1) of SCA: YDPA may, by order, constitute so many Sessions Courts as he may
think fit, and shall have power, if he thinks fit, to assign local limits of jurisdiction
thereto.
- Abul Hasan bin Mohamed Rashid v PP (2021): Held that order made vide LN 421 of
1955 the Court Ordinance 1948 has clearly stated that the local limits of jurisdiction for
the sessions court in Peninsular Malaysia is state-wise. The order came into force on 1
October 1955 and is still valid and subsisting.
iii. Magistrates’ Court
- S.76(1) of SCA: YDPA may, by order, constitute so many Magistrates’ Courts as he may
think fit, and shall have power, if he thinks fit, to assign local limits of jurisdiction
thereto.

c. Pecuniary or Monetary Jurisdiction

- Refers to the maximum amount involved in the particular case to give the court
jurisdiction to hear the case.
i. High Court
- HC has unlimited pecuniary jurisdiction.
- Bank Negara v Gerald Glesphy: Held that the word ‘all’ under S.23(1) of CJA means any
civil proceeding irrespective of the amount of claim. In another words, HC has
 unlimited jurisdiction to try all civil claims, including claims that may be made in the
sessions court and the magistrate’s court.
ii. Sessions Court
- S.65(1) of SCA: SC can at present hear actions and suits where the amount in dispute or
value of the subject matter does not exceed RM1 million and unlimited pecuniary
jurisdiction in respect of motor vehicle accidents, landlord and tenant and distress.
- S.65(3) of SCA: So long as parties have an agreement that the matter shall be heard and
tried in the Sessions Court, even though the amount of subject matter exceed the value
limit of jurisdiction, Sessions Court can still hear and try the case.
- S.65(4) of SCA: Every such agreement shall be filed in the SC and when it is so filed, the
parties to it shall be subject to the jurisdiction of the SC.
- S.65(5) of SCA: SC may, in any proceedings before it, grant an injunction and make a
declaration.
- Mohd Mustafa bin Shuib & 2 ors v Zakaria bin Subri & Anor: On issue of whether the SC
has jurisdiction to award damages for more than RM100k (then was) where there is more
than 1 plaintiff, HC held that SC cannot award damages exceeding its jurisdiction unless
parties consent in writing or alternatively the court suggested that each plaintiff should
have filed the action separately and thereafter consolidate it.
- New Straits Time Press (M) Bhd v Hazahar Bin Idris: Held that SC has jurisdiction to
award a maximum amount of RM250k (then was) in respect of a tortfeasor. The court in a
single action like the present case cannot award in respect of all the 4 appellants a total
sum exceeding the limit of RM250k. Hence, award of separate sums of general damages
for the total sum of RM640k against the 4 appellants was erroneous and could not be
allowed to stand.
- Foo Sey Koh v Chua Seng Seng: Issue is whether a subordinate court may entertain a
claim where the principal amount sued for is within the jurisdiction but the interest
claimed would result in a cumulative figure which is in excess of its monetary
jurisdiction. Court held that it is to be noted that the period in which the interest is to run
and the rate at which the interest is to be given is purely discretionary. To expect a
plaintiff to be able to compute what the interest is going to be and thereby to
determine in which court he shall file his action, could not been the intention of the
law. Hence, in this case, the plaintiff should have initiated his action in the SC since the
debt which he was suing to recover was within the monetary limit of SC. What interest
the SC would have awarded is entirely a matter for it upon the merits of the case.
 The court will look at the main claim and the subject matter. The interest is not part of
that.
- Subramaniam Paramasivam v Malayan Finance Bhd: Held that a party should make an
application to transfer a SC case to the HC by reason of value limit only after the avenue
to have matter tried before the SC as provided under S.65(3) & (4) had been diligently
explored. The initiative to have the jurisdiction agreement must be made by the plaintiff
as it was his counterclaim that exceeded the value limit of the SC. He should have
proposed to the defendant first and only made application to the High Court for the
transfer of the proceeding if (a) the defendant unreasonably refused to agree to the
proposal; (b) refused to respond to the proposal and (c) unreasonably delayed in
responding to the plaintiff's proposal.
- Time Online Dotcom Bhd v Bates (Malaysia) Sdn Bhd: Pursuant to S.65(3) of SCA,
applicant sought for agreement of respondent to have case tried in SC but respondent
refused such proposal. It was for these reasons that the applicant was compelled to file
these proceedings to transfer. Should the respondent agreed, the case would have
proceeded expeditiously in SC, thus, it was wholly wrong to say that applicant was
delaying the trial of the respondent’s claim. The applicant was entitled to have its
counterclaim adjudicated in the right and proper forum, which in this case, the High
Court, as the quantum of counterclaim exceeded the sum of RM250k.
- Wong Kon Sang v Chang Litho Press Ltd: In this case, parties agreed to submit to the
jurisdiction of the SC. The counterclaim exceeded the pecuniary limit of the SC. The SC
judge held that he had no jurisdiction to hear the claim and defendant made the
application to the HC. HC held that S.65(3) of SCA allows the whole action and all issue
to be tried in the action including the counterclaim. SC therefore had jurisdiction to hear
the case. Hence, defendant had to apply to the court for an order of mandamus for case to
go back to SC to be heard.
iii. Magistrates’ Court
- S.90 of SCA: 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 RM100k.
- S.92 of SCA: A Second Class Magistrate shall only have jurisdiction to try original
actions or suits of a civil nature where the plaintiff seeks to recover a debt or liquidated
demand in money payable by the defendant, with or without interest, not exceeding
RM10k.

d. Original jurisdictions
i. High Court
- S.23(1) of CJA: Subject to limitation contained in Art.128 of FC, HC shall have
jurisdiction to try all civil proceedings where:
 CURRY – the cause of action arose;
 DAHL – the defendant or one of several defendants resides or has his place of
business;
 FOR – the facts on which the proceedings are based exist or are alleged to have
occurred;
 LUNCH – any land the ownership of which is disputed is situated.
 Lam Kok Trading v Yorkshire Switchgear: In this case, contract was made outside
the jurisdiction, the defendant was resident outside Malaysia and had no place of
business within the jurisdiction and the breach of contract also occurred outside the
jurisdiction. It was held that court had no jurisdiction to deal with the matter and
thus, application to set aside the writ of summons must be allowed.
 Mee Ying v Che Jah bte Abdullah: Held that writ may be set aside for an alleged lack
of jurisdiction by an entry of a conditional appearance followed by an application by
summons to set it aside. By entering an unconditional appearance, the appellant had
waived any objection she might have had on the question of jurisdiction and had
submitted to the jurisdiction of the court. Further, it was not disputed that the
appellant was resident in Kelantan, which met the requirement under S.23(1)(b)
 of CJA. Further, appellant had by admitted liability and even made an initial
payment. Thus, the court had jurisdiction to determine the claim.
 Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd: Held that although a branch of HC
located in any state has concurrent jurisdiction to entertain any civil proceedings,
nonetheless, this is not the end of matter. The creation of branch of HC in Malaya
in each state is to enable parties to have easy access to a branch of HC in Malaya
located in a state where either the plaintiff or defendant resides. When a person is
sued for breach which was committed in the state where he resides, it is
unreasonable to require him to travel all the way, say, to KL, to defend himself.
Thus, in this case, it is for the defendants to apply to HC to transfer the civil suit
under O.81(1) to HC of Penang or Kuala Lumpur since the cause of action arose in
Penang but parties have their places of business in KL.
 PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun: COA held that it
mattered not that the respondent himself might be outside the jurisdiction of the
HC. S.23(1)(b) of CJA merely required one of several defendants to be within
jurisdiction and if that was fulfilled, the Malaysian court had jurisdiction to
adjudicate the dispute as S.23(1)(b) plainly provided extra-territorial jurisdiction to
the HC in cases where foreigners were sued as co-defendants with local residents.
 Distillers Biochemicals v Thompson: Held that it was not necessary that every
ingredient of the cause of action should have occurred within the jurisdiction, nor
was it necessary, or sufficient, that the last ingredient which completed the cause of
action, should have occurred within the jurisdiction. What was necessary was that
the act, or omission, on the part of the first defendant which gave the plaintiff his
cause of complaint should have been performed within the jurisdiction.
- General rule is that HC can try all matters except those stated in Art.128 of FC, such as
if validity of written law made by Parliament or Legislature of a State is challenged; and
dispute between Federation and states and between one and another.
 Goodness for Import and Export v Phillip Morris Brands Sarl: Held that in the present
case, the plaintiff’s statement of claim disclosed that the plaintiff’s action was based
principally on trademark infringement and passing off. If either of these cause of
actions arose within Malaysia, then under S.23(1)(a) of CJA, the Malaysian court
should have jurisdiction to deal with the action. In addition or alternatively, if the facts
on which the proceedings were based in this case, occurred within Malaysia, then
pursuant to S.23(1)(c) of CJA, the Malaysian court should have jurisdiction to try the
proceedings. Further, the witnesses who would be able to provide evidence on those
facts which were central to this case were Malaysian’s officer. And the first
defendant was sued along with other 4 defendants which were Malaysian
companies and officers of defendants may need to be called as witnesses during trial.
Thus, Malaysia is the appropriate forum to adjudicate the present case.
- S.24 of CJA: Provides the specific jurisdiction for HC, namely, (a) written law relating
to divorce and matrimonial causes; (b) same jurisdiction and authority in relations to
matters of admiralty as is had by HC of Justice under UK SCA; (c) jurisdiction relating to
bankruptcy or to companies; (d) appoint and control guardians of infants and generally
over the person and property of infant; (e) appoint and control guardians and keepers of
persons and estates of idiots, mentally disordered persons and persons of unsound mind;
and (f) grant probate and wills and testaments and letter of administration of the estate of
 the deceased leaving property within territorial jurisdiction of the court and to alter or
revoke such grants.
ii. Subordinate Courts (Additional powers and jurisdiction)
- S.99A of SCA: Justices of Peace shall have and may exercise within the State for which
they are appointed such powers not exceeding the powers of a Second Class Magistrate as
may be conferred upon them by any written law.
- Para 2, Third Schedule of SCA on Additional powers of Sessions Court and Magistrates’
Courts: Power to stay proceedings unless they have been instituted in the District in
which the cause of action arose; the defendant resides or has his place of business; one
of the several defendants resides or has his place of business; the facts on which the
proceedings are based exist or are alleged to have occurred; or for other reasons it is
desirable in the interests of justice that the proceedings should be had.
- Yap Thaim Choy v Syarikat Pembenaan Fajar Baru (Rembau) Sdn Bhd: Held that the
conditions in S.2(1)(a) to (e) of the 3rd Schedule to the SCA 1948 should be read
disjunctively as the word "or" was stated immediately after every condition stipulated
therein. As conditions (b) and (e) of the 3rd Schedule were in favour of the defendant, the
proceedings should be heard in Petaling Jaya Sessions Court.

3. 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.
- ELF Petroleum SE Asia Pte Ltd v Winelf Petroleum Sdn Bhd: Plaintiff supplied
petroleum products to defendants. When defendants defaulted in payment, plaintiffs
brought action against defendants, who in turn applied for court’s order to strike out the
writ of summons as agreement stipulated that Malaysian courts have no jurisdiction.
Court held that although parties had 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.
- American Express International Banking Corp v Tan Loon Swan: On the objection that
Malaysia have no jurisdiction over the matter as it was stated in the agreement that
agreement was to be construed according to Singapore’s law, court held that respondent
had clearly submitted to the jurisdiction of Malaysian courts by entering his appearance
and filing his defence to the action and in any case there was no reason why a court in this
country where the respondent resides is not the forum convenience.