INTRODUCTION

TO CIVIL PROCEDURE
Malaysian Legal System

DR NADIA AZIZ
 WHAT IS CIVIL PROCEDURE?
“Civil procedure deals with the formal steps required to be taken to
enforce a substantive right in a civil court”
(Datuk Dr. Hj. Hamid Sultan Bin Abu Backer. 2019.
Janab’s Key To Civil Procedure, 6th ed.)

Civil procedure prescribe methods of

enforcing rights or obtaining redress for their
invasion. It allows parties in disputeto claim
and enforce their rights under the laws
 ALL ABOUT CIVIL PROCEDURE
In general, civil procedure involves a study on:

(a) the steps that a party has to take before and after
commencing a civil action;

(b) the documents which a party has to prepare and how the
documents are used;
(c) matters pertaining to the trial between the Plaintiff and
Defendant;
(d) enforcement of judgment; and
(e) appeal
 SOURCES
•The main sources of Civil Procedure:
(a) statutes;
(b) Rules;
(c) Case law;
(d) Practice Directions; and
(e) Forms
Rules of Court 2012
Rules of the Court of Appeal
1994
Rules of the Federal Court 1995
all other status and more
PRELIMINARY MATTERS
1. THE CAUSE OF ACTION
•the cause or set of circumstances that leads up to an
action in court;
•Also refers to every fact which is necessary for the Plaintiff
to prove in order to entitle him to an order or judgment in a
civil action;
•However, it does not include every piece of evidence which
is necessary to prove each fact;
•In other words, a cause of action is a bundle of essential
facts which is necessary for the Plaintiff to prove before he
can succeed in a claim.
 THE

case law
 Board of Trade v Cayzer

• Viscount Dunedin described ‘cause of action’ as that “which makes action possible.
Now, what makes possible an action founded on a contract is its breach. In other words,
a cause of action founded on a contract accrues on the date of its breach. Similarly, the
right to sue on a contract accrues on the date of its breach.”
 Lim Kean v Choo Koon

• “A cause of action 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.”
 Nasri v Mesah

• “a cause of action is the entire set of facts that gives rise to an enforceable claim;
the phrase comprise every fact which, if traversed, the P must prove in order to
obtain judgment.”
 Government of Malaysia v Lim Kit Siang
• “A cause of action is a statement of facts alleging that a plaintiff’s right, either at law
or by statute, has in some way or another been adversely affected or prejudiced by
the act of defendant in an action. Lord Diplock in Letang v Cooper defined “a cause of
action” to mean “a factual situation, the existence of which entitles one person to
obtain from the court a remedy against another.” In my view, the factual situation
spoken of by Lord Diplock must consist of a statement alleging that, first, the
respondent/plaintiff has a right either at law or by statute and that secondly, such
right has been affected or prejudiced by the appellant/defendant’s act.”
•Before a defamation action could be taken, 3 ingredients that
constitute defamation must have taken place i.e.

(i) words that are defamatory to the P;

(ii) the defamatory words refer to the P;
(iii) the defamatory words were published to third parties.

•See Atip Bin Ali.

 Taib bin Awang v Mohamad bin Abdullah

P claimed malicious prosecution against the D on the grounds that he had been
wrongfully prosecuted in the Kadi’s Court.
The P was found guilty in the Kadi’s Court and sentenced to 2 weeks
imprisonment.
When the case was heard, the case in the Kadi’s Court was still under appeal.
In an action for malicious prosecution, the P must prove that:
(a) the defendant prosecuted him;
(b) the prosecution ended in the P’s favour;
(c) the prosecution lacked reasonable and probable cause;
(d) the defendant acted maliciously.
Here, since the prosecution did not end in the P’s favor and the conviction was
still under appeal, it was premature for the P to bring this action. Hence, P’s
claim failed because the cause of action was incomplete.
2. LOCUS STANDI
A right to bring a claim to
court.
 THE

case law
LOCUS STANDI
Salleh Abas L.P. in Government of Malaysia v Lim Kit Siang

“Every legal system has a built-in mechanism to

protect its judicial process from abuse by
busybodies, cranks and other mischief-makers
by insisting that a plaintiff should have a special
interest in the proceedings which he institutes.
This special interest is a nexus between him and
the party against whom he brings his complaints
to court and is known as locus standi.”
 LOCUS STANDI
Salleh Abas L.P. in Government of Malaysia v Lim Kit Siang
His Lordship cited 2 cases i.e.
Lim Cho Hock v Government of the State of
Perak;
Tan Sri Haji Othman Saat v Mohamed Bin Ismail;
In both cases, it was held that the P had locus
standi which can be justified “on the basis that
the plaintiff had a genuine private interest to be
furthered and protected
 LOCUS STANDI
Abdul Hamid CJ in Government of Malaysia v Lim Kit Siang

“locus standi is generally understood to mean the right of a party to

appear and be heard by a tribunal. A litigant is said to have locus
standi, in effect standing to sue in a court of law, if that court
recognizes his or her ability to institute and maintain proceedings
before it.”
 LOCUS STANDI
Abdul Hamid CJ in Government of Malaysia v Lim Kit Siang

•2 important rules to determine locus standi

(a) P must prove an interest in the issues raised in the proceeding;

(b) where the private P relies on an interest in the enforcement of

a public right and not of a private right, standing will be denied
unless the AG consents or the P can demonstrate some special
interest beyond that possessed by the public generally.
 LOCUS STANDI
Hashim Yeop A. Sani S.C.J. in Govt of Malaysia v Lim Kit Siang
•His Lordship adopted the test enunciated in Tan Sri Haji Othman Saat v
Mohamed bin Ismail that:

“The sensible approach in the matter of locus standi in injunctions and

declarations would be that as a matter of jurisdiction, an assertion of an
infringement of a contractual or a proprietary right, the commission of a
tort, a statutory right or the breach of a statute which affects the plaintiff’s
interests substantially or where the plaintiff has some genuine interest in
having his legal position declared, even though he could get no other
relief, should suffice.”
 LOCUS STANDI

Hashim Yeop A. Sani S.C.J. in Govt of Malaysia v Lim Kit Siang

•Thus, in in this case, His Lordship opined that Mr. Lim Kit Siang has no locus
standi to sue because:

“He has not shown that he is more particularly affected than other people.
He has not shown that he has any recognizable legal right which has been
infringed.”
PARTIES AND PROCEEDINGS

How to identify parties in case?

Civil suit :
person who brings claim :
Plaintiff
the other party against
whom the claim is
brought : Defendant
PARTIES AND PROCEEDINGS

Winding up cases
person who files petition :
Petitioner (involves
Judgement Creditor)
Opposite party :
Judgment Debtor
PARTIES AND PROCEEDINGS
Divorce cases
person who files petition :
Petitioner
Opposite party :
Respondent
3. IDENTIFYING THE APPRORIATE COURT AND ITS JURISDICTION

Civil Court v Criminal Court

Electronic Court System

NCVC (New Civil Court)
Civil courts - Contracts, torts, comapnies,
trust, family matters, land matters, etc

Monetary limits and type of cases

Govern by
Subordinate Courts Act 1948
Courts of Judicature Act 1964
4. LIMITATION PERIOD
GENERAL RULE : A claim should
be filed within the time limit
provided by the statute of
limitation or other written
laws.
Limitation Act 1953 (Revised 1981)
Public Authorities Protection Act 1948 (Revised
1978)
Civil law Act 1956
Railway Act 1991
 4. LIMITATION PERIOD
•Rationale: to discourage
Plaintiff from sleeping on his
rights.
•Jumatsah bin Daud & Anor v
Voon Kin Kuet & Anor [1981] 1
MLJ 254:
Time stops to run when the
plaintiff files his writ in court.
 4. LIMITATION PERIOD
WHEN DOES IT START?

“Limitation period does not begin to run until there

is a complete cause of action and a cause of action is
complete when all the facts which are material to be
proved to entitle the Plaintiff to succeed have
occurred.”

Lim Kean v Choo Koon

 4. LIMITATION PERIOD

Nature of claim Limitation Period Statute & provisions

Contract, Tort 6 years Limitation Act 1953, S.6

Limitation Act 1953, s.

Trusts Property unlimited / 6 years
22(1),(2)

Recovery of land 12 years Limitation Act, s.9

COMMENCEMENT OF CIVIL SUIT
Depending on the type of the case

According to the Rules of Court ;

Writ of Summons
Originating Summons
WRIT OF SUMMONS (WS) ORIGINATING SUMMONS (OS)

to be used ONLY in
to be used in cases that
cases that have
have no substantial
potential disputes such
dispute.
as :
application for a
Breach of contract
declaration, summary
Breach of trust
possesion of land
Breach of Duty care
Valid for 6 months &
Valid for 6 months &
renewable
renewable
If the plaintiff uses the wrong mode, the court
will treaat the mistake as IRREGULAR, will not
nullify the proceedings
O.2, ROC 2012
SERVICE OF DOCUMENT

Locally and Abroad

conventional way / electronic filing (e-filing)

registrar signed, sealed, dated the writ - can be extracted and
served to the defendant
o.10 & o. 62 of the ROC - several modes od service of documents
Personal service, AR registered post, ordinary post, subtituted
service - advertisement in newspaper.
if abroad, need to apply leave from the court.
ENTERING AN APPEARANCE
and failure to enter appearance

defendant must respond

within 14 days from the date of writ (O.12 r.4 ROC)
if fails - Judgement in default (JID)
may apply to set aside JID within 30 days
 be used if the P files his case using writ of summons
PLEADINGS GENERAL RULE filed &served within 14 days
if not complied- JID pleadings
if need to amend-(O.20) - leave of court is necessary
Consist of
statement of claim
statement of defense
counterclaim (if any)
O.18 ROC

only material facts NOT evidence

statement must be brief
if irrelevant- will be struck out by the
court
INTERLOCUTORY PROCEEDINGS
to stop plaintiff/defendant from continuing with the case

striking out -O18 r 19- File notice,

support with Affidavit.
summary judgement -
O.14 (P will claim for damages only)
O.14A(court decides based on point
of law)
injunction
FULL TRIAL (O.35 ROC)

•According to Datuk Dr. Hamid Sultan, trial is

“the stage where issues before the court are
determined after hearing of evidence and
argument in open court.”
[Janab’s Key to Civil Procedure, 2019];
JUDGEMENTS
MODES OF ENFORCEMENT OF JUDGEMENT

*WSS- Writ of seizure and sale

*JDS- Judgment Debtor Summon
APPEAL

If any party is unsatisfied with

the judgment of the court, that
party may appeal to a higher
court.
COURTHOUSE