Distinguish between jurisdiction and competence, with

examples of the different competence of Courts and

tribunals
Introduction
For an action to succeed, a Court needs to have both jurisdiction and competence.
The aim of this essay is to identify by what is meant by jurisdiction and
competence, and to highlight the main differences between them if any exist,
especially in light that the legislator has used such terms interchangeably.

Jurisdiction
Professor Caruana Galizia defines jurisdiction as the power judicial authorities
exercise in performance of their functions, to hear and decide issues 1. It is the
general power of the Courts to hear and decide issues di far cognizione, di
guidicare, di ordinare e di punire.2
Judicial Jurisdiction has been defined as the power of a political body to subject a
given person or thing to its judicial process. 3Under Maltese Law such powers of
jurisdiction is granted to the judiciary by the Maltese Constitution, provided by any
law for the time being in force in Malta. 4 Such autonomous power is exercised by
the Superior and Inferior Courts, ran by Judges and Magistrates.
Jurisdiction is one of the Presupposti Processuali.5 The plea of jurisdiction must be
raised in limine litis6.

Theories of jurisdiction

1 Professor Caruana Galizias notes on Civil Procedure

2 Biblioteca del Diritto di Legislazione e di Giurisprudenza
3 Ginsburg R.B. (1965) Civil Procedure in Sweden
4 Laws of Malta, Constitution of Malta, Articles 95(1), granting jurisdiction to the
Superior Courts and Article 99 for the inferior Courts.
5 The presupposti processuali are those conditions which need to be satisfied so
that an action can reach its logical end.
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In Common Law, the traditional definition of jurisdiction was based on the Physical
Power Theory7. Seen as an extreme form of jurisdiction, as it was based merely on
presence. It may be argued as inadequate as the Court may exercise jurisdiction
when it is unable to do so with justice. Situations also exist, where the Court should
exercise jurisdiction but fails due to close links that exist between the dispute and
the forum.
As a result the doctrine of forum non conveniens arises, where the Courts have
power to declare defendants non-suited or otherwise stay proceedings on the
grounds that would be oppressive, vexatious or unjust towards the defendant. 8
Although the Maltese Courts have never exercised jurisdiction on mere presence,
presence may play an important role. The court has held that a vehicle involved in a
car accident covered by a third-party insurance policy, meant that the judgement
was enforceable in Malta.9 The Courts have also established that the Maltese Courts
have jurisdiction, even if the judgement can only be partially enforced in Malta. 10 An
exception exists where a judgement is intended to have a declaratory effect and
thus always enforceable and effective in Malta.
Another theory is the subjective theory. This tends towards the safeguard of
subjective rights and towards their reintegration, which is seen as an individualistic
concept. Its shortcoming shows that jurisdiction is eliminated where there is no
subjective right to protect and fails to consider all the legal activity which occurs
during the judicial process as held by Satta.
The objective theory steers towards the realisation of an objective right by applying
the rule of law to the case and its realisation by coercive measures. However if
jurisdiction steers towards such realisation of an objective right, then it should
always move ex officio, however happens only exceptionally, such as contempt of
court. Disputes may also be settled outside Court, such as compromise and
arbitration, however are still regulated by legal provisions

6 This is considered as a dilatory plea and must be raised in limine litis as confirmed
in Edwin Mirabelli noe Vs Silvio Mifsud u Adrian Mifsud noe, Qorti tal-Kummerc,
09/04/1992. However there are instances where the Court can raise such plea ex
officio, as in the Code of Organisation and Civil Procedure, Chapter 12, Article 774.
7 In the US case of Pennoyer vs Neff, it was stated that the physical power theory
is based upon actual control over someone or something present within the
territorial boundaries of the State
8 Laws of Malta, Code of Organisation and Civil Procedure, Chapter 12, Article
742(2)
9 Spiteri Vs Spencer (1957)
10 Azzopardi noe. Vs Guilia et noe. (1911)
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Forms of jurisdiction
There are various forms of jurisdiction. The first distinction to be made is between
voluntary jurisdiction and contentious jurisdiction 11. Voluntary jurisdiction signifies
that it is not a contentious litigation and jurisdiction is only acquired over a person
by virtue of their consent.12 It may be argued that is not a true jurisdiction due to
such voluntary submission. Conversely, contentious jurisdiction recognises and
decides controversies, which ascertains and reinstates rights applicable to concrete
cases rather than to the abstract will of the law.
The second distinction arises between criminal and civil jurisdiction. Previously
commercial matters was considered a separate subject-matter, however has been
absorbed by the Civil Court, The aim of criminal law is that it defines the acts that
may lead to an arrest, prosecution and imprisonment.13Civil law seeks to redress
wrongs by compelling compensation or restitution. 14
Jurisdiction may also be divided into proper, delegated or extended jurisdiction 15.
Proper jurisdiction denotes the jurisdiction conferred directly onto a judge 16, whilst
delegated jurisdiction is the function delegated to another person by a judge to act
in his stead. An example taken from the Criminal Code, is where a magistrate can
delegate to an inspector to establish facts in a criminal inquiry. 17 Extended
jurisdiction exists where jurisdiction extends beyond the normal limits, which can
occur either ex lege or by an agreement between the parties, for instance where,
although a court does not have jurisdiction over a foreigners claim against another
party, if the latter party counter-claims, jurisdiction extends by virtue of such
counter-claim.
Jurisdiction may be ordinary or special. Courts of ordinary jurisdiction are vested
with the whole of jurisdiction over all cases. On the other hand special jurisdiction is

11 Professor Caruana Galizias notes on Civil Procedure

12 http://www.merriam-webster.com/dictionary/voluntary%20jurisdiction [accessed
21 December 2014]
13 http://www.sagepub.com/upm-data/30388_1.pdf [accessed 21 December 2014]
14 Blacks Law Dictionary, 9th edition page 280
15 Professor Caruana Galizias notes on Civil Procedure
16 A dictionary of Arts, Sciences and Miscellaneous Literature, 6 th edition,
Edinburgh, 1923
17 The Laws of Malta, Chapter 9, Criminal Code, Article 546(3)
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that where Courts or tribunals that cannot exercise the right of jurisdiction beyond
the remit assigned to them.

Competence
Competence is defined by Chiovenda18 as the division or measure of power
accorded from the general jurisdiction of the Courts to each specific particular
provision. Thus competence is a measure of jurisdiction 19. Mortara defines
competence as la misura della giurisdizione20. The competent Court who will take
cognizance of the Court should be known beforehand
Competence may be general or specific. General competence is the general power
of the judicial branch to subject persons or things to its process. Conversely, specific
competence describes the power of the Court to hear a specific case. This involves
two concepts; subject-matter competence; the power of the court to hear cases of a
particular nature or monetary value and territorial competence; giving power to a
particular Court to hear a case due to the geographic location of the persons, things
or incidents involved in the proceedings. Competence assumes jurisdiction. Without
jurisdiction, the question of competence does not arise.

Horizontal and vertical competence

Courts may have jurisdiction but for some reason are not competent. Horizontal
competence refers to where a number of courts are on the same level but have
different functions. Three criteria are used to identify the competent court.
The first criterion is the Ratione Valoris, which identifies the competent court
based on value. Mortara argues that this criterion is justified for practical reasons
rather than for reasons of justice.
The Courts of Magistrate have competence to hear cases where the claim does not
exceed Euro 11,646.87. 21 However if it relates to questions of immovable property,
easements, burdens or other rights, the Court of Magistrates do not have such
competence even if the value is within the aforementioned threshold. 22 The Inferior
Courts are also prevented from taking cognizance of a claim, falling within the

18 G Chiovenda, Saggi di Diritto Processuale Civile, 1993

19 In Raymond Calleja Vs L-Avukat Dottor Raymond Pace ET noe 31/01/1996, the
Court held that L-eccezzjoni li kawza ma tkunx ta guisdizjoni tal-Qrati taMalta hi in
effetti eccezzjoni ta l-inkompetenza tal Qorti
20 I. Mortara, Commentario del codice e delle legge di procedura civile 1923
21 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article
47(1)
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jurisdiction of the Small Claims Tribunal.23 The Small Claims Tribunal has
competence to hear cases where of an amount that does not exceed Euro
3494.06.24 Furthermore an uncertain or indeterminate amount 25 is deemed to be
outside the jurisdiction of a court of limited jurisdiction 26.
The second criterion refers to the Ratione materiae, where the Courts
competence is based on the subject matter. For instance the Civil Court, which also
encompasses the Family Court shall take cognisance of Civil and Commercial
matters,27 unless it is within the competence of the Inferior Court.
The third criterion is based on the Ratione loci, which is competence based by
reason of territory. The distinction between the Courts of Malta and the Courts of
Gozo are based on Ratione loci, where the Courts exercise jurisdiction within its
territorial limits over defendants residing therein. The law provides the rules as to
jurisdiction between the several Courts of Malta. 28
There is a fourth criterion, considered temporary which is the Ratione Temporis,
meaning that a particular moment in time a particular Court could take cognizance
of the claim, however it may not always be the competent court, because for
example the action has become time-barred.
Competence may be split vertically, that is between the Courts of first and second
instance. Competence is based by reason of degree. Due to the fact that every
person feels a degree of animosity in defending his rights, 29 rather than leading to a
situation where the judges ability or honesty is called into question, a system of
appeal is granted to such person. In Malta this function is exercised by the Court of
Appeal.
22 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article
47(3)
23 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article 56A
24 Laws Of Malta, Chapter 380, Small Claims Tribunal Act, Article 3(2)
25 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article 747
26 In Middle Sea Insurance PLC et Vs The Cargo Handling Company, the Court cited
Guzeppa Borg VS Maria Mizzi et and stated that Gall-fini tad-determinazzjoni talkompetenza tal-Qorti, gandu jittieed kont mhux biss tat-talbiet attrii imma wkoll
tal-eezzjonijiet tal-konvenut
27 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article
32(2)
28 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article 745
29 Or what he regards as his rights.
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Jurisdiction and Competence in practise

Jurisdiction in Malta is considered as in personam, and it is only exceptionally and
in the States interest when jurisdiction is exercised in rem. The law lists the
persons who are subject to the Civil Courts of Malta. 30 There are exceptions as in the
case of foreign jurisdiction clauses as well as arbitration clauses in contracts
although in the latter, the Court does retain jurisdiction and may give appropriate
orders.31 Also the plea of nullity of judicial acts are admissible if the act emanates
from an incompetent Court32. Additionally at the appellate stage, a judgement may
be declared null, if inter alia it is founded on want of jurisdiction.33
The plea of lack of jurisdiction or competence may be raised when the Maltese
Courts have no jurisdiction, where it is not the competent court, or when the
privilege of being sued in a particular court is given to the defendant, such as a
Gozitan having the right to be sued in Gozo. This is in line with the principle actor
sequitur forum rei34. In the case where there are two or more Courts declaring that
they have jurisdiction, the matter is left to the decision of the Court of Appeal, even
if no appeal was brought in the ordinary way. 35
A retrial may be demanded if a judgement is delivered by a Court having no
jurisdiction, where the action is not within the jurisdiction of the Courts of Malta. 36
It seems to be that the terms jurisdiction, and competence are used
interchangeably but arguably there is a difference between them. The Court has
held that competence is not a grounds of retrial under Article 811(d). 37
30 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article
742(1)
31 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article
742(4)
32 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article 789.
33 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article 790.
34 The plaintiff must follow the forum of the thing in dispute
35 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article 775
36 Laws of Malta, Chapter 12, Code of Organisation and Civil Procedure, Article 811
37 In Guido Sant Fourner nomine Vs Joseph Schembri, Court Of Appeal (inferior
jurisdiction) 23rd April 1971
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However there are some differences between them in that the plea of jurisdiction
needs to be raised in limine litis, or else the defendant will have deemed to have
tacitly renounced to such plea. Sir Antonio Micallef 38 had asserted that Leccezione
per dincompetenza relativa nelle cause ordinarie devessere proposta prima della
contestazione della lite per non farse presumere prorogata la giurisdizione del
giudice.39
Conversely, the plea of incompetence does not need to be raised in liminie litis.
Mandiroli assets that Il codice di procedura civile e` quell insieme di norme nelle
quali e` descritta e disciplinata la suddetta attivita` del procedere. Lattivita` del
procedere - e` descritta e disciplinata dalle norme del codice di procedura civile.40
In fact in Grima Vs Vella,41 the court held that even though the Court may raise the
plea of incompetence ex officio, it doesnt mean that if it fails to do so, if a party
doesnt raise the plea in limine litis, means that the plea has been renounced. This
is on the premise as held in Borg Vs Bartlett, 42 where the Court held that Din ilQorti hija obbligata lit hares u tissalvagwardija fkull decisjoni li taghti l-Ordni
Pubbliku bhal ma hija din il-kwistjoni ta inkompetenza.

Conclusion
From the above it is evident that there is a clear difference between jurisdiction and
competence, even if the legislator did use them interchangeably. However it may be
concluded that jurisdiction refers to the power a Court has whilst competence refers
to limitations established by law to curb such power.

38 Held in Vella Vs Damato, Court of Appeal, 28 th October 1994

39 Micallef, A., Trattato della Procudera Civile, Primo Tomo
40 Azzopardi Vs Behag Et, 05/04/2013
41 Grima Vs Vella, Court of Appeal, 14th April 1997
42 Borg Vs Bartlett, Court of Appeal, 11th May 1992
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