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1 Court Jurisdiction

Civil Procedure I (Universiti Utara Malaysia)

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Sources, Inherent Powers & Non-compliance

Civil Procedure: A mechanism by which legal rights and interests are pursued and enforced.
- Procedure helps put the law into motion
- It ensures that the plaintiff’s claim against the defendant and the defendant’s defence
against the plaintiff’s claim are settled in an orderly, just and fair manner.
Primary Sources of Civil Procedure:
- Court of Judicature Act 1974
- Subordinate Courts Act 1948
- Rules of Court 2012 (ROC)
Secondary Sources of Civil Procedure:
- Case law and precedents: Means by which statutes and rules are interpreted and
explained where there exists lacuna or ambiguities, and through which governing
principles are established.

- Practice directions: Administrative direction/instruction/guidelines issued by the

court for which non-compliance will be penalised.
- Such directions are issued when they are deemed necessary for the better
carrying out or giving effect to the provisions of the ROC.
- Help smoothen procedures where loopholes exist or where the procedural
rules create an anomaly.
- Megat Najmuddin v Bank Bumiputra Bhd: Practice directions provide
guidelines for a more effective implementation of the rules of court.
They seek to clarify or highlight such rules and may, to some extent,
modify them, but are not meant to supersede or deviate from court
rules which have been statutorily laid down.
- Supplements the existing rules:
- Explains the proper practice under the rules
- Shows how the rules are to be complied with
- Provide details which may not be included in a particular rule
- Practice directions do not have the force of a rule of court nor can it vary the
force of a rule of court.
- However, non-compliance may result in adverse orders against the
defaulting party.
- Jayasankaran v PP: A practice note is only a direction for administrative
purpose and cannot be exalted into a rule of law.

- Inherent powers:
- The basis of this jurisdiction lies in the authority of the courts to uphold,
protect and fulfil the judicial function of administering justice according to law
in a regular, orderly and effective manner.

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- It is necessary for the administration of justice and is essential to the

existence and proper functioning of the courts.
- A power which helps the courts maintain its authority and prevent its
processes from being obstructed and abused.
- Cocker v Tempess: It is a power considered by all courts and exercised
within their discretion.

- O. 1A: Under any circumstances, regard shall be had to justice.

- O. 92 r. 4: For the removal of doubt, nothing in the rules shall limit or affect
the inherent powers of the court to make any order as may be necessary to
prevent injustice or an abuse of the court processes.

- Scope of inherent powers:

- Where written law which clearly defines the substantive rights of the parties
exist, these will not be disturbed by invoking O. 92 r. 4
- Tan Beng Sooi v Penolong Kanan Pendaftar: The court can only exercise
its powers where the rules appear to be insufficient.
- O. 92 r. 4 is not intended to alter substantive law. It must be
applied to uphold justice and secure fairness in a trial.
- The inherent power is not made to strike off the substantive
law. Thus, where the substantive law has clearly defined the
rights of the parties, the inherent power cannot declare it as
ultra vires.

- Where the rules provide for sufficient remedies, the court will not exercise
its inherent powers.
- Permodalan MBF Sdn Bhd v Tan Sri Datuk Sri Hamzah: Rules cannot
interfere with the exercise of the court’s inherent powers so long as it
deems it necessary to prevent any injustice or any abuse of its own
process. Where the rules contain provisions making available sufficient
remedies, the court will not invoke its inherent powers.
- In this case, where the remedy of an interim injunction was
available to the parties, the court refused to invoke its inherent
powers.

- The court may exercise its inherent powers for the purpose of granting
substantive rights.
- Tan Lay Soon v Kam Mah Theatre: The court had the jurisdiction to
grant the plaintiff an interlocutory mandatory order for preservation of
the subject matter of the suit in aid of enforcing the alleged contractual
obligations (specific performance).
- Pacific Centre Sdn Bhd v United Engineers Bhd: The court’s inherent
jurisdiction can be invoked in order to grant a mareva injunction
(injunction against the property of a party)

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- Bekhor & Co Ltd v Bilton: Jurisdiction to order in aid of mareva

flows from inherent or residual jurisdiction or general residual
discretion to make any order necessary to ensure that justice is
done between the parties.

- The court may exercise its inherent powers to resolve a situation not covered
by the rules (where there exists a lacuna in the law) in order to reach a
decision in the interest of justice
Non-compliance with the rules:
- Observance of the rules of procedure is fundamental to the course of litigation to
achieve justice to the parties. However, a strict adherence to the rules may deprive a
party of his rights.
- Cropper v Smith: The courts ought to consider the overriding interest of justice and
not only technical non-compliance of the rules.

- O. 2 r. 1: Non-compliance to any rules shall be treated as an irregularity and will not

nullify the proceedings.
- Metroinvest Ansalt v Commercial Union: The way in which the court exercises
its powers under O. 2 r. 1 depends on whether it appears that the opposite
party has suffered prejudice as a direct consequence of the irregularity, namely
the failure to comply with the rules. However, it should be interpreted as giving
the court the widest possible power in order to do justice.

- Thus, the court may exercise its discretion to cure the irregularity by way of
amendment or by way of any other order the court thinks fit.
- Beauford Baru Sdn Bhd v Gopala Krishnan: The court allowed an extension of
time to file the notice of appeal and ruled that the bona fide error on the part
of the appellant’s solicitor to file the notice of appeal within the specified
time should be treated as an irregularity and not nullify the proceedings.

- Megnaway Enterprise Sdn Bhd v Soon Lian Hock: In this case, the court found
that the technicalities raised against the defendant were strictly in relation to
non-compliance and disregarding them would not amount to a miscarriage of
justice.
- The court recognised that Beauford’s case demonstrates the new trend
in rejecting preliminary objections founded on technical grounds.

- Feedmeal Malaysia Sdn Bhd v Teh Chow Yeow & Ors: Where the service of the
writ was not done in accordance with the correct procedure, the court found
the non-compliance to not be prejudicial against the defendant and strictly
technical in nature, thus refusing to allow reliance by the defendant on
procedural objections based on technical non-compliance.

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- Amirthanayaki Kumarasamy v Legal Profession Qualifying Board: The High

Court struck out the appellant’s application, which was for a judicial review, on
the ground that it should not have been initiated by way of an originating
summons. On appeal, the Court of Appeal held that as no prejudice was
occasioned to any party in the proceedings, it was unfair to the appellant, who
came to court to seek justice and a fair hearing, to have her application struck
out without a hearing of the merits of the case.
- A mere non-compliance should not prevent justice.

- However, where the non-compliance is so fundamental or serious so as to go to the

root of the legal process, the court is generally reluctant to exercise its discretion to
cure any defect and would proceed to set aside the proceedings (traditional approach)
- Bernstein v Jackson: The court refused to cure the irregularity in this case as
the failure to renew a writ is not a mere irregularity and the act of serving an
expired writ is a defect which goes to the root of the legal process and is
prejudicial against the other party.

- Leal v Dunlop Bio-Processes International Ltd: The court held that serving a
writ against the defendant overseas without first obtaining the leave of the
court was an irregularity of such importance that the court is unlikely to waive
or disregard.
- A party who cannot properly enter through the front door of a rule,
should not be allowed to enter through the back door of O. 2 r. 1.

- Bank of Commerce v Tanjung Petri Enterprise: The applicant’s application for

the appointment of a receiver was not made under a pending suit against the
respondents as required under O. 30. Where the purpose of the application
for appointment was to preserve any property where litigation is pending and
could not stand on its own, the applicant’s non-compliance went to the heart
and core of the matter.

- Lam Kong Co Ltd v Thong Guan & Co Ltd: In an application for specific
performance, the plaintiff entered a default judgment when the defendant
failed to enter appearance contrary to O. 13 r. 6. The non-compliance was so
fundamental and was not curable as its effect was to defeat the right of the
opposing party to the action.

- Nevertheless, under O. 2 r. 2 (new approach), in order to set aside the proceedings,

the non-compliance must have caused:
- A substantial miscarriage of justice, or
- Prejudice that cannot be cured either by amendment or an appropriate order
as to costs.

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Cause of action
‘Cause of action’ as in Cooke v Gill: Every fact which is material to be proved to entitle the
plaintiff to succeed.
- 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.

- A cause of action must be established as it determines:

- The form of proceedings to be taken in court
- The remedy to be granted by the court

- Taib Awang v Mohamad Abdullah: Where the plaintiff, an imam, gave a Friday sermon
at a mosque without a permit, he was later convicted in the Kadi’s court. Pending his
appeal against the conviction, he commenced an action against the defendant for
malicious prosecution. However, the court ruled that his action had failed as it was
incomplete due to the fact that it did not fulfil all the elements of malicious
prosecution, namely that there must have been a previous prosecution against the
plaintiff.

- Government of Malaysia v Lim Kit Siang: The respondent, a politician, applied for a
declaration that the letter of intent issued by the government to UEM in respect of
the North and South Highway contract is invalid and for a permanent injunction to
restrain UEM from signing the contract with the government, which was granted. UEM
and the government applied to the High Court to have the interim injunction set aside
and the suits struck out on the ground that there was no reasonable cause of action,
which was dismissed. On appeal to the Supreme Court, it was held that:
- The respondent’s suit against UEM is unmaintainable and its application to
strike it out should be granted. The respondent’s statement of claim does not
disclose any cause of action in order to enable him to maintain the suit
against UEM.
- He has no legal relationship with UEM, he is a complete stranger to the
company and is not a shareholder neither does he have any interest directly or
indirectly in the running of the affairs of the company nor has the company
done any wrong to the respondent or deprived him of his right and privilege.

- Sio Koon Lin v SB Mehra: The defendant agreed to pay a sum of money to the plaintiff
towards a partnership account by instalments on the 12th day of each succeeding
month. The agreement did not provide that in case of default, the remaining
instalments would become immediately due and payable. On 7 th October, but before
the due date, the plaintiff took out a writ claiming the remaining payments. Held:
Since no instalments were due on 7th October, the respondent did not have any cause
of action as his right to any instalment did not arise until the date for the payment of

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that particular instalment had arrived (on the 12th day of the month). Thus, the
respondent’s cause of action in this instance was incomplete.

- Simetech Sdn Bhd v Yeoh Cheng Liam Construction Sdn Bhd: A cause of action must
arise before a writ is issued and the court will not allow an amendment to be made
to include a new cause of action which has arisen only after the issuance of the writ.
Locus standi:
- Atip Ali v Josephine Doris Nunis: The defendant filed a suit against a former Chief
Minister for breach of promise to marry and later discontinued the suit. The members
of the political party of that former Chief Minister believed that the defendant was
insulting their honour, and thus the plaintiff sued her for defamation. Held:
Defamation is a personal action maintainable by the person defamed and not by
individuals who are remotely connected to the defamation. The plaintiff’s claim was
rejected as he has no locus standi to sue the defendant for defamation as the
defamation was only addressed to the former Chief Minister, and not the plaintiff.

- The rule as to locus standi (against public authorities) applicable in Malaysia is as

stated in Boyce v Paddington Borough Council:
- A plaintiff can sue without joining the Attorney-General in two cases:
- Where the interference with the public right is such as that some
private right of his is at the same time interfered with; or
- Where no private right is interfered with, but the plaintiff, in respect of
his public right, suffers special damage peculiar to himself from the
interference with the public right
- Thus there is a strict requirement that the applicant, to acquire locus standi,
has to establish infringement of a private right or suffering of a special
damage.

- Where the plaintiff has a genuine private interest to be furthered and protected:
- Lim Cho Hock v Government of the State of Perak and Others: The plaintiff, who
was a Member of Parliament, a member of the Perak State Legislative
Assembly and a ratepayer within the area of the Ipoh municipality, challenged
the legality of the appointment of the Menteri Besar Perak as President of the
Ipoh Municipal Council and was held to have locus standi to do so.

- MTUC v Menteri Tenaga, Air Dan Komunikasi: A Concession Agreement was

signed between the Government of the State of Selangor, the Federal
Government and SYABAS. As agreed, SYABAS was entitled to increase the
water tariffs if it managed to achieve a 5% reduction in the non-revenue water.
An Audit Report confirmed that SYABAS had achieved the reduction, thus they
proceeded to increasing the water tariffs. MTUC applied to the Minister for a
copy of the Concession Agreement and the Audit Report, but was refused
because the documents were classified. Upon the refusal, an action was

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initiated by MTUC. Held: MTUC has the locus standi to bring the action upon
proving that it was adversely affected by the Minister’s decision not to disclose
the two documents.
- Where the applicants were paying for water consumption within the
area covered by the concession agreement, they had a real and
genuine interest in the subject matter. The applicants do not have
alternative access to treated water, thus having no choice but to pay.
- Nevertheless, despite having locus standi, MTUC was not given the
right to access the documents. It had failed to show that it has a
statutory right to the documents, thus by virtue of Section 2 of the
Official Secrets Act 1972, the documents were official secret
documents.

- However, in Government of Malaysia v Lim Kit Siang: The respondent did not have
locus standi, whether as a politician or a road and highway user. As a politician, the
respondent’s remedy in the matter does not lie with the court, but with the Parliament
and the electorate. As a road and highway user, he also has no locus standi as there is
nothing to show that he would be prevented from using roads and highways, already
constructed or proposed to be constructed. If he objects to the tolls that are to be
imposed for using the proposed highway, he has, like any other users, an option either
to use the highway or to use old or other roads.

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Limitation (Limitation Act)

Once a plaintiff has ensured that his cause of action is complete, he must commence an action
within the limitation period, otherwise his remedies will be time-barred.
- Where an action is not commenced within the limitation period, the defendant is
entitled to use that ground as an absolute defence.
- Credit Corporation v Fong Tak Sin: The doctrine of limitation is based on two
considerations:
- There is a presumption that a right not exercised for a long time is non-existent
- It is necessary that matters of right should not be left too long in a state of
uncertainty or doubt or suspense.
- Fong Tak Sin: The objective of limitation law is to discourage plaintiffs from sleeping
on their actions, and to have a definite end to litigation.

- Limitation law as it stands is very strict and rigid and leaves no room for the exercise
of judicial discretion to extend time.
Limitation periods: The general rule is that the period of time will begin to run from the date
the cause of action accrues.
- Action founded on a contract or tort (Sec. 6(1)): Six years from the date on which the
cause of action accrued
- Contract: Six years from the date of breach of contract
- The plaintiff must be able to prove:
- The existence of a valid contract
- The breach of contract by the defendant

- Tort: Six years from the date the damage occurred

- The plaintiff must be able to prove:
- The existence of a duty of care
- A breach of such duty of care by the defendant
- The damage or injury that the plaintiff suffered as a result of the
breach

- Fong Tak Sin: Time begins to run from the date of the damage although, at the
time, the plaintiff does not know the defendant’s identity as knowledge of the
defendant’s identity is irrelevant and not required in the statute.
- The respondent, a taxi driver was involved in a vehicular accident on 18
June 1979. He initiated an action on 16 June 1984, but only on 15
August 1984, were the appellants discovered to be the owners of the
vehicle. Four years later, in 1988, the respondent applied to add the
appellants as the third defendant of the suit. Held: An application to
add or substitute a new party to an action after the expiration of the
limitation period should not be allowed as it would be unjust when the

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limitation had run in the defendant’s favour as it would have the effect
of depriving him of his right of a valid defence.

- Common Law and Malaysian position on latent injury or damage: Knowledge

of the tort is not a requirement as the plaintiff himself has a duty to be vigilant
in regards to his rights.
- The cause of action accrues at the date when physical damage occurred
or injury is suffered by the plaintiff, not when it is said to be
discovered.

- Pirelli Cable Works v Oscar: Where the defendant was hired to build a chimney,
the cause of action accrued at the date when the first crack on the chimney
occurred and not when the plaintiff could diligently have discovered it. Since
the date when the plaintiff discovered it was beyond the limitation period, the
plaintiff’s action was time-barred.

- Cartledge v Jopling: The plaintiff worked in a steel factory and contracted a

disease which slowly caused damage to his health. When the plaintiff
discovered the damage, it was already well over six years. Thus, the action was
held to be time-barred.

- Professional negligence:
- Forster v Outred: In 1973, the plaintiff executed a mortgage deed, in
which she charged her house in favour of a loan to her son. When her
son failed to pay the loan, the bank sought to enforce the security. In
1980, the plaintiff sued the defendants alleging negligence for failure
to properly explain the effect of executing the deed. Held: The action
was statute-barred as the cause of action accrued when the plaintiff
suffered damage arising from the deed, namely when she executed it.
- However, in Wardley Australia v State of Western Australia: The court
overruled the decision in Forster v Outred in finding that there is no
cause of action until the likelihood of the plaintiff suffering from
losses is fulfilled. Thus, once the events which leads a party to suffer
losses has occurred, only then will a cause of action accrue.

- Action founded upon any judgment (Sec. 6(3)): Twelve years from the date on which
the judgment became enforceable

- Action to recover land (Sec. 9(1)): Twelve years from the date on which the right
accrued
- Ponnusamy v Nanthu Ram: Where the action arose out of a breach of contract,
the defendant sought to invoke the limitation period of six years. Held: Where
the right sought to be enforced was that to recover land, Sec. 9 has expressly
provided that, subject to certain exceptions, the period in relation to actions

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to recover any land shall be twelve years and it is clear that this applies to all
actions to recover land irrespective of whether they are founded on contract
or otherwise.
- Nasri v Mesah: The plaintiffs sought for specific performance of the agreement
and to obtain the land by a judgment of the court. Held: Where the action was
essentially for the recovery of land, the period of limitation would be twelve
years and not six.

- Action for fraudulent breach of trust or recovery of trust property or proceeds of such
property in the possession of trustees (Sec. 22(1)(a) & (b)): No limitation
- Palaniappa Chettiar v Lakshamanan Chettiar: The issue of limitation does not
arise in such cases.

- Action for breach of trust other than fraudulent breach of trust (Sec. 22(2): Six years
from the date on which the right of action accrued.
- Thorne v Heard: The plaintiff’s claim was time-barred on the ground that his
cause of action accrued in 1878, when the defendants committed an innocent
breach of trust in allowing the solicitor to receive the surplus sale monies that
was supposed to be given to the plaintiff to satisfy the debt due, and not in
1892, when the plaintiff discovered the solicitor’s act.

- Dato Wira Nordin v Rajoo: Where the respondents sought to invoke Sec. 22(1)
which does not impose a period of limitation, the court found this to be
inapplicable as the limitation period to claim for damages arising from a breach
of trust was not more than six years from the date the right of action accrued.
As the date of breach was in 1996 and the respondents sought for damages six
years later, the action was held to be time-barred.

- Action in respect of any claims to a deceased’s personal estate or any share or interest
of such estate (Sec. 22(3)): Twelve years from the date when the right to receive the
share or interest accrued.
Sec. 3: The Act shall not apply to any action or arbitration which a limitation period has been
prescribed or to any action or arbitration to which the Government/Government of any State
is a party.
Limitation period under other statutes (takes precedence over the Limitation Act):
- Sec. 2(a), Public Authorities Protection Act (PAPA): Any civil action instituted against
the Government (civil servants or government agencies), where the wrong was
committed in the execution of any written law or any public duty or authority, must
commence within thirty-six months from the date of the wrongful act.
- Bradford Corporation v Myers: The act is one which is either an act in the direct
execution of a statute, or in the discharge of public duty, or the exercise of the
public authority. The application of the Act assumes that there are duties and

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authorities which are not public, and that in the exercise or discharge of such
(private) duties or authorities, the protection does not apply.

- Lee Hong Ning v Government of Malaysia: The case concerned the non-
payment of monies due and owing under a series of building contracts entered
into between the appellant, the contractor and the government. Where the
period of three years was exceeded, the government sought for protection
under the provision. However, it was held: Where an action has been brought
for something done or omitted to be done under an express contract, Sec. 2
of PAPA will not apply as it will not protect the government for an action
purely arising from a breach of a private contract.
- Where the non-payment of a contract does not fall within the scope of
‘public duty’ under the provision, it will not protect the government in
cases of an intentional delay of payment.
- Thus, in this case, the limitation period for contract under Sec. 6(1) of
the Limitation Act applies, allowing the appellant to take action against
the government where the period of six years had yet to lapse.

- Ban Guan Hin Realty Sdn Bhd v Sunny Yap Siok Chai: The allegation of
fraudulent usage of money paid to the customs authorities did not fall within
the ambit of ‘public duty’ and thus, protection under the PAPA could not be
invoked.

- Sec. 7(5), CLA: Within three years after the death of a person, a dependency claim can
be made by his dependants.
- Kuan Hip Peng v Yuan Yin: The plaintiff claimed compensation for loss arising
from the death of his father as a result of the alleged negligent driving of a
motor vehicle owned and driven by the defendants. However, where the writ
was issued four days after the prescribed three-year period, the claim was
found to be time-barred.

- Sec. 8(3), CLA: An action in tort against the estate of a deceased person is maintainable
where the cause of action was pending at the date of his death, or the action is taken
within six months after his personal representative has taken out representation
(extracted order from the court)
- Affirmed in Airey v Airey
- O. 16, r. 6A: An executor/administrator cannot be sued until the grant of
probate/administration is extracted.
- Yong Siew Choon v Kerajaan Malaysia: An action may be commenced and
maintained by or against the estate of a deceased after, and only after, letters
of representation have been extracted.
- P Govindasamy Pillay v Lok Seng Chai: An ‘administrator’ has not fully clothed
himself with that status until he has extracted the grant.

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Extension or postponement of the limitation period:

- The courts have no power to extend or postpone a limitation period prescribed in a
statute, unless the statute expressly provides for it.
Disability (Sec. 24(1), Limitation Act):
- A person whose right accrues when he was suffering from a disability may commence
action six years from the date when such person ceases to be under a disability or
died, whichever event occurred first.
- Sec. 2, Limitation Act: A person shall be deemed to be under a disability while he is an
infant or of unsound mind.

- Where the limitation period is prescribed under PAPA:

- Phua Chin Chew & Ors v KM & Ors: The respondent, a teacher, was suffering from
schizophrenia and had been in and out of the hospital for treatment. On June 29, 1977,
while labouring under an attack of schizophrenia, the respondent wrote a letter to the
appellants purporting to resign from his service as a teacher by giving one month’s
notice. The said letter of resignation was accepted by the appellants who terminated
his services accordingly. The appellants allegedly knew that the respondent was
labouring under a mental illness and should not have accepted the letter of
resignation. In June 1982, the respondent’s brothers applied to court to appoint
themselves as the respondent’s Committee to manage his affairs as it was unlikely
that the respondent would recover. The Committee filed a suit on June 2, 1983. The
appellants applied to strike out the suit on the ground of limitation. On appeal, the
court held:
- The provisions of Secs. 24 and 33(1) of the Limitation Act should be read
subject to Sec. 2(a) of PAPA.
- Sec. 33(1), Limitation Act: The Act shall apply to proceedings by and
against the Government in like manner as it applies to ordinary
proceedings.
- Where the respondent was suffering from a mental illness, his disability to
institute legal proceedings ceased when a Committee was appointed under
the Mental Disorders Ordinance 1952 to manage his affairs.
- Since the action is against the Government, the limitation period should be
thirty-six months as under Sec. 2(a) of PAPA.
- The six year period under Sec. 24 of the Limitation Act only applies
where the Government is not a party.
- The limitation period of three years in this case (where the
government is a party) began to run from the date of the appointment
of the Committee and not from the date of the letter of resignation or
the acceptance by the Government of the offer to resign.
- In the present appeal, since the Committee was appointed on June 13, 1982
and the suit was filed by the Committee on June 2, 1983, it was instituted well
within time and therefore not time-barred.

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- Where the limitation period is prescribed under the CLA:

- E.g: Where a father dies and his infant son wishes to make a dependency claim
under Sec. 7(5) of the CLA, the son’s right of action will only commence once
he reaches eighteen years old (age of majority). Thus, the limitation period of
three years stipulated under the provision will only begin to run from the
date the son reaches eighteen years of age.

- Only where a limitation period has not been prescribed in another statute will
the limitation period of six years under Sec. 24 of the Limitation Act apply.
Revival of cause of action on acknowledgment and part payment (Secs. 26 – 28, Limitation
Act):
- Sec. 26: It arises in three types of cases where a right of action has accrued:
- To recover land and the person in possession acknowledges the title of the person to
whom the right accrued.
- The right is deemed to have accrued on and not before the acknowledgment.
- E.g: Where the buyer paid for the land in March 1995 and the seller
acknowledges that he has not transferred the title in May 2000, the right of
action is revived in May 2000.

- To enforce a charge and the chargee makes any payment.

- The right is deemed to have accrued on and not before the date of the last
payment.

- To recover any debt or other liquidated pecuniary claim, or any claim to the personal
estate of a deceased person or to any share or interest therein, and the person liable
or accountable acknowledges the claim or makes any payment in respect of the debt.
- Good v Parry: There must be an admission that there is a debt or other
liquidated amount outstanding and unpaid. Even though the debtor says in
the same writing that he will never pay it, nevertheless, it amounts to a good
acknowledgment.
- Consolidated Agencies Ltd v Bertram Ltd: The language of the debtor must
amount to an unequivocal admission of a subsisting debt.
- Sim Siok Eng v Kong Ming Bank Bhd: When payment of the interest or principal
is made by the debtor, the limitation period runs from the time of payment
and not on the date when the loan is made.

- Three kinds of acknowledgment as in Wee Tiang Teng v Ong Choon Hoi:

- An acknowledgment by the debtor that a debt subsisted in the past,
but not at the time of the acknowledgment
- An acknowledgment that it subsists at the time of the
acknowledgment
- An acknowledgment that it may subsist in the future, but not at the
time of the acknowledgment

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- Sec. 28(4): An acknowledgment of any debt or other liquidated pecuniary claim

shall bind the acknowledgor and his successors.

- KEP Mohamed Ali v KEP Mohamed Ismail: The respondent had acknowledged
that a sum of $100,000 was due under an agreement dated April 24, 1967
made between him and the appellant. The appellant in a previous action sued
for $100,000, but the Judicial Commissioner held his action was statute barred
as the period of six years had lapsed. On appeal, the appellant adduced
evidence that he and the respondent had entered into a new agreement on
March 23, 1976 where the appellant undertook that upon payment of $90,000
by the respondent within nine months, he would withdraw his suit. In
determining whether the new agreement amounted to an unequivocal
acknowledgement of debt which constitutes a fresh accrual of cause of action
from the date of the agreement, the court held:
- The new agreement amounted to an acknowledgement that the debt
of $100,000 was still due and owing to the appellant. Thus, the
limitation period shall begin to run from the date of the new
agreement.
- The court looked at the construction of the new agreement and was of
the view that it was no more than a request by the appellant for the
respondent to solve $100,000 of the debt but for a smaller amount of
$90,000 which amounted to sufficient acknowledgement.
- Thus, the action was not statute-barred.

- Sec. 27: Every acknowledgement made must be in writing and signed by the person
making it.
Fraud, concealment and mistake (Sec. 29, Limitation Act)
- The limitation period does not begin to run until the plaintiff discovers the fraud,
concealment or mistake, or could with reasonable diligence have discovered it.

- However, the provision does not apply where a property is purchased for valuable
consideration by a bona fide purchaser:
- Not a party to the fraud and did not at the time of the purchase know, or have
reason to believe that fraud had been committed
- Not knowing or having reason to believe that a mistake had been made

- Sec. 29(a) & (b): An action based upon the fraud of or the concealment of fraud by the
defendant:
- Beaman v ARTS Ltd: The plaintiff left certain valuables with the defendant for
safekeeping. However, during the war when the property was released to the
authorities as alien property, the defendant informed them that such property
was of no value. The property was then donated to the Salvation Army. The
plaintiff returned and instituted an action against the defendants. Held: The

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conduct of the defendants in breach of the confidence that the plaintiff had
placed in them and in keeping her in ignorance of the wrong that they had
committed by failing to inform her of what they had done amounted to a
fraudulent concealment.

- Kitchen v Royal Air Force Associations: The word ‘fraud’ is not limited to
common law fraud or deceit.
- No degree of moral turpitude (vileness; wrongdoing) is necessary to
establish fraud within the provision.
- The word ‘fraud’ goes beyond common law fraud and includes
equitable fraud, namely conduct, which having regard to some special
relationship between the parties concerned, is an unconscionable thing
for one to do towards the other.

- Lim Yoke Kong v Sivapiran Sabapathy: The respondent was negligently knocked
down on the side of the road by the appellant who was riding a motorcycle.
The solicitors for the respondent attempted to trace the insurer of the
motorcycle but were unable to do so until after the expiry of the limitation
period. Held: The appellant, by intentionally refusing to come forward in
response to the Motor Insurers’ Bureau circular letter after all reasonable
attempts to trace and identify the insurance company had been made,
caused the respondent’s right of action to be concealed by fraud of the
company, and as such the six-year limitation period which had expired should
be postponed to the date when the identity of the insurance company was
discovered by the respondent.
- Where the initial right to sue had been concealed, the limitation period
should be postponed due to the fraud of the insurer in withholding
itself from being identified.
- Where the right of action is concealed by fraud, the standard of proof
required is lower and a mere unconscionable conduct suffices.

- Sec. 29(c): An action for relief from the consequences of a mistake:

- Fong Tak Sin: The failure to add a party to the suit within the limitation period
does not fall within the ambit of Sec. 29.

- Phillips-Higgins v Harper: The plaintiff, a partner in a firm of solicitors, was

underpaid in her share of profits. She sued to recover the arrears after the
limitation period had expired on grounds of mistake under the third limb. Held:
The third limb did not apply where the right of action had been concealed from
the plaintiff by mistake. It only applies if the mistake had been concealed by
way of fraud or an unconscionable conduct.

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Civil Courts and Jurisdiction

- Jurisdiction: The extent of the authority of a court to administer justice, with reference
to the subject matter, as well as the local and pecuniary limits within which the court
has power to entertain the action presented before it.
Monetary jurisdiction of the Subordinate Courts:
- Magistrate’s Court:
- First Class Magistrate Court:
- Sec. 90, SCA: All actions where the amount in dispute or value of the
subject matter does not exceed RM100,000

- Second Class Magistrate Court

- Sec. 92, SCA: All actions where the amount in dispute or value of the
subject matter does not exceed RM10,000

- Sessions Court:
- Sec. 65(1)(b), SCA: All actions where the amount in dispute or value of the
subject matter does not exceed RM1,000,000
- Exception under Sec. 69: It shall not have jurisdiction over civil
proceedings relating to immovable property; specific performance or
rescission of contracts; injunction; cancellation or rectification of
instruments; trusts; accounts; declaratory decrees; issue or revocation
of grants of representation of estates; legitimacy; guardianship or
custody; validity or dissolution of any marriage.
- Sec. 65(1)(a), SCA: Unlimited monetary jurisdiction to try all actions involving
motor vehicle accidents and tenancy disputes.
Jurisdiction of the High Court:
- Art. 121(1), FC: There are two High Courts of co-ordinate jurisdiction; the High Court
of Malaya and the High Court of Sabah and Sarawak.
- The High Court has:
- Unlimited jurisdiction to hear all civil matters, subject to Art. 128, FC (concerns
the validity of written law made by the Parliament/State or any dispute
between the Federal Territory and the States)
- An appellate jurisdiction, namely to hear appeals from the Subordinate Courts
Local jurisdiction of the High Court:
- Sec. 3, CJA, ‘local jurisdiction’:
- In the case of the High Court of Malaya, the territory comprised in the eleven
States of Malaya and the Federal Territory of Kuala Lumpur
- In the case of the High Court of Sabah and Sarawak, the territory comprised in
the States of Sabah, Sarawak and the Federal Territory of Labuan

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- Sec. 23(1), CJA: The High Court shall have jurisdiction to try all civil proceedings where:
- (a) The cause of action arose; or
- (b) The defendant or one of several defendants resides or has his place of
business; or
- (c) The facts on which the proceedings are based exist or are alleged to have
occurred; or
- (d) Any land the ownership of which is disputed is situated within the local
jurisdiction of the Court and where all parties consent in writing within the
local jurisdiction of any other High Court.

- Syarikat Nip Kui Cheong Timber Contractor v Safety Life and General Insurance Co Sdn
Bhd: Both the High Court in Malaya and the High Court in Borneo have separate and
distinctive territorial jurisdiction. Thus, despite their concurrent jurisdiction, a matter
which arose in Sabah and Sarawak cannot be resolved in a High Court of Malaya.
- The plaintiffs were from Sabah, while the defendants were from Kuala Lumpur,
and the cause of action accrued in Sabah. The issue was whether the plaintiffs
were entitled to sue the defendants in Peninsular Malaysia as a firm. Held: A
matter which arose in Sabah and Sarawak must be resolved within the
jurisdiction of its own High Court.
Principle of forum non conveniens:
- Sova Sdn Bhd v Kasih Sayang Realty: The cause of action accrued in Penang, while both
parties lived in KL. The plaintiff instituted the case in the High Court of Alor Setar and
the defendant applied to strike out the case for lack of jurisdiction. Held: Where the
High Court of Alor Setar is but another branch of the High Court of Malaya, it has
concurrent jurisdiction and thus, has jurisdiction to hear the case. However, it was not
the proper or convenient forum to determine the dispute between the parties.
- The principle of forum non conveniens is that, when choosing the right forum
or court, it must not put the defendant in a state of inconvenience.

- Where a court is found to not be the proper or convenient forum to determine the
dispute, the plaintiff must apply to transfer the case to another State, subject to the
leave of court to be granted by the court of origin.

- BBMB v Melewar Holdings Sdn Bhd: Where the cause of action arose in Kuala Pilah
and the subject matter was situated in Kuala Pilah, despite the several defendants
residing in KL and their contention that it would be a matter of convenience for the
case to be transferred to KL, the court rejected their application to transfer the case
to the High Court of KL.

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Contracts made outside the jurisdiction:

- Lam Kok Trading v Yorkshire Switchgear: The defendant company was incorporated in
England and had a registered office in England. The defendants had not at any time
established a place of business in Malaysia. A contract between the parties was made
outside Malaysia, the breach of which also occurred outside Malaysia. Thus, a
Malaysian court had no jurisdiction to deal with the matter, and the application to set
aside the proceedings must be allowed.
Parties from different States:
- Distillers Biochemicals v Thompson: An English company manufactured and sold
prescription drugs in England to an Australian company, and failed to warn the
Australian company of the harmful effect the drug has on a foetus if it were consumed
by pregnant women. The plaintiff’s mother, whilst pregnant, purchased the drug in
New South Wales, Australia, and as a result, the plaintiff was born with defective
eyesight and without arms. The plaintiff then proceeded to take action against the
English company in the Supreme Court of New South Wales. Held: Where the purchase
was made in New South Wales, the plaintiff’s cause of action arose within the
jurisdiction.

- Mee Ying v Che Jah: The plaintiffs, jewellers in Singapore, sold jewellery to the
defendant in Singapore. The defendant refused to pay and alleged that the breach was
in Singapore. The plaintiff sued the defendant in Kota Bharu as the defendant resided
there. The defendant objected. Held: Limbs (a) to (d) of Sec. 23(1), CJA must be read
disjunctively in that so long as one limb is satisfied, the High Court in question has
the jurisdiction to hear the case. In this case, the High Court in Kota Bharu had
jurisdiction as Sec. 23(1)(b) was satisfied.
Ousting (overthrowing) the jurisdiction:
- Elf Petroleum v Winelf Petroleum: Despite the parties having agreed for Singapore law
to apply in the event of a dispute, the court held that a choice of law clause does not
oust the jurisdiction of the Malaysian courts to try any action arising out of the
agreement.

- American Express International Banking Corporation v Tan Loon Swan: Where a choice
of law clause in the facilities agreement provided for the rights of the parties to be
governed by Singapore law, the respondent contended that the Malaysian courts had
no jurisdiction to hear the case. Held: Where the respondent had entered appearance,
filed his defence, and amended and re-amended his defence, the respondent had
clearly submitted to the jurisdiction of the Malaysian courts and in any case, the
court saw no reason why a court in Malaysia where the respondent resides is not the
forum conveniens. Thus, the choice of law clause in this instance could not oust the
jurisdiction of the court.

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