Вы находитесь на странице: 1из 4

Q.

Under Art 121(1B) of the Fed Consti, the CoA has the jurisdiction

(a) To determine appeals from a decision of a HC or a judge thereof,


(b) And such jurisdiction as may be conferred by or under federal law.

Civil jurisdiction of the CoA is set out in s.67(1) of the CJA 1964, whereby it stated COA shall have
jurisdiction to hear and determine appeals, from any judgement or order of any HC in any civil
matters whether made in exercise of its original or of its appellate jurisdiction nevertheless to this or
any other written law regulating the terms and conditions upon which such appeals shall be bought.

CJA actually to be read with the first limb of Article 121(1B)

Also, in Silver Concept Sdn Bhd v Brisdale Rasa Development J GSR, its concluded by that s.44 of the
CJA conferred CoA as an original jurisdiction. It is therefore, necessary for the Apl to make a separate
application to HC before approaching the CoA for an application for stay pending appeal. Silver said
ada original while Metramade said COA dont have orginal jurisdiction.

Thus, its clear under the FConsti and CJA, the CoA has not been vested with any original jurisdiction.
The courts role is purely appellate in nature.

For FC, under Art 121(2) of FConsti, the FC has jurisdiction to

(a) determine appeals from COA or HC,


(b) such original or consultative jurisdiction as in Art 128 and Art 130
(c) other jurisdiction as may be conferred by or under federal law

Though there is no provision made for appeals from HC to FC directly under CJA, the FC can hear
appeals directly from HC pursuant to Art 121(2)(a) of FC. The FC, unlike COA, is vested with original,
appellate and advisory jurisdiction.

Advisory and Exclusive jurisdiction is set out in Art 128 and 130 of FC respectively. Art 128 talks
about FC has j to determine in accordance with any OTHER rules of court, to determine question and
remit case to other court, and FC has j to determine appeals from CoA, HC or a judge provided by
federal law. Art 130 otoh, YDPA may refer to FC for its opinion on any question as to the effect of
provision of this Constitution FC shall pronounce an open court.

In other words, FC has both appellate and original j.

Q.11 (b)(ii)

There are 2 modes or originating process as per O5, R1 which are :

i. writ O5, R2 proceedings in which a substantial dispute as to fact it must be commenced


by way of writ
ii. Originating Summons O5, R3 proceedings by which an application is to be made to the
Court/Judge under any written law
GR, A writ shall be used in civil action in likely with a circumstance whereby there is a substantial
dispute in the facts while OS, is referred to any written law.

But, O5, R1 doesnt apply if its listed under Appendix C stipulated by O94,R2 which is also an
exception to O5, R1.

So, in the current case, the issue of forged document doesnt fall under Appendix C which the
proceedings are governed by specific written law, thus isnt a concern of exception to O5 R1.

Therefore, the question is whether mode writ/OS is suitable to be commenced?

Pesuruhjaya Ibu Kota KL v Public Trustee & Ors, the applicant commenced an action by way of OS.
The Rp contended that the procedure adopted by Applicant was wrong in law because disputed
question of fact and law was involved. It was supposed to be writ.

Also, in the case of National Land Finance Corporative Sociey Ltd v Sharidal Sdn Bhd, the Rp and the
Apl by a S&P agreement had agreed to buy certain immovable property subject to approval of
Foreign Investment Committee. The Rp contended that the agreement became void when the FIC
refused to approve the sale. The trial judge held that the agreement became void and the Apl
appealed to FC stating that they objected Rp taking proceedings by OS instead of Writ. The issue
involved in this case is purely a matter of construction of the S&P agreement between parties. No
other evidence is needed to determine the issue than the massive correspondence that passed
between them and their solicitors. So, the judge is of opinion that the procedural objection raised by
Ap to Rp has no substance.

But there is a case where OS should not be used to commence proceedings. In Ng Wan Siew v Teoh
Sin, the Apl claimed certain docs and oral evidence which the trial judge had admitted which
shouldnt have admitted. The court stated that when its known that there is going to be a conflict of
testimony and necessity for taking parole evidence then the proceedings should be commenced by
writ and a PF if successful may be deprived of any additional costs caused by his having commenced
proceedings by way of OS. Further, the court in this case specifically stated that such objections
should be taken at trial stage and not appeal.

In additional, the case of Abdul Majid v Haji Abdul Razak, the CF that it will refuse to decide question
of facts on an OS. Where evidence need to be led, then the OS was not a suitable process for
determination of the issues raised. In Re Estate of Hj Fatimah, it was stated that applications to
approve a sale under s.94 of the Probate and Administration Enactment 1920 should be by OS and
one of the persons whose rights or interests are sought to be affected should be served.

In the current case, Mok intends to commence an action against Tek and Tok in Court for a
declaration of Tongs will is a forged document. So, the issue here is whether the forged document is
disputed or not. When its known that there is going to be conflict of the subject matter as per Ng
Wan Siew, the proceedings should be commenced by writ. Furthermore, the fact of the validity of
document (whether its forged or not) is certainly a substantive fact which is disputable. Theres no
law that governs to ensure whether its forged or an original piece. So, a substantive, may raise
argument between parties, and hence writ is more suitable than O.S
However, there is also O28 ,R28(1) of the ROC 2012 made provision for the court to order any action
commenced by originating summons to be continued as if begun by writ where it appears to the
court that the proceedings be continued as if cause or matter had begun by writ.

Q. 12 (iii)

Under Subordinate Courts and HC, Therere two modes of originating process
Q is, if the defamation is affirmative and is to be brought to HC in Kuching, what is the
suitable mode of originating process used by Pasu?
GR, A writ shall be used in civil action in likely with a circumstance whereby there is a
substantial dispute in the facts while OS, is referred to any written law.
O.94 R2 is not a concern because defamation doesnt fall under Appendix C
Case : Pesuruhjaya Ibu Kota KL v Public Trustee
Case : Ng Wan Siew v Teoh
So, relating back to current case, Pasu alleged Daya had defamed him. Originally, it is a
disputable fact where if Pasu really is defamed or not.

But in a case where its affirmed that the tort of defamation had taken place taking into
consideration that all of the element of tort defamation has been fulfilled, is there any other
substantive fact which is disputable? The suitable originating process in the current case
hence is O.S whereby it was affirmed, and defamation is governed by a written law as
stipulated under O5,R3 which is the Defamation Act.

Q.13 (i)

GR, Go to lower court because its better to proceed to lower court if both Higher Court and
Subordinate Court have jurisdiction at the same time, because we shouldnt bother with the
HC jurisdiction.

Magistrate s.76 of SCA, MC has jurisdiction to hear and determine any civil cause or matter arising
within local limits of jurisdiction assigned to it, or if no such local limits have been assigned, any
matters arising in any part of local jurisdiction of respective HC. Once SCA is amended, the monetary
jurisdiction of MC is RM25,000 to RM100,000.

Sessions s.65(1)(a) of the CJA RM1million unless 3 exceptions.

HC s.23(1)(a)(b)(c)(d)
So,if the amount of money in question is below than RM100,000 can be brought to Magistrate and if
RM1million < go to SC. Otoh, HC has the jurisdiction for all civil matters, but its better to proceed to
lower court.

But if the A intends to seek for declaration, by virtue of s.65(5)(b), Subordinate of SC has jurisdiction
for declaration.

:: SC

The issue involved in this case is on declaration of c/t to be void due to Restraint of Trade.
GR, OS is more suitable since the issue of c/t is governed by a written law of Contracts Act,
court can look at the document. however, pursuance to the case of

Abdul Majid v Haji Abdul Razak, the CF that it will refuse to decide question of facts on an OS. Where
evidence need to be led, then the OS was not a suitable process for determination of the issues
raised. In the current case, the fact that c/t is void due to restraint of trade may be questionable and
its evidence is needed to be led. This is because, the issue of Restraint of Trade in the contract needs
to be argued whether it exists or not. So, since its disputable, a writ is suitable for this case though
technically the commencement should be O.S

Q.13(ii)

By virtue of s.65(1) (c) of SCA

Subject to limitations contained in this Act, Sessions Court shall have-without prejudice to the
generality of paragraph (b), jurisdiction to try all actions and suits of a civil nature for the specific
performance or recission of contracts or for cancellation. Or rectification of instruments, within the
jurisdiction of the SC.

So, C intends to apply for rectification of a written contract he made with D. So, basically, the Court
which is the most suitable is SC by virtue of s.65(1)(c).

Issue is whether the mode of commencement is OS or writ.


There are 2 modes or originating process as per O5, R1 which are :
i. writ O5, R2 proceedings in which a substantial dispute as to fact it must be
commenced by way of writ
ii. Originating Summons O5, R3 proceedings by which an application is to be made to
the Court/Judge under any written law
Since the contract contains several serious typing erros, therell be dispute to Cs allegation.