Coordinating jurisdiction of Malaysian courts

WHEN Malaysia was formed by four independent countries coming together to create a new sovereign nation the cornerstone of this nation was the territorial and independent jurisdiction of its courts known as the doctrine of co-ordinate jurisduction.

This is expressed in Article 121 of the Federal Constitution in the following manner: “There shall be two High Courts of co-ordinate jurisdiction and status, namely

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur; and

(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

and such inferior courts as may be provided by Federal Law and the High Courts and Inferior Courts shall have such jurisdiction and powers as may be conferred by or under Federal Law.”

The legislation then moves on to define in respect of the High Court of Malaya on the one hand and High Court of Sabah/Sarawak on the other by way of Section 3 of the Courts of Judicature Act 1964 as to how they should be structured which reads as follow: In the case of the High Court in Malaya, the territory comprises 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 in the case of High Court in Sabah and Sarawak, the territory comprised the States of Sabah, Sarawak and the Federal Territory of Labuan.

Within this framework the jurisdiction of each of these Courts, High Court of Malaya and the High Court Sabah/Sarawak is set out in Section 23(1) of the Courts of Judicature Act 1964 which reads as follows: “Subject to the limitations contained in Article 128 of the Constitution the High Court shall have jurisdiction to try all civil proceedings where - (a) the cause of action arose;

(b) the defendant or one of several defendants resides or has his place of business;

(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.”

The issue of the jurisdiction was discussed as early as 1975 in Syarikat Nip Kui Cheong Timber Contractor v. Safety Life And General Insurance Co. Sdn Bhd. [(1975) 2 MLJ 115] case where it came up for considerations in the following words carrying by Hashim Yeop A. Sani J.

“It is all too clear that both the High Court in Malaya and the High Court in Borneo have separate and distinctive territorial jurisdiction. Article 121 of the Constitution speaks of the two High Courts having ‘co-ordinate jurisdiction’ and the definition of A ‘local jurisdiction’ in the Courts of Judicature Act, 1964 speaks of the territorial jurisdiction of each of the two High Courts.”)

His Lordship then went on to recognize this special arrangement and structure when in the course of his judgment, he said: “After Malaysia Day, a peculiar set-up was established in respect of the judicial powers of the Federation. Article 121 of the Federal Constitution and the Courts of Judicature Act, 1964, set out the jurisdiction of the High Courts. The question is what is meant by “jurisdiction” in the context of the Constitution?”

In Dayasar Cap Sdn Bhd v. CP Ng & Co Sdn Bhd (1990) the, respondent company was incorporated on 1 September 1982.

The registered office of the company was at First Floor, Hockien Association Building, Lot 98-99, Green Hill Road, Kuching, Sarawak.

The petitioner alleged that the respondent is indebted to the petitioner in the sum of $107,357.66 for the price of goods sold and delivered. Hence the petitioner filed the petition to wind up the respondent company

The judge, Abu Mansor J., again adopted with approval the remarks of Hashim Yeop A. Sani J. the words used in Syarikat Nip Km Cheong Timber Contractor case as to the meaning of local jurisdiction and his Lordship had this to say: “While matters can be heard in any court of the courts in Malaya, I am of the view it was certainly not the intention of the legislature for any court in Malaya to assume jurisdiction of a matter arising in or which should be filed in a Borneo Court.

“With respect I agree and adopt what I stated by Hashim J. (as he then was) in Syarikat Nip Kui Cheong Timber Contractor case that the definition of local jurisdiction sets out and determines the territorial jurisdiction of either of the High Courts.

“By this, I rule that since the defendant/respondent company is residing in Kuching, the matter should really be filed in the Borneo High Court, in particular Kuching.”

A more recent case was Hap Seng Plantations (River Estates) Sdn Bhd v. Excess Interpoint Sdn Bhd & Ano [(2016) where the plaintiff had a registered address in Kuala Lumpur and the business address in Lahad Datu, Sabah.

The first respondent (defendant company) had its registered address in Kuala Lumpur.

The second defendant had a registered address in Sandakan, Sabah.

An action was filed by the appellant against the first respondent and second respondent over a fraudulent transfer of land in Sabah through a forged power of attorney by the first respondent

The first respondent applied to have the action transferred to the High Court Kota Kinabalu on the basis of forum convenience and this was granted.

Having been so transferred, the judge in the High Court Kota Kinabalu took the view that the transfer was contrary to the Constitution based on Article 121 and an order was made to refer the issue of jurisdiction to the Federal Court as follows: “Whether the High Court of Malaya has the power or jurisdiction to transfer proceedings to the High Court of Sabah and Sarawak, or vice versa?”

The Federal Court answered the question in the negative on the basis that the High Court of Malaya had no right to transfer the matter to the High Court of Sabah and Sarawak.