CIVIL PROCEDURE

WHAT IS CP?
• Deals with the formal steps required to be taken to enforce a
substantive right in a civil court.
• The procedures that apply in cases that are not criminal.
• Rules governing how the court will process a civil case. This written
set of rules determines what pleas, orders, and motions are allowed.
• “The mechanism of the system for the administration of civil justice”
• The purpose of Civil Justice ---
(i) people may vindicate their rights; and
(ii) resolve their dispute under the auspices of the state.
• Ahamad bin Yahya & Anor v Ahmad bin Sulaiman [1972]
2 MLJ 109
• Inland Revenue Commissioners v National Finance
[1981] 2 WLR 722

CASES
Rules for regulating and prescribing the procedure and the
practice to be followed in HC, COA and FC.

Subordinate Courts & HC

• The Rules of Court 2012 ---(applicable to the High Court
Subordinate Courts)
COA
• The Rules of the Court of Appeal 1994
FC
• The Rules of the Federal Court 1995

SOURCES
The Courts of Judicature Act 1964 – See Section 16 &17
Practice Direction
Case laws on procedure Evidence Act
Civil Law Act 1956
The Subordinate Court Rules Act 1955 ---see section 5
 Forms ---
-Yu Oi Yong & Anor v Ho Toong Peng & Ors [1977] 1 MLJ
120
- Foo Yong Fong & Anor v R [1962] 2 MLJ 156

SOURCES
• Are issued from time to time by the registrar or judges of
courts.

Case: Jayasankaran v PP (1983) 1 CLJ 171

• “We are of the view that Practice Note No 2 of 1980 was
intended to be no more than a direction for administration
purposes. It cannot be exalted into a rule of law.”

• Case laws on procedures from time to time complement

the rules.

Practice Directions
• ARE PROCEDURAL LAWS MANDATORY?

• IF THE PARTIES DO NOT COMPLY, WILL THE

STATUS CASE BE AFFECTED?

THINK????
• Taib Awang v Mohamad [1983] 3 MLJ 413
• Lim Kean v Choo Koon [1970] 1 MLJ 158

Cases
CAUSE OF
ACTION
• Means the cause or the set of circumstances
which leads up to an action in court.
• It does not include every piece of evidence which
is necessary to prove each fact but
• only every fact which is necessary for the
plaintiff to prove before he can succeed in an
action.

Preliminary matters
• a cause of action (sometimes called a claim) is a
set of facts sufficient to justify a right to sue to
obtain money, property, or the enforcement of a
right against another party. The phrase may refer
to the legal theory upon which a plaintiff brings
suit (such as breach of contract, battery, or
false imprisonment)
Case: Govt of M’sia v Lim Kit Siang [1965] 1 QB 232
Salleh Abas LP observed:
• “ A cause of action is a statement of facts alleging that a p’s
right, either at law or by the statute…..been adversely affected
or prejudiced by the act of a D in an action”

 Hock Hua Bank Berhad v Leong Yew Chin [1987] 1 MLJ 230. “A
Cause of action is simply a factual situation the existence of
which entitles a plaintiff to obtain from the court a remedy
against the defendant.”

Cooke v Gill, Brett J defined a cause of action to mean “every

fact which is material to be proved to entitled the plaintiff to
succeed.

Cases
 Commencement Date

Contract as soon as the contractual duty is

breached
Negligence Upon occurrence of damages.

Tort Personal injury – the date of

injury
Patent The damage is visible/ occurred

Cause of Action - accrued

• Pirelli General Cable Works Ltd v Oscar Faber and
Partner (1983) 2 WLR 6

The plaintiff’s cause of action will not accrue until damage

occurs, which will commonly consist of cracks coming into
existence as a result of the defect, even though the cracks or
the defect may be undiscovered ...
LIMITATION PERIOD
• Limitation is a shield and not a sword.
• The time is barred based on Limitation Act 1953.
• In general S6(1) LA provides that the limitation period
for breach of contract and tort are six years from the
date on which the cause of action accrued.
• The limitation period for tort of negligence commences at
the time when the cause of action is accrued and not
when it is discovered.

TIME LIMIT – cause of action

• Limitation Act 1953
• Public Authorities Protection Act 1948 –
 section 2 (a): any suit, action, persecution or other
proceeding shall not lie or be instituted unless it is
commenced within 36 months next year after the
act, neglect…..
• Railway Act 1991
• Civil Law Act 1956

SOURCES
CAUSE OF ACTION TIME LIMIT

 Action in Contract &  S 61(1) LA 1953 –shall not be brought after the
Tort expiry of 6 yrs from the date on which cause of
action accrued.
 Action to enforce a  S6(3) LA 1953 - If a judgement has been obtained
recognisance in an action for account --- S6(3) LA : an action
shall not be brought after the expiration of 12 yrs
from the date on which the judgement become
enforceable.
 No arrears of interest in respect of any judgement
debt shall be recovered after the expiration of 6
yrs from the date.
Case: Perwira Affin Bank Berhad v Lim Ah Hee [2004] 3
AMR 699

LIMITATION ACT 1953

CAUSE OF ACTION TIME LIMIT
 Action to recover any  S6(4) LA 1953 – the action recover any penalty
sum recoverable other or forfeiture shall not be brought after the
than a penalty or expiration of 1 yr from the date of action
forfeiture accrued. EXCEPTION and not apply to a fine --
--conviction for criminal offence.

 O46 r2 ROC 2012 – a writ of execution to

enforce a judgement or order may not be issued
without the leave of court when 6 year or more
have lapsed since the date of the judgement or
order.

Cases:  Malayan Banking Bhd v Foo See Moi [1981] 17

 Loh Wau Lian v SEA Housing Corp. Sdn Bhd
[1984] 2 MLJ 280. [1987] 2 MLJ 1
CAUSE OF ACTION TIME LIMIT
to recover money secured by S6(5)(1) LA 1953
any mortgage of or charge on
the land or personal property. S21(1) LA 1953 – no action to recover after the
expiration of 12 years from the date when the right
to received the money accrued.

S21(2) LA 1953 Foreclosure action – no action to

recover after the expiration of 12 years from the
date on which the right to fore close accrued.

Cases:  Mahadevan & Anor v Manilal & Sons(M) Sdn

Bhd [1984] 1 MLJ 266; [1986] 1 MLJ 357

 Sivadevi Sivalinggam v CIMB Bank Berhad

[2018] 1 LNS 511 CA.
CAUSE OF TIME LIMIT
ACTION
Revenue Matters S 8 LA 1953
 To set aside a sale in pursuance of an order
of a Collector or other officer of revenue
 To set aside a sale for arrears of Government/
state revenue or any demands …….
 To set aside any attachment, lease of transfer of
immovable property by revenue
 Against Gov or state to recover money paid
under protest in satisfaction of a claim made by
the revenue authorities on account of revenue..
 One year from the date on which the sale
is confirmed or would otherwise have
become final or conclusive had no such
action been brought…
CAUSE OF TIME LIMIT
ACTION
Recover Land and S 9 LA
Rent  No action can be brought by any person to recover any
land after expiration of 12 years from the date on
which the right of action accrued to him or …
Cases:  Munah v Fatimah [1968] 1 MLJ 54
 Chee Hock Lai v Tan Swee Thai & Ors [1990] 3 MLJ
477-
The plaintiff had purchased land from an administrator of
an estate and entered into possession more than 40 years
ago. The land was never transferred to the plaintiff
despite several requests and demands made by the
plaintiff to the administrator. On the facts of the case, the
court opined that the delay was justified and allowed the
claim of the plaintiff.
CAUSE OF ACTION TIME LIMIT
To recover arrearsof rent S20 LA --6 years from the date which arrears
or damages became due
Case Ungku Sulaiman Abd Majid v Director of Lands &
Mines, State of Johor & Anor [2001] 3 AMR
Abdul Malik Ishak J took the view that if the
property had been wrongly acquired, time
remained at large and the law of limitation would
be inapplicable.

To recover principal S21(1) LA

secured by a charge Action to recover principal secured by a charge on
land or personal property or to enforce such charge:
12 years from the date when the right to receive the
money accrued.

Case Mahadevan & Anor v Manilal & Sons Sdn Bhd

1984 1 MLJ 266 (pg 148 Janab)
CAUSE OF ACTION TIME LIMIT
Fraudulent breach of trust or S22(1) LA
recovery of trust No limitation

Case Palaniappa Chettiar v Lakshamanan Chettiar

[1983] 2 MLJ 177

Action Based on breach of S22 (2) LA

trust An action by a beneficiary to recover trust
property or in respect of any breach of trust
other than a period of limitation is prescribed
by any other provision of the Act shall be 6
years from the date on which the right of
action accrued.
CAUSE OF ACTION TIME LIMIT
Deceased Person S23 LA
 Action in respect of any claim to the personal estate
of a deceased person or to any share or interest in
such estate,
 Whether under a will or on intestacy
 12 years from the date when the right to receive the
share or interest accrued
 To recover arrears of interest or damages in respect
of such arrears is 6 years only

Person under disability, S24 LA

 Minors  If a right of action accrued to a person under
 Mental patients disability,
 Comatose  the action may be brought at any time before the
 Limitation period do not begin expiration of 6 years when such person ceased to be
against a minor until he is 18 under a disability or died , whichever even first
occurred, notwithstanding that the period of
limitation has expired

Case Phua Chin Chew & Orsv M. K. & Ors [1987] 2 MLJ
604
CAUSE OF ACTION TIME LIMIT
Acknowledgement of Debt or Part S26(2) LA
Payment  the right shall be deemed to have
 shall be in writing and signed by accrued on and not before the date of
the person making the the acknowledgment or the last
acknowledgment payment
Cases  Tenaga Nasional Bhd v Kamarstone Sdb
Bhd [2014] 1 CLJ 207
 Yam Kong Seng & Anor v Yee Weng Kai
[2014] 6 CLJ 285
 Syt Binaan Budi Sawmill Sdn Bhd v TNB
[2001] 2 AMR 1854
 OCBC Corp. Ltd. V Philip Wee [1984] 2
MLJ 1
 Bajaj Textiles Ltd v Gian Singh & Co Ltd
[1971] 2 MLJ 133
CAUSE OF ACTION TIME LIMIT

Fraud, Concealment or mistake S29 LA 1953

 the period of limitation shall not begin to run
Fraud : Reason to believe. until the plaintiff has discovered the fraud or
Mistake: Did not know or have the mistake, as the case may be, or could with
reason to believe that the reasonable diligence have discovered it.
mistake had been made.

Cases Credit Corporation (M) Bhd v Foong Tak Sin [1991] 2

MLJ 571
• s29(c) is applicable only where the mistake is an
essential ingredient of the cause of action

Yong & Co v Wee Hood Teck Corporation [1984] 2

MLJ 39

Philips –Higgins v Harper [1954] 1 QB 411

CAUSE OF ACTION TIME LIMIT

Claims against Goverment S38 GPA 1956

 Allows for the defence of limitation to
be raised by the government.

“any written law relating to the limitation

of time for bringing proceedings against
public authorities may be relied upon the
government as a defence in any civil
proceedings against the government”

Government Proceedings Act 1956

CAUSE OF TIME LIMIT
ACTION
The suit, action Section 2 PAPA 1948
prosecution or  shall not lie or be instituted unless it is
proceeding commenced within 36 months next
after the act, neglect, or default
complained …..

Case • Ban Chua Hin Realty Sdn Bhd v Sunny

Yap Chiok Sai & Ors [1989] 1 MLJ
131

Public Authorities Protection Act 1948

• Section 97 Railway Act 1991: Limitation period
shall be three years: the PAPA shall apply

Railway Act 1991

 CAUSE OF TIME LIMIT
ACTION
Dependency claim Section 7(5) CLA
 Within three years after the death
of the person deceased.

Case Kuan Hip Peng v Yap Yin & Anor

[1965] 31 MLJ 252 the writ was
issued 4 days after the 3 years
period. Held :The application to
strike out was allowed.

Civil Law Act 1956

Lee Lee Cheng v Seow Peng Kwang
[1960] 26 MLJ 1
Rinyai anak Kassi v Wong Sie King
[1970] 2 MLJ 82

Cases
CAUSE OF ACTION TIME LIMIT
Claims on the estate of a deceased S 8(3) CLA 1956
person •No proceeding shall be
maintainable in tort against the
estate of a deceased person unless:
proceeding against him were
pending at the time of his
death or
are taken not later than 6
months after his personal
representative took out
representation.

Civil Law Act 1956

• Does a court have power to enlarge
time?
Case: Lee Lee Cheng (f) v Seow Peng
Kwang [1960] 26 MLJ 1
Held: no power to enlarge time.
• ABC Bank enters into a loan agreement with B in June
2014. B needs to pay monthly installment of RM5,000.00
on the 20 day of every month.
• Bank sent notice on 1st June to B demanding B to pay
RM5,000.00 within 2 weeks
• On 16 June, Bank the action at the Magistrate Court.

CASE STUDY 1
• B gave loan to C for RM 100,000.00 in August 2014.
• B sent notice to C demanding C to settle the outstanding
of the loan and interest amounting to RM35,000.00.
within 1 months.

• Advice C and B

CASE STUDY 2
LOCUS STANDI
 Standing in courts.
 The right to appear and be heard by a tribunal.
 an action may not be brought to court by a stranger.
 A condition precedent before a party can initiate an
action.
 A party must have cause of action and locusl standi if not
the court will dismiss the action in limine.

LOCUS STANDI
Government of Malaysia v Lim Kit Siang [1988] 2 MLJ 12
• Abdul Hamid CJ: 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.
 Abd Hamid CJ Malaya explains Various approaches that may
be adopted by court in deciding a Q of locus standi. One
approach is to ask whether the plf. has a cause of action.
i. Another approach is to determine the plf can establish a right
which the court may declare.
ii. Yet another approach is to require the plf to demonstrate a
special injury resulting from the subject matter of the
declaration.
iii. A fourth approach requires the plf to have an interest in the
subject matter of the declaration to be litigated.
iv. A final approach leaves the question of standing to be
determined by the court in the exercise of its discretion.

Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64

• Lim Cho Hock v Government of the State of Perak& Ors
• Tan Sri Haji Othman Saat v Mohamed bin Ismail v
Mohamed bin Ismail

Landmark Cases on Locus standi

• Mohamed Ismail v Tan Sri Osman [1982] 2 MLJ 133
• Atip Ali V Josephine Doris [1987] 1 MLJ 82
• Insan Budi Sdn Bhd v Bank Utama Malaysia Berhad
[2003] 4 AMR 699
• Karpal Singh v Sultan of Selangor
• Dato’ Dr. V Thuraisingam & Anor v Samarkan a/l S.
Ganapathy & Anor [2016] 3 MLJ 227