Recovering Tenanted Premises

I read with interest Messrs. Azmi & Associates’ 2008 article entitled “Some Tips on Recovering Possession of Land.” In it, the learned author notes inter alia:

“In respect of a terminated tenancy, your action to recover the tenanted premises would be instituted by way of a Summons in the Sessions Court, because Section 65(1) of the Subordinate Courts Act, 1948 gives the Sessions Court “unlimited jurisdiction to try all actions and suits of a civil nature in respect of landlord and tenant.”^[1] (emphasis mine)

The learned author is correct that the Sessions Court has unlimited jurisdiction vis-a-vis landlord and tenant matters. Section 70 of the Subordinate Courts Act 1948 (“SCA 1948”) also provides:

However, with all due respect, the learned author erred when he asserted that an action to recover a tenanted premises would be instituted by way of a summons in the Sessions Court.

Although the Sessions Court has unlimited jurisdiction vis-a-vis landlord and tenant matters, the Magistrates Court also has jurisdiction with regards to the same. The Magistrate Court’s jurisdiction, however, is limited to matters where the amount in dispute is RM100,000 and below.

Section 93 of the SCA 1948 expressly states:

“Provisions of Act relating to Sessions Courts applicable to Magistrates’ Courts

93. (1) Subsections 65(3) and (4) and of sections 66 to 70 and 72 to 74 shall apply mutatis mutandis to Magistrates’ Courts:

    Provided that for the purpose of proceedings in Magistrates’ Courts, paragraph 73(b) shall be read as if the words “one hundred thousand” were substituted for the words “one million”.

(2) Nothing in this section shall operate to extend the jurisdiction of Second Class Magistrates as otherwise limited by this Act.”^[3] (emphasis mine)

Section 70 of the SCA 1948, which grants the Sessions Court the “jurisdiction to hear and determine any action or suit for the recovery of immovable property, and thereupon to issue order to the proper officer of the Court to put the plaintiff in possession of the property,” applies  with the appropriate adjustments^[4] to the Magistrates Court.

As far as I am aware, Section 93’s conferment of jurisdiction to the Magistrates Court has been enacted, at the very least, since 1978, albeit involving a lower monetary jurisdiction. Section 11 of the Subordinate Courts (Amendment) Act 1978 states the following: 

“11. Amendment of section 93

Section 93 of the principal Act is amended by substituting therefor the following—

Provisions of Act relating to Sessions Courts applicable to Magistrates’s Courts

93. (1) The provisions of section 65 (3) and (4) and of sections 66 to 70 and 72 to 74 shall apply mutatis mutandis to Magistrates’s Courts:

Provided that, for the purpose of proceedings in Magistrates’s Courts—(a) section 70(3) shall be read as if—

(i) the words “twelve thousand” were substituted for the words “twenty four
    thousand” wherever they occur; and

(ii) the words ”one thousand” were substituted for the words ”two thousand”; and

(b) section 72 shall be read as if the words “twelve thousand” were substituted for the words “twenty four thousand”.

(2) Nothing in this section shall operate to extend the jurisdiction of Second Class Magistrates as otherwise limited by this Act.” (emphasis mine)

Although at the time of writing landlord tenant matters with an amount in dispute of RM100,000 and below can be heard by the Sessions Court, such matters would fall squarely within the jurisdiction of the Magistrates Court and should thus be filed in the Magistrates Court. 

Having said that, for landlord and tenant matters which fall into the jurisdiction of the Magistrates Court, parties can enter into a written agreement that the Sessions Court shall have jurisdiction to try the action or suit.^[5]

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^[1] “Some Tips on Recovering Possession of Land.” Azmilaw.com. Azmi & Associates. Accessed March 4, 2020. http://www.azmilaw.com/archives/Article_8_some_tips_on_recovering_land_00087247_.pdf

^[2] Subordinate Courts Act 1948. AGC.gov.my. Attorney General’s Chambers. Accessed March 4, 2020. http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%2092%20-%20Subordinate%20Courts%20Act%201948.pdf

^[3] Subordinate Courts Act 1948. AGC.gov.my. Attorney General’s Chambers. Accessed March 4, 2020. http://www.agc.gov.my/agcportal/uploads/files/Publications/LOM/EN/Act%2092%20-%20Subordinate%20Courts%20Act%201948.pdf

^[4] A.X. Fellmeth and M. Horwitz, Guide to Latin in International Law (Oxford, 2009), p. 189: “[mutatis mutandis is] a phrase denoting that a statement applies to matters or things other than those mentioned, with appropriate alterations or adjustments as to the particularities or details.”

^[5] Section 65(3) of the Subordinate Courts Act 1948: “When the parties to an action or suit which, if the amount in dispute or value of the subject matter thereof did not exceed the limit of the jurisdiction, would be cognizable by a Sessions Court, have entered into an agreement in writing that the Sessions Court shall have jurisdiction to try the action or suit, the Sessions Court shall have jurisdiction to try the same, although the amount of the subject matter thereof may exceed the value limit of jurisdiction.”