Ampwalk Management Corporation v Teo Eng Chin (WA-11ANCvC-67-08/2023)

This is an appeal against the decision of the learned Magistrate that struck out the Appellant’s Ex-Parte Notice of Application for a Writ of Seizure and Sale.

On 12 September 2022, the Appellant commenced an action as Plaintiff/Judgment Creditor against the Respondent who is the Defendant/Judgment Debtor in the Kuala Lumpur Magistrates Court Civil Action No: WA-A72-108-09/2022 for unpaid service charges and interest amounting to RM14,902-02 as at 8 September 2022.

The Respondent failed to enter appearance, and subsequently, the Appellant obtained a Judgment in Default of Appearance against the Respondent on 16 November 2022 (Judgment).

Thereafter, on 1 August 2023, the Appellant filed an Ex-Parte Notice of Application for a Writ of Seizure and Sale (WSS) under Order 46 and Order 47 of the Rules of Court 2012 (ROC 2012) for the following orders-

Leave to enforce the JID by way of a WSS against the

The Respondent’s immovable property held under Geran 49896, Lot 822 Seksyen 88A, No. Parcel M1B-7-59, No. Syer bagi Petak 12/2455, Bandar Kuala Lumpur, Daerah Kuala Lumpur, Negeri Wilayah Persekutuan Kuala Lumpur (Property”) be seized to settle the Judgment debt;

A Prohibitory Order be taken out against the Respondent to prohibit the Respondent from transferring, auctioning or leasing the Property and/or its interest until the Respondent fully settles the Judgment debt;

The Prohibitory Order be registered at the Registrar of Titles and/or the Kuala Lumpur Land and Mines Office and/or the relevant Land Office; [5] The WSS was supported by an affidavit affirmed by Yeow Jie Han dated 31 July 2023. ISSUE [6] The Issue is simply, whether a Magistrate Court can issue a Prohibitory Order? ANALYSIS AND FINDINGS [7] The Learned Magistrate in his grounds, referred to the Court of Appeal case of Peh Wee Lee & Anor v. Pendaftar Hakmilik Negeri Sembilan & Ors [2018] 4 MLRA 276; [2018] 5 MLJ 269; [2018] 5 CLJ 681, which decided that only the High Court is vested with the powers concerning land including the execution and sale of immovable property and specifically, to issue prohibitory orders. Thus, struck out the WSS for he does not have the power to grant the prayers above. [8] The Appellant submitted that the Court of Appeal in Peh Wee Lee (supra) did not take into account section 99A of the Subordinate Courts Act 1948 (SCA 1948) that confers jurisdiction to the subordinate courts to enforce judgments. This Court must disagree with the submission of the Appellant. This Court opined that the issue is not pertaining to enforcement of judgments, which clearly the Magistrates Court has jurisdiction. The main issue is, whether the Magistrates Court has jurisdiction to issue a prohibitory order. [9] For clarity, section 99A of the SCA 1948 provides- “Further powers and jurisdiction of courts 99A. In amplification and not in derogation of the powers conferred by this Act or inherent in any court, and without prejudice to the generality of any such powers, every Sessions Court and Magistrates’ Court shall have the further powers and jurisdiction set out in the Third Schedule.”. [10] The Third Schedule of SCA 1948 provides-

“Enforcement of judgment Power to enforce a judgment of the Court in any manner which may be prescribed in any written law.”. [11] Appropriately, Peh Wee Lee (supra) held- “[15] We were of the view that the Sessions Court has no jurisdiction to issue prohibitory order based on the following reasons.” [17] Under s 65(1) of the SCA 1948, the Act expressly provides limitations to the jurisdiction of the Sessions Court by stating "Subject to the limitations contained in this Act". One such limitations is spelt out in s 69. Section 69 specifically provides that the "Sessions Courts shall have no jurisdiction ... relating to immovable property except as provided in ss 70 and 71" (learned counsel for the plaintiffs agreed that ss 70 and 71 of the SCA 1948 did not apply to this case). As such, the Sessions Court is generally not clothed with the necessary jurisdiction to deal with immovable property/land. [19] The word ‘court’ used in s 334 of the NLC is spelt with a small ‘c’. In the interpretation section of the NLC, s 5, there is no interpretation of the word ‘court’ with a small ‘c’, but there is the interpretation of the word ‘Court’ with a capital ‘C’ to mean ‘the High Court in Malaya’. Thus, we concluded a court of competent jurisdiction to issue a prohibitory order for the purposes of s 334 of the NLC is the High Court in Malaya, and not the sessions court. [21] In this appeal, the Prohibitory Order obtained by the plaintiffs was in relation to an enforcement of a Judgment in Default obtained by the plaintiffs against Aidil Chong. The plaintiffs' action in obtaining the Prohibitory Order from the Sessions Court was to prohibit the land owner from any dealing with the said Land. Thus, the plaintiffs' action was an action for the recovery of debt or default judgment and did not fall under the exceptions provided in s 69(a) of the SCA 1948. [22] The proper cause of action that the plaintiffs should have taken was to obtain a prohibitory order at the High Court. The plaintiffs submitted that since the Judgment in Default was issued by the Sessions Court, the application for prohibitory order must also necessarily be made to the Sessions Court under O 47 of the ROC 2012 seeing that under O 47 r 6(a), the word "Court" is spelt with a capital "C" and under O 1 r 4(2) the word "Court" with a capital "C" has been defined to include the Sessions Court. With respect, we were not able to agree with the plaintiffs' submission. We reiterated our interpretation of the relevant provisions of the law referred to before this. Fourthly, it must be remembered that O 1 r 4(2) of the ROC 2012 couched the interpretation of the word "Court" with a capital "C" as "In these Rules, unless the context otherwise requires,...". We, therefore, were of the view that for the purposes of O 47 r 6(a), the "Court" must, in context, refer to the High Court and does not refer to the Sessions Court. [23] Fifthly, O. 47 is in the ROC 2012, which Rules are in the nature of delegated/ subsidiary legislation to the enabling Acts of Parliament. Being subsidiary/delegated legislation, the ROC 2012 cannot provide for matters which are in contradiction with the Acts of Parliament; for the purposes of this appeal, the ROC 2012 cannot override the provisions of s. 69 of the SCA 1948. To do so would be ultra vires the enabling Act.” [12] It is incumbent to note that reference should be made to sections 69(a) and 93(1) of the SCA 1948, in terms of the jurisdiction of the Sessions and Magistrates Court to issue prohibitory orders on immovable property, which clearly provides that section 69(a) ‘shall apply mutatis mutandis’ to the Magistrates courts. These provisions clearly limit the jurisdiction of the Sessions and Magistrates Court to issue prohibitory orders. Undoubtedly, the Magistrates Court does not have jurisdiction in actions, suits or proceedings of a civil nature, relating to immovable property except as provided in sections 70 and 71 (which sections did not apply to this case). [13] Additionally, this is a non-appealable matter as the Magistrate’s Court has no jurisdiction. The law is clear as decided in Peh Wee Lee (supra) that only the High Court is vested with the powers to issue prohibitory orders. [14] Accordingly, based on the ‘Doctrine of Stare Decisis’, the decision of the Court of Appeal in Peh Wee Lee (supra), is binding on this Court and below. [15] Notably, Chapter 2 of the National Land Code (NLC), particularly, section 334 provides “In this Chapter, "prohibitory order" means, where land or an interest in land held by a judgment debtor is to be sold in execution proceedings, an order made pursuant to rules of court by a court of competent jurisdiction prohibiting the judgment debtor from effecting any dealing therewith or from effecting such dealing therewith as may be specified in the order.”. Further, section 5 of the NLC provides that "Court" means the High Court in Malaya, which obviously means ‘a court of competent jurisdiction’ refers to the High Court only. [16] Therefore, it is clear that only the High Court has jurisdiction to issue prohibitory orders. A Magistrates Court does not hold such power. CONCLUSION [17] Accordingly, for all the reasons aforesaid, this Court finds that there is no merit in the Plaintiff’s appeal to warrant appellate intervention (See Ong Leong Chiou v. Keller (M) Sdn Bhd (FC) [2021] 4 MLRA 211; [2021] 3 MLJ 622; [2021] 4 CLJ 821, Tengku Dato’ Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case (FC) [2018] 1 MLRA 263; [2018] 2 MLJ 177; [2018] 2 CLJ 641, Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors (FC), [2020] 12 MLJ 67; [2020] 6 MLRA 193 and MMC Oil & Gas Engineering Sdn Bhd v. Tan Bock Kwee & Sons Sdn Bhd [2016] 3 MLRA 144; [2016] 2 MLJ 428; [2016] 4 CLJ 665). [18] Thus, premised on the above reasons, the appeal is dismissed. -SGD- (SUZANA BINTI MUHAMAD SAID) Pesuruhjaya Kehakiman Mahkamah Tinggi Sivil NCVC1 Kuala Lumpur DATED: 23 SEPTEMBER 2024 PARTIES FOR THE APPELLANT Messrs. Wong Lu Peen & Tunku Alina 21-6, Blok B, The Boulevard, Mid Valley City Lingkaran Syed Putra 59200 Kuala Lumpur RESPONDENT Teo Eng Chin 22, Jalan Pulau Angsa U10/2