Suffian LP:

There are two judgments in this appeal, one by the learned Chief Justice of Borneo and the other by Raja Tan Sri Azlan Shah FJ. In their absence I shall read the one by the learned Chief Justice first and then the other one.

Lee Hun Hoe CJ (Borneo) (read by Suffian LP): As a result of an accident on 4 May 1971 near Perak Caves, Batu 4'bd, Kampong Tawas between respondent's motor vehicle No. BAA2503 and second appellant's motor vehicle No AC8967 driven by first appellant the former sued the appellants in the Magistrate's Court, Ipoh, for negligence in the sum of $509 for damages and interest. A preliminary objection was taken that the Magistrate's Court had no jurisdiction in the light of the Government Proceedings Ordinance, 1956 Consequently, the claim was dismissed with costs and respondent was given liberty to file fresh action in the appropriate court. The learned Judge allowed the appeal and held that the Magistrate was competent to hear the suit but made an order for the case to be heard by the President, Sessions Court, Ipoh. Appellants appealed to this court.

Originally, there were two grounds of appeal. However, at the hearing appellants abandoned one ground. Therefore, the only ground in this appeal is that the learned Judge erred in law in holding that the Magistrate's Court has jurisdiction to hear suits in which the Government of Malaysia is a party thereto.

Under the Courts Ordinance, 1948 the civil jurisdiction of a First Class Magistrate was limited to one thousand dollars only. This Ordinance was revised and retitled as the Subordinate Courts Act, 1948 and came into force on 1 November 1972. Section 90 enhances the jurisdiction of a First Class Magistrate and reads:

Subject to the limitations contained in the Act, a First Class Magistrate shall have jurisdiction to try all actions and suits of a civil nature where the amount in dispute or value of the subject matter does not exceed two thousand dollars.

The writ was dated 11 April 1972 and the defence 21 June 1972. It seems clear that when the suit was filed the Courts Ordinance, 1948 was still in force. The claim is over $500. So, in the ordinary way it would be within the jurisdiction of the Magistrate's Court.

Before 1876 it would seem that an aggrieved subject could only sue the Crown by way of petition of right. Gradually, proceedings by or against the Crown were put on a proper footing first in the former Straits Settlements with the promulgation of the Crown Suits Ordinance XV of 1876. This was followed by other legislation on the same lines including the Government Suits Enactment (FMS Cap. 17). The present law relating to civil proceedings by or against the Government is to be found in the Government Proceedings Ordinance, 1956 which amended, consolidated and replaced various earlier legislation on such matters. It came into force on 1 April 1958 vide LN 107 of 1958.

The liability of the Government for actionable tort is thus created by statute. Section 5 of the 1956 Ordinance prescribing liability in tort reads:

... Government shall be liable for any wrongful act done or any neglect or default committed by any public officer in the same manner and to the same extent as that in which a principal, being a private person is liable for any wrongful act done, or any neglect or default committed by his agent. ...

Section 16 of the 1956 Ordinance is concerned with civil proceedings in the High Court. The controversy really centres round ss. 17 and 41 which deal with the civil proceedings in the Sessions Court and the special order which the Yang Dipertuan Agung may make respectively. They read as follows:

17 (1) Subject to the provision of this Ordinance, and of any written law limiting the jurisdiction of a Sessions Court (whether by reference to the subject matter of the proceedings to be brought or the amount sought to be recovered in the proceedings or otherwise) any proceedings against the Government may be instituted in