Mohd. Azmi SCJ:

The question for determination in both these appeals is whether the learned Judge of the High Court was correct in law in setting aside the order of the Registrar dated 27 June 1986 granting the appellants leave to serve out of jurisdiction, a notice of concurrent writ of summons on the International Tin Council (ITC) in London. Instead the learned Judge made an order giving the appellants liberty to amend their statements of claim to exclude that part of the prayers relating to their monetary claim against the ITC, and conditional upon the said amendment, liberty be given to them to cause a fresh concurrent writ of summons to issue against the ITC in London or elsewhere in the United Kingdom. The substituted order was couched in such terms because he was of the view that unlike the other prayers sought in the writ, the High Court had no jurisdiction over the monetary claim against the ITC although surprisingly no order was deemed necessary to amend the pleadings relating to this particular cause of action.

It is common ground that the ITC is recognised under English Law by the International Tin Council (Immunities and Privileges) Order 1972. [See Maclaine Watson & Company Ltd. v. Department of Trade [1988] 2 WLR 1033]. Because of its immunity, the organization is not subject to the jurisdiction of the English Courts except in respect of the enforcement of arbitration awards. [See In re. International Tin Council [1988. 3 WLR 1159]. There is no dispute however that the ITC has no such immunity in Malaysia.

In each of these two appeals, the ITC and Datuk Keramat Smelting Sdn. Bhd. (DKS) are being sued as co-defendants by Malaysian bankers who at all material times are carrying on business at their branches in Kuala Lumpur, Penang, London and elsewhere. In SCCA no. 29 of 1987, Malayan Banking Berhad prays inter alia for the sum of 35 million pounds against ITC on a loan transaction effected in London, (references in this judgment are in British pound sterling) they also claim damages against DKS, and as against both ITC and DKS, there is common prayer for a declaration that the plaintiff banks are entitled to sell the tin metal malaysia comprised in DKS tin warrants given to them by ITC as pledges to secure the London credit facilities. In SCCA no. 30 of 1987 the same orders are being prayed for by Bank Bumiputra Malaysia Berhad against both the defendants, except that the sum alleged to be due from ITC on the loan facilities granted by their London Branch, is approximately 76 million pounds. It is an undisputed fact that ITC enjoys and has not waived its immunity from being sued in England, and unlike DKS, it does not reside or has its place of business in Malaysia. According to the statements of claim. DKS has refused to deal with the pledged tin stored in Penang as directed by the appellants,in accordance with the pledge agreement.

Before us, there is no cross-appeal by ITC or DKS against the substituted order made by the learned Judge on 13 January 1987.

In setting aside the Registrar's order, the learned Judge came to the conclusion that in Malaysia, the jurisdiction of the High court is restricted to those upon whom its process may be served within the territorial jurisdiction of the Courts, and to this general rule the only exception is to be found in O. 11 Rules of the High Court 1980. This conclusion is based on such English authorities as Siskina (Cargo Owners) v. Distos SA [1979] EC 200, 254 F, and Re Rusfield [1886] (32) Ch D 123. The learned Judge rejected the arguments that s. 23(1)(b) of the Courts of Judicature Act 1964 creates another exception to the general rule on extra-territorial jurisdiction of our Courts.

Basing his conclusion on the cause of action and prayers sought in the statements of claim, the learned Judge held that the monetary claim was outside the purview of O. 11 r. 1 Rules of the High Court 1980, but the declaratory order sought against the ITC and DKS relating to the