INTRODUCTION TO LAW

II
CHAPTER 2
ADVERSARIAL AND
INQUISITORIAL SYSTEM

BY : NORSYAZRAH BINTI ZULKIFLI

CHAPTER 2
ADVERSARIAL AND
INQUISITORIAL SYSTEM
1.Basic Features of a civil and criminal
litigation
2.Understanding cases
Parties to the suit
Causes of actions
Locus Standi
Limitation period
Remedies

THE ADVERSARIAL SYSTEM

This

system is adopted in Common Law countries

including England, U.S and also Malaysia
It relies on the skill of the different lawyers
representing their party's positions
The parties have the chance to hire lawyer to
represent them and to make the arguments
The judge plays passive role but still play his part
to make the decision for the parties.
Evidence will be tested in examination in chief,
cross examine and re-examination to get a clear
evidence that had ben brought to the court.

What are the process of the

adversarial system?

1.EXAMINATION IN CHIEF
EXAMPLE OF THE QUESTIONS:
The purpose of asking the
examination in chief is to get or
to establish the case theory
(what are the matters, nature
that is related to the case?
* You should avoid leading
questions (questions that
suggests a particular answer
directly or indirectly)

What is your full name?

Your age?
Would you tell what happened to
you?

2. CROSS EXAMINATION
Cross-examination

seeks to nullify any

damaging
testimony
given
by
an
opponent's witness and to elicit supporting
material for the cross examiner's case.
The lading question can be asked in this
stage

INQUISITORIAL SYSTEM

Refers to civil code system and judge plays

significant role and responsibility in trial.
Emphasized more on documentary evidence
Judge has control over the way evidence is
collected. He will analyzed the evidence and
document submitted.
Lawyers and prosecutions are working
together with judge to achieve just decision.
More on conciliatory.
Court control the cost and less delay on trial
Success in the case does not depend so
much on dispute being legally represented
but the efficiency of its investigation process

Case on Inquisitorial
system
Ex

P Moore [1965] 1 QB 456

Ms. Moore suffered from slipped disc
because of her work as a crane driver.
The tribunal conducted the case by using
the statement from the doctors who
absent from tribunal and can not be
challenged by Ms. Moore. Held: the
principles of natural justice had not been
violated as the trial was based on the
inquisitorial proceedings.

CIVIL
Govern matters such as
contracts, partnership
agreements, marriage,
wills, sales of property
and tort.
Lawyer represent
clients.
Bundle of documents,
witnesses to prove the
case.

CRIMINAL
Wrong against the state
Unlawful act or
omission that
unacceptable in the
eyes of public.
Matters like murder,
rape, theft, hurt.
Prosecuted by the state
in the name of
Prosecutor or Attorney
General

CIVIL LITIGATION vs.

CRIMINAL LITIGATION

CIVIL LITIGATION
Objective

to ensure that plaintiffs claim

against defendant AND defendants
defence against plaintiffs claim is settled
in an-orderly, just and fair manner
Scope steps in civil action, study of
documents, study all matters between
Plaintiff and Defendant, study of
judgment, study of appeal.
Sources Rules of Court 2012 (came into
force on 1 August 2012)

Civil Litigation
(Preliminary matters)
1.
2.
3.
4.
5.

Parties to the suit Plaintiff vs

Defendant? Appellant vs Respondent?
Cause of actions who start the act? Is
there any proof?
Locus standi are you involve and
deserved to be in trial?
Limitation Period is there time-limit to
bring the matter to court?
Remedies what type of compensation
I may get?

1.PARTIES TO THE SUIT

Who can sue and be sued must be firstly

determined at early stage
Plaintiff a person/corporation/government
bodies who want to claim, started the action,
suffered injury, being innocent party.
Defendant a person/corporation/
government bodies that responsible for such
injury.
Appellate those who appeal the case after
lost in the court below.
Respondent opposing party in the appeal

1.PARTIES TO THE SUIT

Category of people that can be party:

Individual
Disability person
Incorporated bodies
Partnership
Federal / state government Gov of Malaysia or
State of Pahang
YDPA, Rulers Art. 183 cannot be sued in personal
capacity unless get approval from AG. (Faridah
Begum v. Sultan Ahmad Syah).
Foreign States
Societies
Trade Union.

2.Causes of action
A

set of facts or allegations sufficient to

justify a right to sue
Material facts to be proved by plaintiff in
order to succeed Cooke v Gill (1873)
The importance: To determine the form of proceedings to be
taken in court
Pleadings (written statements filed by each
party stating their claims) must state
cause of action

2.CAUSES OF ACTION

Lord

Diplock in Letang v Cooper [1965] 1

QB 232 at page 242 defined cause of
action as a factual situation, the
existence of which entitles one person to
obtain from the court a remedy against
another person.
Lim Kean v Choo Koon [1970] 1 MLJ 158
a case of action accrues when there is
an existence a person who can sue and
another who can be sued and when all
facts have happened which are material
to be proved to entitled the Plaintiff to
succeed.

2.CAUSES OF ACTION

Plaintiff must have cause of action which is complete

Taib Awang v Mohamed Abdullah (1983), [1984] 1 CLJ 44.
P was convicted in Kadis court but he lost in the case. Then
he appealed. But before the appeal started, he commenced
an action for malicious prosecution. Held: the action was
failed because incomplete cause of action. Conviction under
appeal. It would be complete if the appeal had ended.

Good example if a party to start action in negligence, they

must prove the existence of elements in tort of negligence
including defendant owed him duty of care, defendant
breach duty of care and the breach of duty of care has
caused damages. Failure to prove any of it will cause the
struck off the claim.

3.Locus Standi
a place to stand
Ability of a party to demonstrate to the court sufficient
connection to and harm from the law of action challenged.
E.g. suffered loss
A person must be directly involved in the suit.
Atip Ali v Josephine Duris Nunis [1987] 1 MLJ 82
A woman filed a suit against a former Malacca chief
minister for breach of promise to marry and later
discontinued the suit. The members of the political party of
that former chief oddly believed that she was insulting their
honour, and sued for defamation. Luckily defamation was
held to be personal to the ex-minister involved, and not to
the members.

3. Locus Standi

A person must provide with special relationship in

order to sue other party.
Govt. of Malaysia v Lim Kit Siang [1988] 1 CLJ 219
Plaintiff, an MP applied for injunction to restrain UEM
from signing a contract with government on
construction of North-South Highway. Issue whether
he has cause of action or locus standi to sue other
parties. Held- no locus standi as politician, not party
in contract.
that every legal system has a built in mechanism
to protect its judicial process from abuse by busy
bodies, cranks and other mischief makers by insisting
that a plaintiff should have a special interest in the
proceedings he institutes.

4.LIMITATION PERIOD
For the civil proceedings, the case
should be filed within a stipulated time.
If the case did not begins within the
time limits, it will be time-barred.

4. LIMITATION PERIOD
MATTERS

PROVISION

LIMITATION PERIOD

1. Action in tort & contract

Section 6(1) Limitation Act 1953

2. Action upon any judgment

Section 6(3) Limitation Act 1953

12 years from date of enforcing

judgment

3. Action to recover land

Section 9(1) Limitation Act 1953

12 years from the date which

right of action accrued

4. Action for breaches of trust

(civil)

Section 22(2) Limitation Act

1953

6 years

5. Disability case

Section 24 Limitation Act 1953

6 years from cause of

action.
It must be started from
wrongful act happen not
when Plaintiff
discovered.

The extension of limitation

period in such case:a) minor
ceased disability when he
reaches 18 years old or
died, whichever come first.
b) disability ceased when
an unsound mind get
certificate of sanity or dies
or appointed to look his
affairs.

CONT.
MATTERS

PROVISION

LIMITATION PERIOD

6. Action against any public

authority (state/federal)

Section 2 Public Authorities

Protection Act (PAPA) 1948

must commence within 3 years

after the wrongful act
complained

7. Dependency claim

Section 7 (5) Civil Law Act 1956

Who is dependent:
parents , spouse,
children.
within 3 years after the
death of the person
Claim for loss of
dependency/loss of
support.

8. Estate claim

Section 8 (3) Civil Law Act 1956

Claim can be made if:- the proceedings against

deceased were pending at
the date of Ds death OR
-The action taken within 6
months after deceased
personal representative
took out letter of
representation.

Civil Law Act 1956

Dependency

Claim

Who is dependent: parents , spouse, children.

Section 7 (5): within 3 years after the death of
the person
Claim for loss of dependency/loss of support.

Estate Claim

Section 8 (3) Claim can be made if: the proceedings against deceased were pending at
the date of Ds death OR
The action taken within 6 months after deceased
personal representative took out letter of
representation.

5.REMEDIES
Def: any method available under the law to
obtain redress for the infringement of rights.
Compensation, benefit obtained by Plaintiff
Damages

Money compensation for damage, loss or injury

suffered via wrongful act
It can be substantial (to put P in position that he
would enjoy the promised if performed) nominal
(small token where P has proved breach but suffer no
actual loss) and exemplary (sum awarded greater
than pecuniary loss suffered by P eg breach promise
of marriage)
Mitigation of loss duty to take reasonable step to
mitigate loss suffered

5.REMEDIES
Specific

Performance

Discretionary remedy in the hand of court to

decide
Govern by Specific Relief Act 1950
Court would direct the party to perform the
contract according to terms
Would not granted if damages are adequately
been remedied. Section 20 SRA 1950.
Section 21 SRA 1950 court may refuse to
grant SP if it will cause undue hardship to D.

5.REMEDIES

Injuction

Discretionary remedy. Granted to restrain or order other

parties to do something.
Govern by Specific Relief Act 1950
Types

Temporary Injunction granted for specific period

Perpetual Injunction final injunction where order made at the
end of trial.

Form of injunction:

Mareva injuction restrain D from disposing or concealing his

assets in order to defeat an action brought against D.
Anton Pillar Order an order to enter Ds Premises to search and
seize incriminating materials which D might destroy or dispose. To
defeat purpose of justice.
Erinford injuction stay order of judgment until appeal is heard.

CRIMINAL LITIGATION
Constitutional

safeguard

Article 5 (1) no person may deprived his

life or personal liberty except in accordance
with law.
Article 5 (3) if a person is arrested, he
must be informed the ground of his arrest
and allow to be represented by lawyer on
his choice
Article 5 (4) if a person arrested for more
than 24 hours, the permission from
magistrate must be granted.

Criminal litigation

Attendance in Criminal Court

Accused person could be brought to the court in any

following methods; summons by a court, warrant of
arrest, arrest without warrant (seizable offence)
Proceeding in court is open to public except in certain
situation (in-camera proceeding)
Charge is read and explain to the accused. If accused
plead guilty, court would request prosecutors to
present summary of the case and examine if accused
understand the nature of his plea. Then the sentence
is passed according to the law
If accused refuse to plead guilty then the trial process
begin with examine-in-chief, cross-examine, adduce
and rebuttal of evidence

Criminal litigation
If

court satisfy the case, the accused

will be called for defence in 3 ways. He
can be testify in the dock and will be
cross examine by prosecutor, giving
oath statement without being cross
examine or remain silent.
The prosecutor must proof the case
beyond reasonable doubt.
If the accuse found guilty, he will be
sentence according to the law.

THE END.