JUDGMENT

Tan Chiaw Thong J:

[1] (read by Mrs Agnes Wong Kiew Ling, Registrar): In this action, the plaintiff claims the following reliefs against the defendants:

(a) a declaration that the first defendant's revocation of the plaintiff's appointment as Chief Minister on April 22, 1985 is ultra vires the Constitution, null and void and of no effect;

(b) a declaration that plaintiff is the Chief Minister of the State of Sabah;

(c) a declaration that the first defendant's act in appointing the second defendant as the Chief Minister of Sabah on April 22, 1985 is ultra vires the Constitution, null and void and of no effect;

(d) an injunction to restrain the second defendant from exercising the powers of and/or acting as the Chief Minister of the State of Sabah;

(e) a declaration that the act of the first defendant in appointing the State Cabinet is ultra vires the Constitution, null and void and of no effect;

(f) a declaration that the act of the first defendant in appointing the nominated members of the Assembly is ultra vires the Constitution, null and void and of no effect;

(g) a declaration that all acts and things done by the second defendant in his pretended exercise of his powers as Chief Minister are null and void and of no effect;

(h) costs of this suit;

(i) further or other relief.

[2] At about 5:30 am on April 22, 1985, the plaintiff took and subscribed on oath in the form prescribed for a Chief Minister for the State of Sabah, before the 1st defendant. The same day, the 1st defendant purported to revoke the appointment. as Chief Minister of the plaintiff. At about 8:00 pm the same day, the 1st defendant appointed and swore in the 2nd defendant as Chief Minister, which appointment is a main issue.

[3] After hearing argument, the Court allowed the application of learned leading counsel for the defendants (LCD) to amend the pleadings of the defendants by incorporating, as part of the defendants' pleadings, written relevant legal principles relied upon by the defendants. This was later supplemented by a written "Further legal submissions on behalf of the defendants", including Part (E) thereof, on application made.

[4] At the outset, I would like to mention one matter, and it relates to whether the alleged appointment of plaintiff as Chief Minister should be an issue to be considered by the Court. The case for the plaintiff, based on his pleadings, is that there having been an appointment, the sole issue is whether the purported revocation of his appointment is valid. The defendants contend otherwise. In the light of the existing pleadings, which have been amended since the judgment on the preliminary point taken by the defendants on jurisdiction, I am of the view that the matter of the alleged appointment of plaintiff as Chief Minister is an issue to be tried.

[5] Para 3 of the Statement of Claim states:

"On April 22, 1985, the first defendant acting under the provisions of art 6(3) of the Constitution, appointed the plaintiff as Chief Minister."

[6] Paras 2 and 2A of the re-amended Statement of Defence of the 1st defendant respectively allege:

"2. The 1st defendant in reply to paragraph 3 of the Statement of Claim states that the plaintiff was never appointed as Chief Minister of Sabah under art 6(3) of the Constitution of the State of Sabah as claimed.

2a. The plaintiff was not appointed on April 22, 1985 and all other defences in this Amended Statement of Defence are in the alternative."

[7] This brings in issue the question of whether there was an appointment, and if so, whether it is a valid one, with the reservation that it is common ground that how the 1st defendant exercised his discretion and the matters and factors which he took into account, in making an appointment under art 6(3) of the Sabah State Constitution are non-reviewable. In this connection, I think it is pertinent to observe that, the defendants being the party to begin, the evidential burden lies upon them to prove that there was no, or no valid, appointment.

[8] It was a