Raja Azlan Shah (Malaya) CJ (delivering the judgment of the Court):

These two appeals, heard together and the subject of one judgment, were from the decisions and orders of the High Court in Penang (reported in [1978] 2 MLJ 156) refusing interim injunctions and striking out both the actions under O. 25 r. 3 as disclosing no reasonable cause of action. We allowed them on 6 December 1978. We now proceed to give our reasons.

The facts in Federal Court Civil Appeal No. 29 of 1978 are as follows. The appellants who are the local authority are concerned with the illegal activities of the respondents in their statement of claim dated 15 December 1977 they allege that the respondents, who are in possession and control of the dwellinghouse at No. 42, Jalan Tanjong Tokong, Pulau Pinang, have on 21 September 1977 applied to them under s. 144(7) of the Municipal Ordinance (Cap. 133) to convert it into an eating-house, but without waiting for approval carried out structural alterations which in the absence of an approval is an offence punishable under s. 144(9) of the said Ordinance. To convert the dwelling-house into an eating-house is by virtue of s. 144(11)(e) of the said Ordinance deemed to "erect a building". They also complain that the respondents are operating the said eating-house known as the "Restaurant Jade Dragon" since 10 November 1977 without a licence duly issued by them under by-law 2(i) of the Council's bylaws with respect to bakeries, eating-houses and places where food or drink is sold or prepared or stored for sale, an offence punishable under by-law 27(i). Enforcement notices dated 6 October 1977 and 14 November 1977 requiring the respondents to "stop work of carrying out alterations and additions and conversion of the dwelling-house without prior approval, demolish all unauthorised structures and revert to previous use" were ignored. They therefore seek an injunction to restrain the respondents from illegally operating the said eating-house and damages for public nuisance which they have a statutory right to abate otherwise than upon the intervention of the Attorney General by virtue of ss. 13 and 80 of the Local Government Act, 1976 (Act 171).

In Federal Court Civil Appeal No. 30/78 the facts are similar. The respondents who are in possession and control of the building at No. 180-N, Burmah Road, Pulau Pinang, have since 10 October 1977, converted it into an eating-house in breach of by-laws 2(i) and 27(i) of the Council's by-laws. Enforcement notice issued on the same day was served on the respondents on October 17 but was ignored. On 14 December 1977 the appellants seek similar remedy.

On 15 December 1977 the appellants obtained ex parte injunctions restraining the respondents from operating the said eating-house until trial of the actions. On 28 December 1977 and 12 January 1978 the respondents moved the Court to strike out the actions and also to dissolve the ex parte injunctions. On 9 February 1978 the Court upheld their applications.

It is necessary to reproduce the relevant provisions of the law. Section 144(7) of the Municipal Ordinance is as follows:

No person shall commence any building operations involving the erection of a building ... unless -

(a) he has given to the Commissioners four days' notice of his intention to commence or resume such operations with particulars of the intended works; and

(b) a plan and specification of the building have been approved by the Commissioners or the President within one year before the date of the notice.

Section 144(11)(e) enacts:

For purposes of this section and of ss. 144B, 145 and 146 a person shall be deemed to erect a building who -

(a) converts to other purposes a house originally constructed as a dwelling-house.

Section 144(9) of the Municipal Ordinance is as follows:

Any owner who fails to comply with the requirements of such notice shall be liable to a fine not exceeding ten dollars for each day during which such noncompliance continues,