JUDGMENT

Wan Yahya J:

On 27 May 1972, the applicant and 183 others made application for State land in Mersing. Their names were submitted by the District Officer, Mersing to the proper authorities. For over eight years the applicant waited in vain and up till the date of this application no answer came from the appropriate authorities. The applicant then made a search in the land registry and found that seven pieces of State land in that area had already been alienated to the 1st respondent, the Mentri Besar of Johore, and a few other dignitaries, whom the applicant's Counsel conceded before this Court have been unfortunately described as his cronies. The applicant alleges in his affidavit that the alienation process was carried out in the Exco in the presence and with the participation of the 1st respondent and four other Exco members. These gentlemen, it was alleged, approved various parcels of land to themselves as well as dignitaries of no less importance, ranking from a former Exco member to a Deputy Minister and a few Cabinet Ministers. He was understandably aggrieved by this decision, which he felt had not only jeopardized his right as an applicant for the land but also by the unlawful act of the 1st respondent. So on 23 December 1980, he took out a motion against both the Commissioner of Lands & Mines, the Johore Government and the 1st respondent, who was and still remains as the Mentri Besar of Johore.

The respondents did not respond to the allegations in the motion until 5 days before the date of hearing when the 1st respondent alone filed a motion to strike out the proceedings. This affidavit in effect challenged the locus standiof the applicant to the relief prayed on the ground that he had not sufficient interest in the matter. This allegation of insufficient interest appears to be based on the fact that the applicant made no formal application but his name was merely one of the 184 names given for consideration for a fishermen's settlement scheme, that the matter was still being administratively dealt with and that the alienation of the land to the Mentri Besar and nine others did not prejudice the applicant's chance as there were vast unallotted lands still available in that area. The affidavit further alleges that the procedure adopted was wrong in law.

The applicant immediately filed a motion for leave to cross-examine the deponent, Dato' Haji Abdul Kadir bin Sam'on and the 1st respondent.

The hearing before this Court was therefore confined to the two motions to strike out and to cross-examine.

On the question of procedure it was submitted that this action should have been by a writ and not by a motion and that on the authorities of Haji Ismail bin Che Chik v. The State Commissioner. Penang [1974] and Sungai Wangi Estate V. Uni [1975], the Court should dismiss the application. In my opinion, both these cases are not proper propositions for dismissing a suit for irregular procedure. Although in both these cases the Court commented that the mode adopted by the applicants was inappropriate, it nevertheless went on to consider and determine each case on its merits. To my mind the procedure adopted by the applicant merely rendered the proceedings irregular but by no means void. In such a case, the Court may, if it is satisfied that the parties, their Counsel and the Court will not be seriously embarrassed by the irregularity and that such irregularity will not lead to injustice to any party, proceed to hear and determine the case. This point was discussed at p. 272 of Haji Ismail'scase (supra) wherein Chang Min Tat J (as he then was) said at p. 272:

All in all, it does appear to me that there is considerable substance in the contention of the learned Legal Adviser. On the other hand, however, there cannot be any serious embarrassment to the parties or their Counsel in presenting their contentions or to the Court in hearing the case and coming to a decision. No disputes of facts arise and the matter stands to be decided o