HIGH COURT SABAH & SARAWAK KOTA KINABALU
DATUK (DATU) AMIR KAHAR TUN HAJI MUSTAPHA – Appellant
Versus
TUN MOHD SAID KERUAK (YANG DI-PERTUA NEGERI SABAH) & OR.... – Respondent
[Originating Summons No: K-24-63-1994]
[1] This is the defendants' application by summons in chambers to strike out the plaintiff s originating summons praying for various declarations arising out of the resignation of Datuk Joseph Pairin Kitingan (Pairin) on 17 March 1994 as Chief Minister of Sabah and the appointments by the 1st defendant of the 2nd defendant as the new Chief Minister and the 3rd to the 9th defendants as members of the new Cabinet on the advice of the Chief Minister. The plaintiff challenges the appointment of this new Cabinet as being unconstitutional, ultra vires and invalid when he and the other members of Pairin's Cabinet had not tendered their resignation or that their appointments being revoked by the 1st defendant.
[2] The defendants' application is under O 18 r 19(1)(a), (b) and (d) of the Rules of the High 1980 (the RHC) and under the inherent jurisdiction of the Court. The application is supported by the affidavit of Wong Kian Kheong affirmed on 7 September 1994. The said affidavit merely refers to various affidavits in reply of the defendants filed as replies to the plaintiffs main application in the originating summons. Based on those affidavits in reply, the deponent verily believes that the originating summons of the plaintiff discloses no reasonable cause of action against all or any of the defendants, and/or is scandalous, frivolous, vexatious and/or is an abuse of the process of the Court. In opposition to this application of the defendants, the plaintiff filed an affidavit in opposition affirmed on 22 September 1994. In the affidavit in opposition of the plaintiff he questioned the propriety of those affidavits in reply referred to by the deponent of the affidavit in support of this application, since those affidavits are meant for the trial/ hearing of the originating summons which had been fixed for hearing. So, the immediate issue which calls for a decision is whether the application of the defendants is defective in the light of the nature of the affidavit in support. This application of the defendants is made by way of a summons in chambers pursuant to O 32 r 1 of the RHC. According to Form 62, the applicant is required to state the grounds of the application. In this case the grounds are therein stated as being that the originating summons discloses no reasonable cause of action against all or any of the defendants, which is ground (a) of r 19(1). The other ground is that it is scandalous, frivolous or vexatious, which is ground (b) of r 19(1) and finally that it is an abuse of the process of the Court which is ground (d) of r 19(1) of O 18 of the RHC. Order 18 r 19 does not spell out the requirement of any affidavit in support of the application. This is different from an application made under O 14 where by r 2(1) thereof the applicaton must be made by summons supported by an affidavit. Similarly with an application under O 81 where by r 2(1) thereof an affidavit is required for the application. Again, an application under O 49 r 2 is required to be supported by an affidavit. Similarly with an application under O 50 r 3 where the application must be supported by an affidavit. To cite yet another form of application is an application under O 29 r 1(2) of the RHC where it must be supported by an affidavit. Whereas under O 18 r 19, it merely requires an application to be made. There is no requirement in the rule for an affidavit accompanying the application. An application by summons in chambers is no doubt an interlocutory proceeding and O 41 r 5(2) makes mention of an affidavit sworn for the purpose of being used in interlocutory proceedings. But in the absence of any express requirement of an affidavit to support the application in O 18 r 19, it is my view that for an application under the rule the affidavit in support of the application is not mandatory. In the circumstances, the affidavit of Wong Kian Kheong in support of this application of the defendant is of no consequence or signific
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