Suffian LP (dissenting):

This dispute concerns the succession to the 14th Undang (Ruling Chief) of the luak (territory) of Jelebu in the State of Negri Sembilan, and the answers to the issues that arise in this appeal turn on the construction of certain provisions in the Federal Constitution and in the State Constitution.

Preliminary

On 20 November 1979, when the 14th Undang died, it was necessary that his successor be, in the words of Clause (1) of art. XIV of the State Constitution, a person "lawfully elected in accordance with the custom of [his luak]". Until then, in accordance with the adat (custom) and constitution of the luak, Dato' Menteri Othman bin Baginda ("the first defendant") became acting Undang. He was bound by the adat of the luak to instruct Dato' Ombi Syed Alwi bin Syed Idrus ("the plaintiff") one of the Dato' Lembaga (Tribal Chiefs) of the luak to investigate and nominate candidates, from amongst whom a suitable person would be elected as successor to the deceased Undang.

On 4 December the Dato' Menteri received a nomination from Kecik bin Kiman, Dato' Raja Diraja or Buapak from Waris Sarin, nominating Musa bin Wahab, P.J.K. ("the second defendant") as a candidate. On receipt of the nomination the first defendant directed the plaintiff to investigate into Encik Musa's background and qualifications and included his name in the list of candidates.

On 14 December, the first defendant received a letter from the plaintiff giving the names of three possible candidates: namely Syed Zin bin Syed Hussein, Syed Sulong bin Syed Chik and Nordin bin Ahmad. It will be observed that the second defendant's name was not on the list. The first defendant claimed that it was his duty under the law, custom and constitution of the luak to see that the nomination of the second defendant be given due consideration, and that the plaintiff had failed in his duty as Dato' Ombi by not considering the second defendant's eligibility as a candidate under the rules of pesaka (succession). So the plaintiff as acting Undang called a special meeting of the Tribal Chiefs of the luak on 24 December to discuss the matter. On 31 December another special meeting of the Tribal Chiefs was held attended by eight of them.

The first defendant alleged "that there was no single candidate acceptable to the eight tribal chiefs", whereupon it was his duty under the adat, custom and constitution of the luak to choose the new Undang. So he personally investigated into the background and qualifications of all the three candidates submitted by the plaintiff and into those of the second defendant, and he concluded that none of the three candidates were eligible and that only the 2nd defendant was a fit and proper person to be appointed the new Undang, that there was no reason why he should not be appointed and that in failing to take into account his eligibility the plaintiff had failed to carry out his duty as Dato' Ombi. Subsequently, on 4 February, 1980, he (the first defendant) proclaimed the appointment of the second defendant as the new Undang of the luak of Jelebu in accordance with the adat, custom and constitution of the luak.

Seventeen days later the plaintiff filed a suit in the Seremban High Court against the two defendants, alleging that the second defendant was not a candidate for the Undangship, was not qualified for it under the adat, custom and constitution of the luak, that his appointment was not approved by the plaintiff and six other Tribal Chiefs of the luak, whom he named; and by reason of all this the plaintiff asked the Court to declare that the purported appointment by the first defendant of the second defendant as the new Undang was invalid as being contrary to the adat, custom and constitution of the luak of Jelebu.

In their defence the two defendants maintain that the appointment was valid according to the adat, custom and constitution of the luak. Secondly, they contend that the Court has no jurisdiction to entertain the a