Hj. Abdul Kadir Sulaiman J.:

On 18 and 19 February 1994 there was a state election held in Sabah to elect 48 members to the Legislative Assembly as provided for under Article 14(2) of the Constitution of the State of Sabah. However, by virtue of Article 14(1)(c) the Sabah Legislative Assembly shall consist also of not more than six other nominated members. Members of two major political parties, the Parti Bersatu Sabah (hereinafter referred to as "the PBS") under the leadership of Datuk Joseph Pairin Kitingan and the State Barisan Nasional (hereinafter referred to as "the BN") under the leadership of Tan Sri Haji Sakaran Dandai, the 2nd defendant, contested in the said election. The plaintiff belonged to the PBS, and all three of them contested in the election and won. When the result of the election was announced the PBS won 25 of the total elected seats as against the BN which managed to obtain the 23 remaining seats. So, PBS obtained a majority of the members in the Legislative Assembly by 2 elected seats. As the leader of the party that had won a majority of the elected seats and a member of the Assembly, Datuk Pairin was on 21 February 1994 duly appointed by the Yang di-Pertua Negeri, the 1st defendant, as the Chief Minister of Sabah and on his advice, other elected members from the PBS, including the plaintiff, were appointed in accordance with Article 6(3) of the Constitution to form the State Cabinet. For the purpose of Article 14(1)(c) of the Constitution, the Sabah Legislative Assembly also has 6 nominated members appointed. Thus for the purpose of Article 14 the Sabah Legislative Assembly consists of 54 members in all, both elected and nominated. In accordance with Article 9(1) of the Constitution the plaintiff was one of the Ministers and was assigned the portfolio of Deputy Chief Minister and Minister of Agriculture and Fisheries.

On 17 March 1994, Datuk Pairin tendered his resignation as the Chief Minister of Sabah but he did not tender the resignation of the other members of his Cabinet. On the same day the Yang di-Pertua Negeri, the 1st defendant appointed the 2nd defendant as the new Chief Minister to replace Datuk Pairin. On 24 March 1994, the 1st defendant on the advice of 2nd defendant, appointed the 3rd to the 9th defendants as other members of the Cabinet of the 2nd defendant. Until this time, the other members of the previous Cabinet under Datuk Pairin did not tender their resignation and neither were their appointments revoked by the Yang di-Pertua Negeri.

By an amended originating summons, the plaintiff sought the following declarations:

1. A declaration that since no motion was ever tabled in the State Assembly against Datuk Joseph Pairin Kitingan so as to determine whether or not he had lost confidence of majority of the members of the Legislative Assembly for the purpose of Article 7(1) of the State Constitution of Sabah (the State Constitution) the resignation of Datuk Joseph Pairin Kitingan on 17 March 1994 was personal to him as a Member of the State Cabinet under Article 7(2) of the State Constitution and has no effect on the appointment of the plaintiff as a Deputy Chief Minister and Minister of Agriculture and Fisheries.

2. A declaration that the 1st defendant at the Head of the State of Sabah acted ultra vires the provisions of the State Constitution by purportedly appointing the 3rd to 9th defendants as Members of the Sabah State Cabinet on 24 March 1994 when at all material times the appointments of the plaintiff and the other Cabinet Members who were earlier appointed on 21 February 1994 under Article 6(2) of the State Constitution had not been revoked nor had they resigned.

3. A declaration that the appointment of the plaintiff as a Member of the State Cabinet by the 1st defendant under an instrument dated 21 February 1994 had not been legally revoked and still subsist in law and hence the plaintiff is still a member of the Sabah State Cabinet under the Chief Ministership