Pike CJ (Borneo):

The defendants in the above suit make application, through their advocate Mr. George Seah, to strike out the writ of summons and statement of claim herein on the ground that they involve matters beyond the jurisdiction of this Court.

APPLICATION TO STRIKE OUT WRIT OF SUMMONS AND STATEMENT OF CLAIM IN CHAMBERS

The plaintiff who, until dismissed on the 24 September 1966, by the first defendant in his capacity as Governor of Sarawak, was the Chief Minister of Sarawak, claims the declarations set out hereunder and seeks an injunction to restrain the second defendant from acting as Chief Minister of Sarawak.

(1) . A declaration that the calling, meeting and vote of Council Negri on the 23 September 1966 were illegal, null, void and of no effect.

(2) . A declaration that his purported dismissal by the first defendant was ultra vires, null and void.

(3) . A declaration that the purported appointment of the second defendant as Chief Minister was illegal, null, void and of no effect.

(4) . A declaration that the plaintiff is and was at all material times from 22 July 1963 the Chief Minister of the State of Sarawak.

(5) . An injunction restraining the second defendant from acting as the Chief Minister of the State of Sarawak.

The plaintiff's statement of claim sets out the grounds on which he claims these declarations. In para. 2 to 15 he claims that the Proclamation of a State of Emergency made by the Yang di-Pertuan Agong on the advice of the Federal Cabinet on the 14 September, 1966, is null, void and of no effect by reason of the fact that it was not made bona fide but was made in fraudem legisand he pleads certain particulars in support of this claim. In paras. 16 to 22 he claims that an Act of the Parliament of Malaysia entitled the Emergency (Federal Constitution and Constitution of Sarawak) Act, 1966, was ultra viresthe said Parliament null, void and of no effect. In para 18 the claim that it is null and void is made on the ground that it purported to be made by virtue of the Proclamation of Emergency which by the earlier referred to paragraphs of the statement of claim the plaintiff says is void because the making of it was in fraudem legisbut in the other paragraphs above referred to the viresof that Act is questioned independently of the validity of the Proclamation.

The burden upon an applicant who asks that a writ of summons and statement of claim be struck out is a heavy one. He must be able to show that the action must fail or that for some other reason it is an abuse of the process of the Court or is frivolous or vexatious. See Goodson v. Grierson [1908] 1 KB 761. This case has stood the test of time and was expressly approved in Charles Forte Investments Ltd. v. Amanda [1963] 3 WLR 662. Lord Justice Willmer at p. 666 says:

As to the circumstances in which the inherent jurisdiction of the Court may be invoked, I entirely accept the judge's caution, which he quoted from the Annual Practice, 1963, p. 577, that this is a jurisdiction to be exercised with great circumspection. Mr. Instone this morning has properly drawn our attention to an authority, Goodson v. Grierson, which expresses the test to be applied as being whether it is impossible for the party concerned to succeed on his claim.

The application is supported by an affidavit sworn by Mr. George Seah, advocate for the defendants, and is resisted by an affidavit sworn by the plaintiff.

The defendants, through their Counsel, say that the writ and pleadings should be struck out because they involve matters beyond the jurisdiction of this Court. The grounds on which this contention is based must be separately considered in relation to paras 2-15 and 16-22 of the statement of claim. They are separately dealt with in paras 5 and 6 of Mr. Seah's affidavit.

In respect of the making of the Proclamation by the Yang di-Pertuan Agong under article 150 of the Federal Constitution the defendants say that it purported to be made by virtue of