Gill FJ:

Lai Ah Yan (f) and Chiang Peng Lam alias Chiang Kok Peng are the registered lessees of the land held under mining certificate No. 1517 for lots 3234 and 9648 in the mukim of Petaling in the district of Kuala Lumpur. Their predecessor in title, one Yap Shak Lin had sub-leased the said mining land to Lee Soo Chuan on 23 September 1967.

On 4 December 1970 the lessees lodged a memorandum in writing, under s. 99 of the Mining Enactment (FMS Cap. 147) at the office of the senior inspector of mines, Kuala Lumpur, complaining, inter alia, that the sub-lessee had not, contrary to the provisions of s. 16(iii)(a) of the Mining Enactment, commenced mining operations on the mining lot within a period of one year from the date of issue of the sub-lease, and seeking an order for the cancellation of the said sub-lease.

The complaint was registered as civil action No. 3 of 1970 in the Court of the senior inspector of mines at Kuala Lumpur, in which Lai Ah Yan (f) and Chiang Peng Lam were described as the complainants and Lee Soo Chuan as the respondent. As the action was in the nature of a civil proceeding, it will be more appropriate for me to refer to the parties hereafter as the plaintiffs and the defendant respectively in the action.

The defendant filed a defence to the action to the effect that he would have worked the mining land but for the breach by Yap Shak Lin of cl 5 of the agreement entered into between himself and the said Yap Shak Lin dated 8 August 1966.

On 21 May 1971 the plaintiffs filed a further complaint stating that their mining certificate was due to expire on 18 September 1971 and that as the sub-lessee was unable to start the mine, it was only fair that the sub-lease be cancelled so that they could either work the mining land themselves or sub-lease it to the adjoining mining company for mining.

On the case coming up for hearing on 17 June 1971 the senior inspector of mines made a decision whereby it was ordered that the sub-lease over the mining certificate No. 1517 be cancelled.

On 9 July 1971 the defendant took out an originating motion in the High Court at Kuala Lumpur, being Originating MotionNo. 28 of 1971, for an order that the decision of the senior inspector of mines Selangor given on 17 June 1971 in Civil Suit (Selangor) No. 3 of 1970 in the senior inspector of mines' Court at Kuala Lumpur be cancelled or set aside on the grounds mentioned therein.

The subject matter of the originating motion was stated in the title to be:

In the matter of s. 107 of the Mining Enactment Cap. 147

AND

In the matter of an appeal from the decision of the Senor Inspector of Mines, Kuala Lumpur in Kuala Lumpur Senior Inspector of Mines' Court Civil Suit No. 3 of 1970 between Lai Ah Yan (f) and Chiang Peng Lam alias Chiang Kok Peng and Lee Soo Chuan."

The parties to the motion were stated to be the defendant as the appellant and the plaintiffs as the respondents.

On 11 August 1971 the respondents took out a notice of motion for an order that the originating motion commencing the proceedings in the High Court by way of appeal against the decision of the senior inspector of mines and all subsequent proceedings therein be set aside. This notice of motion came up for hearing on 20 September 1971 before Abdul Hamid J, who ruled that proceeding by way of originating motion was not the proper procedure to adopt on an appeal from the decision of the senior inspector of mines, and accordingly made an order that the originating motion and all subsequent proceedings therein be set aside.

This appeal has been brought against that order of 20 September 1971 whereby the originating motion was set aside.

As stated by Counsel for the defendant/appellant the two questions to be decided in this appeal are:

(1) What is the procedure to be adopted on an appeal from a decision of the senior inspector of mines?

(2) If the respondents are right that the procedure should have been by way of a notice of appeal followed b