An appeal against governmental circulars must follow the proper judicial review process, not standard legal actions, when contesting public authority decisions.

[1] This is an appeal against the decision of the High Court that dismissed the Originating Summons of the appellant company who challenged the decision of the Sabah Government to impose a ban on the export of logs from the state. The Chief Conservator of Forests is the 1st respondent whereas the State Government of Sabah is the 2nd respondent.

Background Facts

[2] On 23 May 2018, the Chief Conservator of Forests of Sabah issued Circular CF:09/2018 (the circular). The circular stated that the export of logs in any form from Sabah was temporarily banned to facilitate studies on the costs and benefits of log exports. Log exporters were advised not to commit log shipments for export with immediate effect.

[3] The appellant is a company that runs a teak tree plantation. It has planted teak trees on land measuring 2,232.60 acres in the District of Lahad Datu, Sabah since 1992. The export of planted teak trees commenced around 2002. In the affidavit in support, it is averred that the State and Federal Governments had encouraged and promoted the cultivation of the teak trees. According to the appellant, in early 2018, of the 220,000 teak trees planted on the land in question, 64,828 of the trees were matured and ready for harvest and export. The appellant also wanted to cultivate moringa trees on the land after harvesting the said teak trees for the reason that it was more profitable. The appellant promoted the sale of teak logs in the country as well as overseas. The only responses it received were from overseas, ie Dubai, India and China. While negotiations for sale were being conducted, the Chief Minister of Sabah announced the ban on the export of logs which included cultivated logs. Prior to the ban, the appellant had been issued with a registration certificate by the Conservator of Forests under the Sabah Forest (Timber) Enactment 2015 as an exporter and supplier.

[4] The appellant appealed to the 1st respondent for exemption from the export ban in respect of the sale of cultivated logs as they were ready for harvesting and because the land occupied by the mature teak trees was needed for moringa cultivation. However, the appellant did not receive a reply. The appellant argued that the Sabah Government has no power to impose a ban on export of timber logs from the state. The appellant's estimate of the total losses due to the ban on the export of logs and the loss of opportunity to utilise the land with new high-yielding crops is RM91,565,900.00.

The Defence

[5] The respondents did not dispute the fact that a temporary ban on the export of all logs was issued on 23 May 2018. The purpose was to facilitate cost- benefit studies on the export of logs from Sabah. The respondents also did not dispute the fact that the appellant wanted to export cultivated timber as opposed to timber from natural forests. However, in the affidavit in opposition, the respondents maintained that the Sabah Government has the power to impose the said ban on the export of all timber logs. The respondents also averred that the appellant could not export teak logs in any event as their registration certificate to export had expired on 30 June 2018. As for the instant action, the respondents averred that it is premature as the appellant did not wait for the outcome of their appeal to the Chief Minister to exempt the export of the cultivated logs in question. In respect of the mode of action, the respondents pleaded in the affidavit in opposition that the circular should have been challenged via a judicial review action instead of by way of Originating Summons. It followed that the Originating Summons action is an abuse of the process of the Co