ABDUL MALIK ISHAK J

This was an application by the defendant by way of summons-in-chambers (encl 9) to strike out the plaintiff's originating summons (encl 4) wherein the plaintiff sought the following prayers:

(1)Satu deklarasi bahawa kelulusan kebenaran merancang (‘planning permission’) bagi projek Kota Terapung di Selat Tebrau yang telah diluluskan pada 12 Januari 1994 oleh defendan kepada Johor Coastal Development Sdn Bhd adalah tidak sah dan tidak berkuatkuasa kerana ianya bercanggah dengan Akta Perancangan Bandar dan Desa 1976.

(2)Kebenaran jika ada, yang telah diberi oleh defendan kepada Johor Coastal Development Sdn Bhd untuk memulakan kerja-kerja pembangunan di projek Kota Terapung adalah tidak sah kerana melanggar Akta Jalan, Parit dan Bangunan 1974 dan Undang-Undang Kecil Bangunan Seragam 1984.

(3)Bahawa plaintif berhak mendapat jawapan daripada defendan mengenai surat yang telah dikemukakan kepada defendan yang bertarikh 7 September 1994.

(4)Kos.

(5)Apa-apa relief yang difikirkan sesuai dan adil oleh mahkamah yang mulia.

At the outset, Encik Roger Tan Kor Mee acting for the defendant raised a preliminary objection to the effect that prayer 1 of the plaintiff's originating summons in encl 4 had gone stale and became academic and therefore it was a sheer waste of judicial time to proceed with the hearing of encl 4. It seemed that the planning permission dated 12 January 1994 granted to the Johor Coastal Development Sdn Bhd (‘JCD’) by the defendant to develop the floating city had lapsed on 11 January 1995, and the defendant had issued a fresh planning permission to JCD on 12 January 1995. These facts could be gleaned from the further affidavit of the defendant affirmed through Dato' Hj Hashim Bin Hj Yahaya, the Dato' Bandar himself (encl 12).

Encik Abdul Razak Ahmad, in his personal capacity as the plaintiff, submitted that the originating summons in encl 4 dated 19 November 1994 was supported by an affidavit of the plaintiff himself dated 17 November 1994 as opposed to the further affidavit of the Dato' Bandar (encl 12) which was affirmed on 20 January 1995 and, consequently, he submitted that when the originating summons in encl 4 was filed, the planning permission granted to JCD was still valid and what was sought then in prayer 1 was perfectly legitimate and not academic in nature. Alternatively, he submitted that even if prayer 1 to encl 4 was, by effluxion of time, academic and a waste of judicial time to adjudicate upon, yet prayers 2 and 3 of encl 4 were good and valid as they were under a different set of laws and should be adjudicated upon.

In an emotional outburst, Encik Abdul Razak Ahmad submitted that he disliked going to court and if the defendant had answered his letter as reflected in exh ARA1 in encl 3, he would not have pursued the matter further. He submitted that Johor Bahru did not belong to the Dato' Bandar who could be removed from office at any time; the ratepayers were entitled to be heard and the manner in which the defendant was managed left much to be desired.

The defendant's counsel drew the court's attention to the failure of the plaintiff to file an affidavit in opposition to that filed by the Dato' Bandar in encl 12 and he submitted that this was fatal. Raja Azlan Shah J, (as His Majesty then was) in Shanghai Hall Ltd v Town House Hotel Ltd

The appellants did not file any affidavit. Pausing here for a moment, I agree with the learned judge that omission to file an affidavit in reply was not fatal to the appellants’ case as they were not obliged to do that.

Here, the crucial question to ask is this: Was the plaintiff obliged to file an affidavit in reply to encl 12 as filed by the Dato' Bandar? Obviously, the whole case had to be decided on affidavit evidence alone and thus the plaintiff should have filed an affidavit in reply as he must have realized the importance of replying to the Dato' Bandar's affidavit. Consequently, the failure of the plaintiff in filing an affidavit in opposition would me