Abdul Malik Ishak JCA (delivering judgment of the court)

INTRODUCTION

[1]There were two enclosures for our consideration. The first one was encl 25a which was a notice of motion filed by the respondent (Tun Dr Mahathir bin Mohamad). The second was encl 29a which was also a notice of motion filed by the appellant (Dato' Seri Anwar bin Ibrahim). We heard these two enclosures simultaneously.

[2]The notice of motion in encl 25a sought to move this court for the following orders pursuant to art 152 of the Federal Constitution and/or s 8s 3r 101

(a)the appellant's record of appeal filed in the appellant's appeal herein be struck out and/or set aside;

(b)consequently, the appellant's appeal herein be dismissed with costs; and

(c)the costs of this application shall be borne by the appellant.

[3]While the notice of motion in encl 29a sought the following prayers:

(a)that the applicant appellant be allowed to file this application out of time;

(b)that the applicant appellant be allowed to file and to serve the additional appeal record containing the memorandum of appeal in the Malay language within 21 days from the date of this order;

(c)the costs of the application to be borne by the applicant appellant; and

(d)any other order or relief which this court deems fit and suitable.

[4]Enclosure 25a was supported by an affidavit of the respondent that was affirmed on 1 January 2009. The reply to this affidavit was affirmed by Wan Anuar Shaddat bin Mohamed Amin ('Shaddat') on 6 October 2009 and it was styled as an affidavit in reply of the appellant. R Thayalan a/l Retanavalu responded on behalf of the respondent and he affirmed an affidavit on 16 October 2009.

[5]Whereas encl 29a was supported by an affidavit in encl 29b that was affirmed by Shaddat on 16 October 2009. For want of time and for expediency, the respondent relied on their affidavits pertaining to encl 25a by way of a rebuttal in countering encl 29a through a 'notis niat untuk merujuk kepada afidavit terdahulu' dated 20 October 2009 marked as encl 31.

THE BACKGROUND FACTS

[6]By way of a writ of summons and the statement of claim dated 27 January 2006, the appellant sued the respondent for an alleged defamation. The appellant had claimed that the respondent had defamed him during a press conference on 9 September 2005 at the premises of the Malaysian Human Rights Commission ('SUHAKAM') at Kuala Lumpur and published in the website of Malaysiakini under the heading Nobody will be safe from a 'gay' PM says Dr M. It was also published and reported in the Agence France-Presse ('AFP'), Singapore Business Times, Straits Times Singapore, The Associated Press ('AP'), The Age Newspaper in Melbourne and other publications.

[7]It seems that the appellant had claimed from the respondent compensatory damages, aggravated damages, exemplary damages, injunction, interests, costs and other reliefs deemed fit by the court. The respondent has since filed his defence against the appellant's suit on 14 April 2006. On 25 July 2006, the appellant filed his reply to the defence and subsequently amended it by way of a court order dated 15 February 2007.

[8]On 5 January 2007, the respondent filed a summons in chambers application to strike out the appellant's writ of summons and the statement of claim in its entirety and alternatively paras 6 and/or 7 and/or 8 and/or 9 and/or 11 and/or 12 of the statement of claim and/or that paras 13 and/or 14 and/or 15 and/or 16 and/or 17 and/or 18 and/or 19 and/or 20 of the amended reply be struck out.

[9]On 4 July 2007, the High Court had allowed the respondent's application and struck out the appellant's writ of summons and the statement of claim in its entirety with costs. The appellant, being dissatisfied with the decision of the High Court, had on 5 July 2007 filed the appeal to this court. The decision of the High Court has since been reported vide Dato' Seri Anwar bin Ibrahim v Tun Dr Mahathir bin Mohamad

[10]The respondent has been advised by his solicitors to say that there were