JUDGMENT

Gopal Sri Ram JCA:

Introduction

There are two appeals before us. The first is Civil Appeal No. 202/97 which we shall for convenience refer to as "the first appeal". It is directed against the refusal by Ian Chin J, sitting in the High Court at Kota Kinabalu, to grant orders of certiorari sought by the appellant. The other is Civil Appeal No. 669/97 ("the second appeal") which arises out of an earlier decision in the same proceedings whereby the High Court, when granting leave to issue certiorari, refused to order that such leave do operate as a stay. Although we will say something more about the correctness of the decision that forms the subject matter of the second appeal later in this judgment, it suffices for the present to note that a resolution of the first appeal in one way or another will render the second appeal academic. We are therefore concerned in the main with the first appeal. Counsel on all sides were in agreement that this is the correct way in which to approach these appeals.

When these appeals were called on for hearing before us on 30 March 1998, counsel for the appellant informed us that he had two motions in the first appeal. The first of these motions was for a stay pending appeal. It was unopposed. We therefore granted the stay sought by the appellant pending the disposal of the first appeal. We also ordered that the costs of the first motion follow the outcome of the first appeal.

By the second motion the appellant sought to re-amend the amended substantive motion filed before the High Court by seeking certiorari to quash the direction issued by the second respondent. The first respondent did not oppose this application. But the learned State Attorney General for Sabah did. After hearing arguments upon the second motion we came to the conclusion that it ought not to succeed.

In our view, having regard to the substratum of the facts of this case, the amendment was unnecessary. Further, to allow the amendment at this late stage would have resulted in much procedural difficulty. Leave to apply for the fresh relief is required. We have no original jurisdiction to grant such leave and hear the substantive motion for certiorari unless leave has been refused by the High Court in the first instance. See Mohamed Nordin bin Johan v. Attorney-General, Malaysia [1983] 1 MLJ 68. Lastly, the relief now sought by the re-amendment could have been applied for when the substantive motion was amended before the learned judge in the High Court. Taking into account all relevant matters, we exercised discretion against the appellant and dismissed the second motion. We also ordered the appellant to bear the taxed costs of this motion in any event.

With that we now turn to consider the merits of the first appeal.

Background

The appellant is a citizen of the Federation of Malaysia. Although a West Malaysian, he has been in Sabah since 1975. In 1985 he was admitted as an advocate of the Bar of Sabah. He has been practising law in that State ever since. He does not, however, belong to Sabah because he is not as yet a permanent resident of that State. To acquire that status, he must fulfill certain requirements under the Immigration Act 1963 ("the Act") in so far as it applies to the East Malaysian States. The relevant provision is s. 71(1)(a) of the Act . It reads:

71(1)For purposes of section 66 , a citizen shall be treated as belonging to an East Malaysian State if -

(a) he is or has within the preceding two years been a permanent resident in the East Malaysian State.

As will be seen in a moment, it was important to the appellant that he, in the words of the Act, belongs to Sabah. It would mean that he can enter the State freely and reside there permanently. Otherwise he would require a Permit or Pass under s. 66 of the Act to enter Sabah.

Initially, the appellant resided in Sabah pursuant to a work pass issued under reg. 16 of the Immigration Regulations 1963. It was not permanent in nature because the pass c