JUDGMENT

Lau Bee Lan J:

[1] The petitioner, Dayrell Walter Entrie was a candidate in the Sarawak State Constituency of Layar (N31) in the recently held elections on 20 May 2006. The respondents were the Returning Officer of the Constituency ("the 1st respondent"), the Chairman of the Election Commission ("the 2nd respondent") and the returned candidate, Datuk Patinggi Tan Sri Alfred Jabu Anak Numpang ("the 3rd respondent").

[2] On 14 August 2006, with regard to the preliminary objection raised by 1st and 2nd respondents on the ground that the election petition has not disclosed any cause of action against 1st and 2nd respondents and petitioner by his counsel has confirmed that he is not contesting the objection, the court ordered the 1st and 2nd respondents' application to be struck out with agreed cost of RM1,000 to be paid two weeks from today (14 August 2006). Mr. Sim Hui Chuang, advocate for the 3rd respondent intimated to the court that they would be filing a notice of motion to strike out the petition which was set for hearing on 14 September 2006.

[3] At the hearing of notice of motion to strike out the petition by the 3rd respondent dated 14 August 2006 (encl. 29), Mr. Baru Bian, one of the three advocates appointed by the petitioner informed the court of a preliminary objection which was raised by the petitioner. The matter was heard on 14 September 2006 and I had ruled as follows:

Re: Preliminary Objection of the Petitioner dated 11 September 2006 (Encl. 49)

1. The Petitioner raised a Preliminary Objection to the filing of the Notice of Motion of the 3rd Respondent (Encl. 29) this morning on the grounds that the said Motion is defective and improperly filed, being filed by an individual, the advocate Mr. Sim Hui Chuang who is not permitted under the Election Petition Rules 1954 or the of Rules of High Court, 1980 and therefore must be struck out.

2. After hearing the Oral Submissions of Mr. Baru Bian, leading Counsel for the Petitioner and Dato' Cecil Abraham, leading Counsel for the 3rd Respondent, the Court's findings are as follows:

2.1 The starting point governing procedure and practice on election petitions is s. 42 of the Election Offences Act 1954 (Act 5) which provides:

(1) The procedure and practice on election petitions shall be regulated by the Election Petition Rules 1954 as provided for in the Second Schedule.

(2) When any matter is not expressly provided for in the Election Petition Rules 1954, the High Court Rules 1980 [P.U.(A) 50/1980] shall apply.

2.2 It is to be noted that there is no procedure with respect to the mode of how a preliminary objection is to be raised in the Election Offences Act 1954. However, in the case of Norbert Choong Kai Chong & Anor. v. Mohamed Idris bin Haji Ibrahim & Anor. [1980] 1 MLJ 316 where Harun J (as he then was) held that "that objections to an election petition are issues of law which should be disposed of as preliminary issues for which no notice is required.

This was followed in Ruhimin Adzmin @ Ruhimin bin Ajim v. Tan Sri Bernard Dompok & Ors [2005] 1 MLJ 345 where Datuk Clement Skinner J overruled the objection when it was argued that an application under O. 18 r. 19 of the Rules of the High Court 1980 should be filed to raise the objections instead of raising them as preliminary objections. Both are decisions which I agree and which I respectfully adopt.

2.3 Be that as it may, as a matter of practice, it is to be noted that there are a number of cases where preliminary objections in respect of election petitions are presented by way of Notice of Motion as in Ramley Mansor v. Suruhanjaya Pilihanraya Malaysia & Ors [2000] 6 CLJ 56 (see page 58 para c), Ruhimin Adzmin @ Ruhimin bin Ajim's case (supra) and Chiew Chiu Sing v. Dato Seri Tiong King Sing Election Petition No. 26-1-2004 (BTU) (2004) (a case cited by the Petitioner). In this case, the 3rd Respondent has chosen to present the Preliminary Objection by way of a Notice of Motion which as submitted by Dato'