Mayor loses bid to strike out SAPP signboard suit

KOTA KINABALU, Nov 11: The Mayor lost round one when his application to strike out a suit brought by Sabah Progressive Party (SAPP) against him for attempting to dismantle the party's Sabahtv.net signboard at its headquarters was thrown out Thursday.

High Court Judge Datuk David Wong dismissed the application with costs after hearing submissions from both parties.

He directed the defendant to file their defence on the main suit on or before Nov 25.

Earlier, Ken Yong, one of the counsel who represented SAPP Secretary-General Datuk Richard Yong We Kong who had filed the suit, informed the court that since both parties could not settle the matter out of court that they proceed with the Mayor's application to strike out the suit.

On Oct 10, senior State counsel Hanafiah Kasim had proposed an out-of-court settlement on the suit.

Wong, in delivering his ruling, held that Yong is an office bearer and can sue on behalf of the party.

He also ruled that the decided Federal Court's case cited by the Mayor's counsel does not apply in the present case because construing or interpreting the Kota Kinabalu Municipal Council (Advertisement) By-Laws 1983 was not a case based solely on substantive public law elements.

Wong also struck out the SAPP's Enclosure 3, after being informed by counsel Ken that they were withdrawing the Enclosure 3 since the defendant agreed not to remove the signboard until full disposal of the suit.

'The Enclosure 3 sought by the plaintiff was a prohibitory injunction restraining the defendant from removing their signboard or any other signboard at their premises.

Meanwhile, Hanafiah, in applying for the suit to be struck out, submitted, among others, that the plaintiff lacks capacity for want of locus standi to bring the action against the defendant as the Secretary-General and or as an office bearer on behalf of SAPP in breach of the provision of Section 90 of the Society Act 1966.

The plaintiffs action was an abuse of the process of the court, the issues and matters in the plaintiffs action, which is a challenge against the defendant in the exercise of its statutory powers and public functions, can only be brought by judicial review application, said Hanafiah.

Ken, who appeared together with counsel Peter Marajin in his rebuttal, submitted that the plaintiff was entitled to bring this action as an office bearer of the party and his action was not an abuse of the process of court.

Yong, on behalf of the party, filed the suit against the Mayor on July 22 for trying to take down the signboard at its headquarters in Bornion Centre, Luyang on July 9 and 11 this year.

The plaintiff claimed that the move by City Hall to dismantle the signboard was mala-fide, politically motivated and aimed at tarnishing the party's reputation and image.

The party is seeking a declaration that the by-law No 3(1) and 4 of the Kota Kinabalu Municipal Council (Advertisement) By-laws 1983 (the "Advertisement By-Laws") do not apply to them as they are a non-commercial entity.

The party is also seeking that the second notice issued by the defendant dated July 11 is mala fide and wrongful and is, therefore, null and void.

The party is also seeking a declaration that they have the right to display the Signboard No.2 (Sabahtv.net) at its own premises and a further declaration that they have the right to display any signboard subject to the onus of the defendant to prove that the signboard poses danger to the public and/or contains words or language that are prohibited by the laws of Malaysia.

The plaintiff is also seeking a Permanent injunction that the defendant be restrained from removing the signboard or any other signboard at their premises.

DE by Jo Ann Mool