A three-member bench comprising Mohamad Zabidin Mohd Diah, Kamardin Hashim and Rhodzariah Bujang had allowed a preliminary objection by Douglas Lind, the counsel for Sabah Chief Minister Shafie Apdal who is the second respondent in Musa’s appeal.
Kamardin said they allowed the preliminary objection, which effectively struck out the appeal, after agreeing with Shafie’s lawyer that the case was academic.
Musa’s counsel Tengku Fuad Ahmad said they were disappointed with the outcome and that they would bring up the case to the Federal Court as soon as possible.
“Obviously we are very disappointed with the Court of Appeal. We feel the merits of the appeal should have been heard and not struck out on mere technical grounds.
“We have immediate instructions to take this matter to the Federal Court. Tan Sri Musa maintains his position that he is the lawfully appointed CM and that appointment subsists,” he told reporters outside the courtroom.
Lind said the decision to throw out the appeal affirmed Shafie’s position as the chief minister.
“The decision was right and expected,” he said, adding they were ready to fight the case if it was taken to the apex court.
Earlier, Lind, in his submission for the preliminary objection, said the appeal by Musa was not competent as it had now become academic because the outcome would have no effect at all on the positions or interests of either the appellant or Shafie.
“The appellant (Musa) at best can only garner support of all the eight opposition members of the state assembly. Shafie on the other hand has the support of 52 assemblymen from Warisan, Upko, DAP, PKR and PPBM.
“The second respondent therefore has the support of more than two-thirds of the assembly,” he said.
He submitted that the court should not hear the appeal as there was clear evidence pointing to the huge margin of support for Shafie.
Lind also submitted a letter from the state assembly secretary dated October this year listing all the assemblymen, and the parties they were from, who supported Shafie.
Senior counsel for Musa, Anantham Kasinather argued, however, that the overarching aim of the lawsuit was to establish that the first respondent, who is Sabah governor Juhar Mahiruddin, had acted unconstitutionally when he replaced Musa with Shafie.
He said Musa never resigned nor did he concede his position as chief minister.
Tengku Fuad added that whether there was a consequence if the court were to rule in their favour was not the court’s burden.
“What happens in the future is not for this court to decide, that is for the state assembly or political leaders to decide.
“This is Sabah, whether you like it or not, you will have horsetrading or frog-leaping. We are dealing with unconstitutional conduct so it is not academic,” he said.
In dismissing the appeal, the court also ordered Musa to pay RM50,000 to Shafie and RM20,000 to the state attorney-general in costs. State AG Zaleha Rose Pandin appeared for Juhar.