JUDGMENT
Abdul Rahman Sebli FCJ (Majority):
The Applications
[1] The dispute concerns a tussle between Tan Sri Musa Aman ("Tan Sri Musa") and Datuk Seri Shafie Apdal (Datuk Seri Shafie) for the position of Chief Minister of Sabah as a result of the defection of several State Assemblymen after the constituent seat results of the 14th General Election ("GE-14") were announced by the Election Commission ("EC").
[2] There were two applications before us, namely Application No: 08(f)-497- 12-2019(S) filed by Tan Sri Musa and the other by Datuk Jahid @ Noordin Jahim (Datuk Jahid) in Application No: 08(f)-503-12-2019(S). The 1st respondent in Application No: 08(f)-497-12-2019(S) is the Tuan Yang Terutama Yang di-Pertua Negeri of Sabah ("TYT") whilst the 2nd respondent was, at all material times, the Chief Minister of Sabah.
[3] The applications by Tan Sri Musa and Datuk Jahid were made pursuant to s 96 of the Courts of Judicature Act 1964 ("the CJA") for leave to appeal against the decision of the Court of Appeal dismissing their claims following its decision to uphold the respondents preliminary objection that their appeals were not competent because the appeals had become academic.
[4] At the commencement of the hearing before us, it was agreed by the parties that the outcome of Tan Sri Musas application in Application No: 08(f)-497-12-2019(S) would apply to Datuk Jahids application. Given the agreement between the parties, we proceeded to deal only with Tan Sri Musas application. After hearing arguments by both parties, my learned sister Justice Zabariah Mohd Yusof FCJ and I allowed the application while our learned brother Justice Mohd Zawawi Salleh FCJ dissented. These are our grounds for allowing Tan Sri Musas application for leave.
The Material Facts
[5] The material facts are not in dispute and they are as follows. Tan Sri Musa is the Assemblyman for the State constituency of N42 Sungai Sibuga. He was the leader of Barisan Nasional Sabah ("BN-Sabah") and at all material times its State Liaison Chief. Before the GE-14, BN-Sabah comprised eight political parties and they were: