Omar Bin Mammah v Minister of Local Government and Housing of the State of Sabah (S-01(A)-197-04/2022)

MINISTRY OF LOCAL GOVERNMENT … RESPONDENTS [In the Matter of Suit No. BKI-25JR-4/3-2021 In the High Court of Sabah and Sarawak at Kota Kinabalu] OMAR BIN MAMMAH (NO. K/P: 600214-12-5861) … APPLICANT

MINISTRY OF LOCAL GOVERNMENT …RESPONDENTS S/N kwo3ufNxfki4y3dbT1lxGw CORAM: AHMAD ZAIDI BIN IBRAHIM, JCA MOHAMED ZAINI BIN MAZLAN, JCA ALWI BIN HJ. ABDUL WAHAB, JCA GROUNDS OF JUDGMENT Introduction [1] The appeal arises out of the dismissal of the Appellant’s (the applicant in the High Court) Judicial Review application (“the application”) by the learned High Court Judge (“HCJ”) given on 15.3.2022. [2] The Appellant was initially appointed as Penasihat Teknikal, attached to the office of the Sabah State Secretary and thereafter as the President of Majlis Perbandaran Tawau (“MPT”) for the contract term of two years but barely three (3) months in the employment, his contract was reduced or rather terminated by the 1st and 2nd Respondents as alleged by the Appellant. [3] The 1st Respondent is the Minister of Local Government and Housing for the state of Sabah. [4] The 2nd Respondent is the Ministry of Local Government and Housing for the state of Sabah. S/N kwo3ufNxfki4y3dbT1lxGw [5] Both the 1st and 2nd Defendants are collectively referred to as “the Respondents” unless it is necessary to refer each of them in their respective capacities as the 1st Respondent or 2nd Respondent. Background facts [6] By a letter dated 9.9.2020 from Sabah State Secretary to the Secretary of Suruhanjaya Perkhidmatan Awam Negeri Sabah (SPANS), the State Government has agreed to appoint the Appellant as “Penasihat Teknikal” of Gred Utama C, Gred VU7 on contract basis and to be attached at the office of the Sabah State Secretary (“MM1”). [7] By letter dated 14.9.2020 from the Sabah State Secretary to Permanent Secretary of the 2nd Respondent informing that the State Government has affirmed (“memperakukan”) the appointment of the Appellant as President of Majlis Perbandaran Tawau (MPT) for two

years with effect from 14.9.2020 (“MM2”). [8] On 18.9.2020, a letter of appointment bearing reference SPANS(S) 600-1/040358/(8) was issued by SPANS to the Appellant entitled “Surat Tawaran Pelantikan Secara Kontrak” sebagai Penasihat Teknikal, Gred Utama C, Gred VU7 and the term of appointment was from 10.9.2020 until 9.9.2022 (“MM3”). [9] By a letter dated 24.9.2020 (“OM1”) from the 2nd Respondent to the Appellant, 1st Respondent has approved the appointment of the S/N kwo3ufNxfki4y3dbT1lxGw Appellant as President of MPT on contract for two (2) years commencing from 14.9.2020 until 13.9.2022. [10] As the President of MPT, the Appellant held the post of Gred Utama C, Gred VU7 with a monthly salary and other allowances amounting to RM13,286.00. [11] However, barely three (3) months into the term of his appointment, he received a letter dated 3.12.2020 from the 2nd Respondent informing him that his term as the President of MPT has been reduced from the period of t w o ( 2) years to 19.11.2020 with one month’s salary in lieu of the notice (“OM-5”). [12] The said letter was received by the Appellant on the 10.12.2020. The letter dated 3.12.2020 from Kementerian Kerajaan Tempatan Dan Perumahan (Ministry of Local Government and Housing) to the appellant (“OM5”) [13] Given the significance of the above letter relied upon by the Appellant to support his assertion that the Respondents lacked the authority to reduce his tenure as President of the MPT, we consider it appropriate to reproduce its contents in full below: “Tarikh: 3 Disember 2020 YBHG. DATUK OMAR HAJI MAMMAH Majlis Perbandaran Tawau Peti Surat No. 412 S/N kwo3ufNxfki4y3dbT1lxGw 91007 TAWAU YBhg. Datuk, PEMENDEKAN TEMPOH PERKHIDMATAN SECARA KONTRAK YBHG. DATUK SEBAGAI PRESIDEN MAJLIS PERBANDARAN TAWAU. Dengan hormatnya, saya merujuk perkara tersebut di atas.

Disertakan bersama ini surat pemendekan tempoh perkhidmatan secara kontrak daripada Suruhanjaya Perkhidmatan Awam Negeri Sabah rujukan SPANS(S):600- 1/1040358/(25) bertarikh 25.11.2020 untuk perhatian dan makluman YBhg. Datuk.

Selaras Dengan Fasal 8, Instrumen Majlis Perbandaran Tawau 1983, Yang Berhormat Datuk Seri Panglima Menteri Kerajaan Tempatan Dan Perumahan juga telah bersetuju memendekkan tempoh perkhidmatan YBhg. Datuk sebagai Presiden (Gred Utama C, Gred VU7) Di Majlis Perbandaran Tawau dengan serta merta berkuatkuasa mulai 19 November 2020 dengan dibayar satu (1) bulan gaji sebagai ganti notis.

Bagi pihak Kementerian, saya merakamkan setinggi-tinggi penghargaan dan terima kasih atas segala sumbangan dan khidmat bakti YBhg Datuk selama berkhidmat sebagai Sekian dan terima kasih S/N kwo3ufNxfki4y3dbT1lxGw ‘BERKHIDMAT UNTUK NEGARA’ Signed [Hajah Masnah Binti Matsalleh] Setiusaha Tetap Kementerian Kerajaan Tempatan dan Perumahan [14] The first paragraph of the above letter “OM5”, refers to the letter from Suruhanjaya Perkhidmatan Awam Negeri Sabah rujukan SPANS(S):600-1/1040358/(25) dated 25.11.2020. The letter dated 25.11.2020 from Suruhanjaya Perkhidmatan Awam Negeri Sabah to the Appellant (“MM5”) [15] Since this letter dated 25.11.2020 was referred to in the first paragraph of the letter dated 3.12.2020 (“OM5”), and is relevant for our consideration, we also reproduce its contents accordingly, in full as follows: “Tarikh: 25 November 2020 DATUK OMAR HAJI MAMMAH (No. Kad Pengenalan: 600214-12-5861) Melalui: Setiausaha Kerajaan Negeri Jabatan Ketua Menteri 88400 KOTA KINABALU S/N kwo3ufNxfki4y3dbT1lxGw (u.p. : Ketua Pengarah, Jabatan Perkhidmatan Awam Negeri) YBhg. Datuk, PEMENDEKAN TEMPOH PERKHIDMATAN SECARA KONTRAK Dengan segala hormatnya, saya diarah merujuk perkara di atas.

Adalah dimaklumkan bahawa Kerajaan Negeri telah memutuskan untuk memendekkan tempoh perkhidmatan kontak YBhg. Datuk sebagai Penasihat Teknikal Gred Utama C, Gred VU7.

Sejajar dengan perkara (9) Kotrak Perjanjian Perkhidmatan yang sitandatangani antara YBhg. Datuk dengan pihak Kerajaan Negeri pada 03 November 2020, maka Kontrak Perjanjian Perkhidmatan YBhg. Datuk sebagai Penasihat Teknikal Gred Utama C, Gred VU7 adalah dipendekkan dengan serta merta berkuatkuasa mulai 19 November 2020 dengan dibayar satu (1) bulan gaji sebagai ganti notis.

Kerajaan Negeri merakamkan ucapan terima kasih dan penghargaan khidmat bakti yang YBhg Datuk curahkan sepanjang tempoh perkhidmatan YBhg. Datuk. S/N kwo3ufNxfki4y3dbT1lxGw Sekian dan terima kasih. ‘BERKHIDMAT UNTUK NEGARA’ ‘SABAH MAJU JAYA’ Saya yang menjalankan amanah, Signed (SITI AFSAH MOHD. KUDI) Binti Matsalleh] Setiusaha Tetap Suruhanjaya Perkhidmatan Awam Negeri Sabah The Appellant’s application [16] Dissatisfied with the decision that was purportedly made by the Respondents based on the Appellant’s interpretation of the letter dated 3.12.2020 (“OM5”), the Appellant filed the application for the following reliefs:

A declaration that the 1st and 2nd Respondent’s action of reducing the Applicant’s tenure as President of MPT is illegal, wrongful and/or ultra vires;

Further and or in the alternative, a writ of certiorari quashing the 1st and/or 2nd Respondent’s action of reducing the Applicant’s tenure as President of MPT; S/N kwo3ufNxfki4y3dbT1lxGw

Compensatory relief in the sum of Ringgit Malaysia Two Hundred Eighty-Three Thousand Eight Hundred Seventy-Seven and Cents Fifty-Three (RM 283,877.53) only being the monthly salary and other allowances for the Applicant’s remaining tenure as President of MPT from the 19.11.2020 until 13.9.2022;

All gratuities and benefits calculated as if the Applicant had completed his tenure as President of MPT up till 13.9.2022;

An Order for aggravated and general damages for the reduction of the Applicant’s tenure as President of MPT to be assessed. The Appellant’s submission [17] In supporting the application, the Appellant relied on the following grounds:

Section 8 of the Tawau Municipal Council Instrument 1983 does not grant any power to the 1st Respondent and/or the 2nd Respondent to reduce the Appellant’s tenure as the President of MPT. Under the circumstances, the 1st and/or the 2nd Respondent’s action in reducing the tenure of the President of MPT is illegal, unlawful, wrongful and or ultra vires.

(ii) The Appellant was constructively dismissed or dismissed unlawfully without him even knowing of it. S/N kwo3ufNxfki4y3dbT1lxGw

(iii) The Appellant was not given the opportunity of being heard and it is contrary to Article 135 (2) of the Federal Constitution.

(iv) The unlawful reduction also amounts to a breach of contract based on the Appointment Letter. [18] The reduction of the Appellant’s tenure as President of MPT had already taken effect on 19.11.2020, although the Appellant only received the official letter dated 3.12.2020 on 10.12.2020. It was therefore contended that the decision to reduce the Appellant’s tenure was made retrospectively, as the effective date preceded the issuance of the formal notification. [19] The Appellant further contended that he was, in effect, constructively dismissed by the respondents without being informed of the reasons for the decision or afforded a fair opportunity to respond. He cited the Federal Court’s case of Pihak Berkuasa Tatatertib Majlis Perbandaran Seberang Perai & Anor v. Muziadi Mukhtar [2020] 1 CLJ 1 to support his contention that the parties must be afforded the opportunity to participate in the decision that would affect them by influencing the outcome of the decision. [20] The Appellant argued that it was indisputable that he was not given a reasonable opportunity of being heard before his tenure was reduced in breach of Article 135 (2) of the Federal Constitution. S/N kwo3ufNxfki4y3dbT1lxGw 1st and 2nd Respondents’ submission [21] In response, the 1st and the 2nd Respondents argued that by virtue of section 8 of Tawau Municipal Council Instrument 1983, the President of MPT shall be a member of State Public Service. In line with the requirement of the said provision, SPANS by letter of offer dated 18.9.2020 offering the Appellant the post of Penasihat Teknikal, Gred Utama C, Gred VU7 and the term of appointment was for two (2) years. [22] Upon the Appellant’s appointment as Penasihat Teknikal, Gred Utama C, VU7, he was thereafter appointed as President of MPT through a letter dated 24.9.2020 from the 2nd Respondent stating that his appointment was approved by the 1st Respondent. [23] The Respondents submitted that the authority who appointed the Appellant into the State Public Service is SPANS. Similarly, SPANS is vested with the authority to terminate the appointment of the Appellant of the same position based on the Agreement dated 3.11.2020 entered into between the Appellant and the State Government of Sabah (“MM-7”). [24] Further, it was submitted that the letter dated 3.12.2020 (“OM5”) referred to in the affidavit in support of the Appellant in particular paragraph 3 of the letter is merely an agreement or a blessing of the Minister in charge of the Ministry of Local Government and Housing on the reduction of the service or the termination of the appellant by SPANS. The same cannot be interpreted as if the power to reduce S/N kwo3ufNxfki4y3dbT1lxGw the contract of service or rather the termination of the Appellant is vested upon the Respondents. [25] Thus, the Respondents submitted that the Appellant’s application is misplaced as it was not the Respondents’ decision to reduce the term of the service of the Appellant. The Respondents were wrongly named as parties in this application as the authority responsible for the termination of the Appellant was SPANS (see Samsiah Binti Leman v. Ketua Polis Negara & Ors [2016] 7 MLJ 149). [26] Finally, the Respondents submitted that the termination of the Appellant from his position in the State Public Service was lawfully made in accordance with Clause 9 of the Agreement between the Appellant and the State Government of Sabah dated 3.11.2020 (see “MM7”). In support of that proposition, the Appellant cited the case of Dr Meer Ahmad bin Mydin Meera v Public Services Commission Malaysia & Ors [2009] MLJU 1455 (HC), where Justice T. Selventhiranathan held: “In the circumstances, the plaintiff in the present case who was employed under a contract of service, terminable by written notice without being entitled to be furnished with the reasons for such termination, was in no position to insist that he should be heard before his services were terminated. The law does not require he be given a hearing before such termination. In the present case, the second defendant had the contractual right, which was lawfully delegated to him, to terminate the services of the plaintiff under clause 9 of the agreement. The plaintiff, having agreed to the terms of the agreement, was in no position to further insist that the second S/N kwo3ufNxfki4y3dbT1lxGw defendant should have acted under clause 8 of the agreement before proceeding to terminate his services by notice in writing. The agreement gave the employer of the plaintiff the right to choose the provision of the agreement it wished to act under in terminating the services of the plaintiff.” The High Court’s decision [27] Learned HCJ was of the view that the Appellant’s reliance of the letter dated 3.12.2020 (“OM5”) to say that it was the 1st and 2nd Respondents’ decision to reduce the Appellant’s term of employment is misconceived. [28] By referring to paragraphs 2 and 3 of the said letter i.e. “OM5”, learned HCJ held as follow: “[15] In my view after reading para 2 dan para 3, the gist of the letter is found in para 2 and not para 3. Para 2 clearly states that the reduction in the terms of contract was made by SPANS. [16] Para 3 cannot be taken as to show that is (sic) was the Respondents had decided to make the decision to reduce the Plaintiff’s term of appointment. Following this finding, the issue of whether the Respondents did no (sic) have the authority under Section 8 of the MPT Instrument 1983 did not arise at all.” S/N kwo3ufNxfki4y3dbT1lxGw [29] Learned HCJ then referred to the letter dated 25.11.2020 (“MM5”) that was referred to in paragraph 2 of the letter “OM5”. The learned HCJ observed on the contents of “MM5” and held as follows: “[18] From this letter, it is clear that the reduction in the terms was made by SPANS and this letter was also addressed to the Plaintiff. In this case as the Plaintiff was appointed by SPANS (see MM-3) and the reduction was also made by SPANS which had the authority to reduce the terms or to terminate the appointment. In this circumstances, I do not see any reasons to allow Prayer 1. [19] As for Prayer 2, there was no evidence adduced to show the reduction of the terms could be subjected to Judicial Review as the Respondents were not the party that had reduced the term of appointment of the Plaintiff. [20] In view of my findings above, the prayers sought by the Plaintiff i.e prayer 3, 4 and 5 also have no basis. In this case, I am also of the view that the contract that the Plaintiff had entered into with the State Government provides that the reduction in the term on the Plaintiff’s appointment may be terminated with a month’s notice (see MM-7 at Clause 9). [21] Based on all the above reason, the Application by the Plaintiff is dismissed with costs to be given to the Respondents.” S/N kwo3ufNxfki4y3dbT1lxGw Our Findings [30] Learned counsel for the Appellant submitted that the Appellant held two (2) distinct appointments: first, as President of MPT for the term from 14.9.2020 to 13.9.2022, pursuant to the appointment letter dated 24.9.2020; and second, as Penasihat Teknikal for the period from 1.9.2020 to 31.8.2022, pursuant to a separate letter dated 9.9.2020. [31] Whilst the Appellant does not dispute the reduction of his tenure as Penasihat Teknikal, he challenges the reduction or rather his termination of his appointment as President of MPT. He contends that the 1st and 2nd Respondents lacked the requisite authority to effect such termination, relying on his interpretation of the letter dated 3.12.2020 (“OM5”). [32] According to the Appellant, section 8 of the Tawau Municipal Council Instrument 1983 does not grant any power to the 1st and/or 2nd Respondent to reduce the Appellant’s tenure as the President of MPT. It was further argued that the 1st and/or the 2nd Respondent’s action in reducing the tenure of the Appellant as the President of MPT is illegal, unlawful, wrongful and/or ultra vires. [33] Learned State legal counsel for the Respondents on the other hand submitted that it is a pre-requisite that the Appellant must be appointed as a member of the State Public Service before he can be considered for the post of the President of MPT. In the present case, the Appellant was appointed first as Penasihat Teknikal S/N kwo3ufNxfki4y3dbT1lxGw commencing from 1.9.2020 before he was subsequently appointed as the President of MPT upon the approval and affirmation by the minister in charge of the Ministry of Local Government and Housing. [34] The Respondents further submitted that the authority to appoint the Appellant to the State Public Service was conferred upon SPANS. Consequently, the Respondents argued that the power to reduce the term of appointment or terminate lies solely with the appointing authority, and not with the Respondents. [35] We agree with the interpretation of the learned HCJ on the contents of the letter dated 3.12.2020 (“OM5”), in which paragraph 2 thereof refers specifically to the letter dated 25.11.2020 (“MM5”) from SPANS to the Appellant to reduce the Appellant’s tenure as Penasihat Teknikal. [36] It is evident from the letter dated 25.11.2020 that the State Government had decided to reduce the Appellant’s service as Penasihat Teknikal, effective from 19.11.2020, invoking Clause 9 of the Agreement dated 3.11.2020 (“MM7”) entered into between the State Government and the Appellant, providing one (1) month’s salary to the Appellant in lieu of notice. [37] A cross-reference to the letter dated 3.12.2020 (“OM5”), upon which the Appellant relies, reveals that the effective date likewise commenced on 19.11.2020, with one (1) month’s salary to be paid to the Appellant in lieu of notice. S/N kwo3ufNxfki4y3dbT1lxGw [38] We find that the learned HCJ was not erred in his decision that the Appellant was appointed by SPANS and it was SPANS who had the authority to reduce the tenure of the Appellant or rather to terminate the Appellant’s appointment under Clause 9 of the Agreement entered into between the State Government and the Appellant. [39] Clause 9 of the Agreement reads as follows: “9. Kerajaan boleh pada bila-bila masa memberhentikan perkhidmatan Pegawai dengan memberi notis secara bertulis seperti diperuntukkan dalam Jadual kepada Perjanjian ini atau dengan membayar kepadanya satu bulan gaji sebagai Ganti notis itu.” [40] We take the view that the phrase “reduction of the fixed term of contract of service” bears the same practical effect as “termination of the contract of service,” in that both result in the Appellant’s immediate cessation of employment from the effective date, namely 19.11.2020, as reflected in the letters dated 25.11.2020 (“MM5”) and 3.12.2020 (“OM5”). However, such reduction in the contractual term does not amount to a dismissal, as alleged by the Appellant, given that he had expressly accepted the terms and conditions of his appointment under the Agreement dated 3.11.2020 entered into with the State Government. [41] We find that although there appeared to be two different positions held by the Appellant i.e. as Penasihat Teknikal and as President of MPT, in the context of the present case, we are of the view that the Appellant must be first absolved into the State Public Service (as S/N kwo3ufNxfki4y3dbT1lxGw Penasihat Teknikal) before he is eligible to be appointed as President of MPT with the blessing or the agreement of the Minister in charge of the Ministry i.e. the 1st Respondent which in our view aligns with section 8 of the Tawau Municipal Council Instrument 1983. [42] This is crucial because section 8 of Tawau Municipal Council Instrument 1983 requires that in order for any person be appointed as the President of MPT, such person shall be a member of the State Public Service. Section 8 reads as follows: “8. The President who shall be the Chairman of the Council, and the Vice President, shall be appointed by the Minister for such period being longer than one year as he may determine and such persons shall be members of the State Public Service.” [43] Thus, the letter issued by SPANS dated 25.11.2020 (‘MM5”) terminating the Appellant as Penasihat Teknikal under the State Public Service with effect from 19.11.2020 necessarily renders the termination of the Appellant’s concurrent appointment as the President of MPT effective from the same date. [44] We agree with the learned State legal counsel that the 1st and 2nd Respondents were wrongly named as parties in this application as the authority responsible for reducing the Appellant’s term of service or more precisely, effecting his termination was SPANS and not the 1st and 2nd Respondents. Since that the Respondents neither possessed the authority to appoint the Appellant nor the power to S/N kwo3ufNxfki4y3dbT1lxGw terminate or vary the terms of his contract of service, the Appellant’s contention that the Respondents acted ultra vires in reducing his tenure as President of MPT is misconceived and untenable. [45] We agree with the submission of the learned State legal counsel that section 8 of Tawau Municipal Council Instrument 1983, being subsidiary legislation, cannot override or displace the constitutional authority vested in SPANS. The powers relating to appointment, confirmation, emplacement on the permanent or pensionable establishment, promotion, transfer, and disciplinary control over members of the public service are expressly conferred upon SPANS under Article 37(1) of the Constitution of the State of Sabah. Any provision in subsidiary legislation purporting to confer such powers upon another body must yield to the superior constitutional framework. [46] We are unable to discern any cogent logic in the submission of learned counsel for the Appellant that the Appellant could effectively hold two (2) concurrent appointments namely, as Penasihat Teknikal and as President of MPT, given that both roles appear to require his presence at separate and distinct workplaces. The periods of appointment overlap, and it is not immediately apparent how the Appellant could reasonably be expected to discharge the duties of both positions simultaneously. S/N kwo3ufNxfki4y3dbT1lxGw Conclusion [47] Upon our review, it has not been shown to us that the findings of the learned HCJ are plainly wrong. We have no reason to intervene and we affirm that findings. [48] For the above reasons, the appeal is dismissed. [49] We award costs of RM 15,000.00 to the Respondents. Dated this: 9th September 2025 -sgd-ALWI BIN HJ. ABDUL WAHAB JUDGE COURT OF APPEAL COUNSEL: For the Appellant: Syaiful Sufyyan Bin Sidin (Fererick Chang with him) Messrs. Chang & Kamarudin Co. For the 1st and 2nd Respondents: Calvin Joy Ensui Jabatan Peguam Besar Negeri Sabah S/N kwo3ufNxfki4y3dbT1lxGw