Published on: Thursday, August 06, 2009 |
Kota Kinabalu: The Court of Appeal unanimously ruled Wednesday that Tan Sri Chong Kah Kiat has no legal standing to file an action against Chief Minister Datuk Seri Musa Aman and three others pertaining to an 88-feet Mazu statue (Goddess of the Sea) in Kudat.
Appeal Court Judges Datuk Md Raus Sharif, Datuk Abdull Hamid Embong and Datuk Sulong Matjeraie struck out the suit with costs and set aside a ruling by the High Court on an Application by the Defendants to determine whether Chong had the legal standing to file the suit.
Chong filed the suit following revocation of approval by the Kudat Town Board for construction of the statue, which was to have been initiated by the Kudat Thean Hou Charitable Foundation, of which he was Chairman.
Citing abuse of power, he named Musa, former State Secretary Datuk K.Y. Mustafa, State Local Government and Housing Ministry Permanent Secretary Datuk Ujang Sulani and the Kudat Town Board as Defendants.
At the early stage of the trial, the defendants in a bid to have the suit struck out, applied under Order 33 rule 2 of the Rules of the High Court (RHC) 1980 for a "preliminary issue" to be determined, which was whether Chong who was suing as the Chairman of the Foundation had the legal standing to file the action against them.
They contended that the Foundation was not a registered body, and by virtue of the provisions of the Societies Act 1966, an unlawful society.
On April 21 this year, Judicial Commissioner (JC) Yew Jen Kie dismissed the Application with costs, which prompted the Defendants to file this appeal.
The defendants as the Appellants were represented by counsel Datuk Mohammad Shafee Abdullah and Counsel Richard Barnes while Chong, as the Respondent was represented by counsel Raja Aziz Addruse and counsel Ansari Abdullah.
The Appeal Court Judges stressed that there was only one question to be determined in the application made under the O.33 r.2, that was, whether the Respondent had the legal standing to initiate the suit.
"It is clear from the Statement of Claim that the Respondent filed this suit in his name as "Chairman of the Kudat Thean Hou Charitable Foundation.
"The Appellants now say that this Foundation is an unlawful society and as such has no standing to proceed with its suit.
"The Respondent now says that it is actually a private trust body and capable of maintaining this suit. This is however not its pleaded case.
"Dato Shafee referred to two letters, one from the Amanah Raya Office and the other from the State Attorney General. Both confirmed that the Foundation remains an unincorporated body.
"Raja Aziz submitted that there are other facts that should be investigated by the High Court before coming to a decision on this preliminary issue.
"He said that the learned Judicial Commissioner had not been wrong in deferring this matter until the trial proper. He further said that the learned Judicial Commissioner had properly exercised her discretion, which this Court of Appeal should not disturb.
"O.33 r.2 Rules of the RHC 1980 allows such an application as this one before us to be taken up at any stage of the proceedings. If a matter can be finally resolved without going through a full trial, then for the sake of expediency and cost saving, this order should be utilised.
"To us the simple question that arises from this application is to determine who the Respondent is and whether he has a standing in this court.
"If the Respondent is found to be an unlawful society then the court must act to strike down his suit, without the need to proceed with the trial. This is in keeping with the underlying rationale of 0.33 r.2 Rules of the RHC 1980.
"In our unanimous view, the Respondent has no standing to maintain this action.
"From the two letters we mentioned earlier it is clear to us that the Respondent is an unincorporated body. To us there is nothing further for the learned Judicial Commissioner to enquire into.
"It is therefore our finding that the Respondent is neither a lawful society nor an incorporated trust foundation.
"For these reasons we allow the appeal with costs, and set aside the ruling made by the learned Judicial Commissioner."
Counsel for the Respondent has stated that they would file an appeal against the Court of Appeal decision to the Federal Court.
