Wednesday, August 5, 2009

Musa won his appeal to strike out Chong's suit over the stoppage of Mazu statue project in Kudat

Photo caption: Chong with his counsel Raja Aziz leaving the courtroom after the proceedings yesterday

By Kelimen Sawatan

KOTA KINABALU: The Court of Appeal here today struck out with cost the two suits brought by former Chief Minister Tan Sri Chong Kah Kiat against his successor Datuk Seri Musa Hj Aman and Kudat Town Board over the stoppage of the Mazu (Goddess of the Sea) statue construction project in Kudat.

Court of Appeal Judge Datuk Md Raus b Sharif who sat together with Judges Datuk Abdul Hamid b Embong and Datuk Sulong Matjeraie unanimously allowed the appeal by Musa and three other appellants to set aside the High Court Judicial Commissioner's decision in rejecting their application to strike out the suit against them.

In allowing the appeal, the three-judge bench unanimously held that the respondent (Chong) had no standing to maintain this action.

The three other appellants were former State Secretary Datuk KY Mustafa, Permanent Secretary of the State Housing and Local Government Ministry Datuk Ujang Sulani and the Kudat Town Board.

All the appellants were represented by counsel Datuk Shafee b Abdullah, Richard Barnes and Hasan Murtaza.

The second suit that was struck out with cost by the Court was Chong's originating motion against Kudat Town Board and Central Town and Country Planning Board.

The two Boards were also represented by Shafee, Richard Barnes and Hasan while Chong was represented by counsel Raja Aziz Addruse, Hj Ansari Abdullah and Erveana Ansari.

The court in its judgment held that the only question to be determined in this application made under Order 33, Rule 2, of Rules of High Corut 1980 was whether the respondent has the legal standing to initiate this 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 says that it is actually a private trust body and capable of maintaining this suit. This is however not its pleaded case," Md Raus said adding that Shafee had refered to two letters, one from the Amanah Raya Office and the other from the State Attorney General.

"Both confirmed that the Foundation remains unincorporated body. Yang Mulia 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 (Raja Aziz) 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," Md Raus said.

"Order 33, Rule 2, of Rules of High Court, 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, the Order should be utilised," he further said.

"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," Md Raus said adding that if the respondent was 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 rational of Order 33, Rule 2, of Rules of High Court, 1980. In our unanimous view, that the respondent has no standing to maintain this action," he said.

Md Raus contended that from the two letters mentioned earlier on, it was clear to them that the respondent was 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, " Md Raus said in striking out both suits brought by Chong.
High Court Judicial Commissioner Yew Jen Kie had on April 21, this year, dismissed with cost the application to strke out the suit by Musa, KY Mustafa, Ujang Sulani and the Kudat Town Board who were the first, second, third and fourth defendents respectively.

At the same time, Yew also dismissed their appeal to stay the proceeding of the trial that has already been partly heard with three witnesses having testified, including Chong.

Chong filed the first suit against Musa and the three other defendents on Feb 6, 2008 to seek a declaration from the High Court that Musa had, in giving directions and orders to the other defendants acted mala fide and/or in abuse of his power as the Chief Minister and/or ultra vires the Local Government Ordinance and the Town and Country Planning Ordinance.

He is also seeking a declaration that a 'fatwa' issued by the State Mufti on July 7, 2006, is unconstitutional as it infringes upon Article 11 of the Federal Constitution, and a declaration that the letter of approval dated Feb 8, 2006 by the fourth defendant is valid.

Chong is further seeking a court declaration that the letter of withdrawal of approval dated Nov 15, 2007 also issued by the fourth defendant is null and void.

Meanwhile the second suit against Kudat Town Board and Country Planning Board who were the first and second defendents respectively, was filed on Dec 12, 2007.

In his originating motion, Chong is seeking a court order to revoke the letter of withdrawal of approval issued by the Kudat Town Board on Nov 15, 2007.

He is also seeking an order to confirm that the letter of approval dated Feb 8, 2006, was valid and binding on all parties concerned.

Meanwhile when met outside the court after the proceedings, Ansari said that they will be appealling against the Court of Appeal's decision at the Federal Court.

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