The Court of Appeal in Kota Kinabalu yesterday struck out with costs, two suits brought by former Sabah Chief Minister Chong Kah Kiat against his successor Musa Aman and three other appellants over the aborted Mazu (Goddess of the Sea) statue project in Kudat.

Court of Appeal Judge Mohd Raus Sharif who sat together with Judge Abdul Hamid Embong and Judge Sulong Matjeraie unanimously allowed the appeal and set aside Judicial Commissioner Yew Jen Kie's decision on April 21 rejecting their application to strike out the suit and his originating motion. The trial started on Jan 12.

The judges held that the respondent (Chong) had no standing to maintain the action. Chong was represented by Raja Aziz Addruse ( below, centre ), Ansari Abdullah and Erveana Ansari.

NONE Musa and the three other appellants - former state secretary K Y Mustafa, permanent secretary of the State Housing and Local Government Ministry Ujang Sulani and the Kudat Town Board - were represented by counsels Mohammad Shafee Abdullah, Richard Barnes and Hasan Murtaza.

The second suit struck out with costs by the court was Chong's originating motion against the Kudat Town Board and the Central Town and Country Planning Board. The two boards were represented by the same counsels.

The court held, in its judgment, that the only question to be determined in the application made under Order 33, Rule 2 of the Rules of the High Court 1980, 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 the 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," said Judge Mohd Raus.

Foundation an unincorporated body

"The respondent says that it is actually a private trust body and capable of maintaining this suit. This is, however, not its pleaded case."

Mohd Shafee had referred to two letters, one from the Amanah Raya office and the other from the state Attorney General which both confirmed that the foundation remains an unincorporated body, noted the Judge.

"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," said the Judge.

"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 commissioner had properly exercised her discretion which this Court of Appeal should not disturb."

"Order 33, Rule 2 of the Rules of the High Court 1980 allows such an application as this one before us to be taken up at any stage of the proceedings.

goddess of the sea statue sabah court hearing chong 240409 If a matter can be finally resolved without going through a full trial, then for the sake of expediency and cost savings, the order should be utilised."

The Judge held that the question that arises from the application was to determine who the respondent is and whether he has a standing in the court.

He said 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 was in keeping with the underlying rationale of Order 33, Rule 2 of the Rules of the High Court 1980.

"In our unanimous view, the respondent has no standing to maintain this action," said Judge Mohd Raus and made reference to two letters mentioned earlier and which made clear that the respondent was an unincorporated body.

Chong to appeal decision

"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."

He then struck out both the suits brought by Chong.

Ansari ( below ) confirmed that he had received instructions to apply for leave to appeal. Prime Minister Najib Razak had raised the possibility of either an amicable solution or an out-of-court settlement during his maiden visit as PM to Sabah in early May.

goddess of the sea statue sabah court hearing ansari and chong 220409 In his originating motion filed on Dec 12 last year, Chong sought a court order to revoke the withdrawal of the letter of approval issued by the Kudat Town Board on Nov 15, 2007.

He is also seeking a declaration that the letter of approval issued by the Kudat Town Board on Feb 8, 2006 was valid and binding on all parties.

Futhermore, Chong is also seeking a declaration that a "fatwa" issued by the state Mufti on July 7, 2006 - against the construction of the Mazu statute - is unconstitutional as it infringed upon Article 11 of the Federal Constitution; and a declaration that the letter of approval dated Feb 8, 2006 by the fourth defendant, the Kudat Town Board, was valid.

Chong, in his civil suit, is also seeking a declaration from the 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.

The former Chief Minister had previously told the court several times that he received divine instructions from Mazu - the Goddess of the Sea - through the Taoists, "especially mentioning my name that I should take the lead to put up a statue in Kudat for the good and prosperity of the people in Kudat".

Chong resigned as deputy Chief Minister and Minister of Tourism, under the rotation formula in the Musa cabinet, after the project was stopped on April 13, 2007.

By the time that Chong's Mazu project was brought to a halt, a 20-foot platform to place the 88-foot statue project had already been completed.

Work was about to begin on assembling 408 pieces of specially imported crafted granite stones which would make up the statue when it was stopped.

The RM1.5 million worth granite pieces from China are still at the 2.3 acre site and kept in 23 containers.