Judicial Commissioner Yew Jen Kie will rule on Tuesday next week, whether the Kudat Thean Hou Charitable Foundation (KTHCF) chaired by former chief minister Chong Kah Kiat exists in an application before the court.

chong kah kiat She made the decision after oral submissions yesterday from counsel Mohammad Shafee Abdullah, who represented Sabah Chief Minister Musa Aman and three other defendants, and Ansari Abdullah who represented Chong.

Musa and three other defendants have been accused by Chong of abuse of power for terminating the construction of an 88-foot Mazu (Goddess of the Sea) statue in Kudat.

In turn, they contend that the foundation is not registered with the Registrar of Societies and are seeking to strike out Chong’s suit against them.

Shafee, in his submissions to strike out the suit, contended that it was only proper that the foundation be registered under the Societies Act or any other entity so that it can sue and be sued.

“The requirement of such registration is a requirement of statute,” argued Shafee and added that when Chong and the KTHCF applied to the Kudat Town Board for permits to build the statue, and approached the court in two proceedings, they misrepresented themselves as a legal entity.

The Societies Act holds that a foundation must be registered if it has seven members or more and estoppels cannot be used to defeat statutory requirements, Shafee submitted.

“Can estoppels lie in the face of public authority? The answer must be no,” said Shafee.

“You must first of all have a body, then you apply to have it registered under the law. So, there is neither a body nor a trustee in corporation in this case.”

He pointed out that Messrs Shelley Yap & Co, for Chong, tried to register the foundation under Trustee Incorporated but this was rejected.

'No condition it must be a registered body'

Ansari, in rebutting Shafee’s submission, told the court that the plaintiff was not seeking any action in court to order or stop the defendants from carrying out their statutory duties.

He added that “none of the provisions cited, be it the Societies Act, the Trustee Act or the Sabah Trustees are under the purview of the four defendants or their duties”.

Ansari pointed out to the court that when the defendants suspended construction work on the Mazu statue, they never raised the registration matter with the foundation.

“The letter of withdrawal was given and addressed to Chong but they never questioned the legal status of the appellant but proceeded to file the affidavit in opposition,” he said.

”Unless my learned friend showed to me that a foundation must be registered under a law which includes a trust... We never represented that the foundation is a registered body.

“It is our stand that there are seven trustees. You cannot equate that all the trustees are members of the foundation.”

Ansari further submitted that there is no evidence the foundation is an association of seven members and added the plaintiff is the initiator of the project and still has a interest in it.

Hence, Chong is suing as a person affected by the decision to stop work on the project, and added that if there is no trust or society, the plaintiff is suing as a promoter, as an individual whose interest has been affected by the decision taken by the four defendants.

Chong receives divine instructions

The case started on Jan 12 this year and the plaintiff has so far called three witnesses. The court has already fixed May 5 for the continuation of the trial.

musa aman pc in sabah 190608 01 Chong is suing Musa, former state secretary KY Mustafa, Local Government and Housing Ministry permanent secretary Ujang Sulani and the Kudat Town Board.

Chong is a member of the Kudat Moral Uplifting Society besides being chair of KTHCF which initiated the Mazu statue project in early 2005 after he (Chong) “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, in his capacity as the chairman of the KTHCF, initiated legal action on Feb 6 last year against the Sabah government for forcing work to halt on the construction of the statue despite a letter of approval from the Kudat Town Board dated Feb 8, 2006.

Earlier, on Oct 25, 2005, the Kudat Town Board’s executive officer Ariff Abdullah had approved plans for the statute.

Chong, in his suit, is 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.

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 – was 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, is valid.