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W 02 (Im) (NCVC) 2140 12 2014 PDF
W 02 (Im) (NCVC) 2140 12 2014 PDF
PERAYU
DAN
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PLAINTIF-PLAINTIF
DAN
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PRESIDEN,
PERTUBUHAN BUDDHIST MALAYSIA
BAKAL PENCELAH
KORUM
ABDUL AZIZ BIN ABD RAHIM, JCA
ROHANA BINTI YUSUF, JCA
PRASAD SANDOSHAM ABRAHAM, JCA
GROUNDS OF JUDGMENT
[1]
BRIEF FACTS
[2]
13.6.1999 (the said Will) appointing the 1st and 2nd respondents
(plaintiffs in the High Court proceedings) as executrix and one, Goh Kah
Heng @ Shi Ming Yi (a Singaporean) as executor and trustee of, among
others, a Buddhist Temple called Kwan In Teng (KIT). They were given
specific and distinct tasks in the Will. The requirement of the said Will is
that the trustee must be a male of the Caodong clan.
[3]
to Provide for the resignation of Goh Kah Heng Shi Ming Yi dated
24.11.2011.
[4]
Goh Kah Heng appointed the 1st and 2nd respondents as trustees
[5]
[6]
THE APPLICATION
[7]
[8]
[9]
[10] For the President of MBA to intervene, he has to show that his
rights against or liabilities to any party to an action be directly affected by
any order made by this court. Order 15 rule 6 of the Rules of Court 2012
provides the rule for the parties to intervene which we set out as below:6. Misjoinder and non-joinder of parties (O. 15 r. 6)
(1) A cause or matter shall not be defeated by reason of the misjoinder or
non-joinder of any party, and the Court may in any cause or matter
determine the issues or questions in dispute so far as they affect the rights
and interests of the persons who are parties to the cause or matter.
(2) Subject to this rule, at any stage of the proceedings in any cause or
matter, the Court may on such terms as it thinks just and either of its own
motion or on application(a) order any person who has been improperly or unnecessarily made a
party or who has for any reason ceased to be a proper or necessary party,
to cease to be a party;
(b) order any of the following persons to be added as a party, namely(i) any person who ought to have been joined as a party or whose
presence before the Court is necessary to ensure that all matters in
dispute in the cause or matter may be effectually and completely
determined and adjudicated upon; or
(ii) any person between whom and any party to the cause or matter there
may exist a question or issue arising out of or relating to or connected with
any relief or remedy claimed in the cause or matter which, in the opinion of
the Court, would be just and convenient to determine as between him and
that party as well as between the parties to the cause or matter.
(3) An application by any person for an order under paragraph (2) adding
him as a party shall, except with the leave of the Court, be supported by
an affidavit showing his interest in the matters in dispute in the cause or
matter or, as the case may be, the question or issue to be determined as
between him and any party to the cause or matter.
(4) A person shall not be added as a plaintiff without his consent signified
in writing or in such other manner as may be authorized.
[11] In our present case, the respondents contended that the appellant
had no locus standi to intervene in respect of the management of the
Kwang Inn Teng Temple because the constitution of the MBA did not
allow the appellant to intervene in the proceedings without a request or
invitation or consent to do so. Clause 5(f)(ii) and 25(b) of the Constitution
of the MBA (Constitution) is set out below for ease of reference:Clause 5(f)(ii):
The rights of the members shall be as follows:
(ii)
Clause 25(b):
The MBA may appoint bhikkhu or bhikkhuni to take over the management of
any temple or nunnery facing difficulties if invited by the management of the
said temple or nunnery.
[12] Pursuant to Clause 5(f)(ii) and 25(b) of the Constitution of the MBA
(Constitution), the President of the MBA does not have a legal interest
in the resolution of any dispute or management of any temple until and
unless a request or invitation by member is made to the MBA. In this
case, neither Kwan Inn Teng Temple nor the other parties involved in
the dispute had made a request or invitation to the MBA to resolve the
appointment of trustee or to take over the management of Kwan Inn
Teng Temple. As a matter of fact, the Dharma Protector Group and the
Sangha Group of Kwan Inn Teng Temple had written to the President of
the MBA on 23.7.2013 and 27.7.2013 (see pg. 255-256 of the Appeal
Record Part C) respectively requesting the latter to refrain from
interfering with the internal affairs of the temple. Further, Clause 11(i) of
the Constitution only empowers the Liaison Committee of the MBA to
settle disputes amongst members, but not to settle a dispute within the
member organisation internally, as in the present case. Even in the case
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[14] In the case of Tohtunku Sdn Bhd v. Superace (M) Sdn Bhd
[1992] 1 CLJ 344 (Rep); [1992] 2 CLJ 1153; [1992] 2 MLJ 63 the
Supreme Court laid down the test in determining whether a party may be
added as intervener, that is, to determine whether 'his legal interest'
would be directly affected by any order or judgment which might be
made and where it was held as follows (at pg 63):
[15] The learned Judge was therefore right in exercising his discretion
to dismiss the appellants application to intervene in the said suit. We
therefore dismiss the appeal accordingly.
Signed
[DATUK DR. PRASAD SANDOSHAM ABRAHAM]
Judge
Court of Appeal Malaysia
Putrajaya
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