Dato' Loo Son Yong v 1. ) Dato' Chua Chon Wee (WA-24NCvC-3494-08/2023)

DATO' CHUA CHON WEE

DATO' CHUA CHON WEE

LEE TENG KEE

YONG KOK WAH (NO. K/P.: 670405-10-6595) JUDGEMENT Introduction 1. The Plaintiff in this case filed an Origination Summons (“OS”) citing Order 7 of the Rules of Court 2012 and Education Act 1996 in the intitulement. 22/08/2024 09:34:53

The OS is to declare that the General Assembly of Sponsors held on 30/6/2022 to elect the Lembaga Pengelola Sekolah S. M Chung Hua is invalid and unconstitutional therefore be annulled and a new general assembly to be held for fresh election of the same.

The OS also sought the annulment of the election of the executive committee held on 13/7/2022 on the ground of being invalid and unconstitutional.

Further the OS asked for the cancellation of the victory of candidates Michael Khoo Poh Huat and Tan Yen Hooi to be annulled on the grounds of being a non-citizen and a bankrupt respectively. The brief facts 5. The facts as can be surmised in this are related to the Plaintiff’s grouses in respect of a meeting of the General Assembly of Sponsors of Klang Chung Hua High School (“ the school”) held on 30/6/2022 which elected 40 members of the Board of Governors from the sponsors (“GAS”) and the meeting of the Final Election held on 13/7/2022 which elected 16 members of the Executive Committee.

The Plaintiff who is one of the 40 members of GAS is dissatisfied that at the General assembly elections a non-citizen and a bankrupt had been elected as members which is against the provision of the law.

On the election of the Executive Committee the Plaintiff’s grievance is that 5 eligible members were not allowed to participate in the elections on 13/7/2022. OS defective 8. Even before going into the merits of the OS the Court ruled that the OS was defective as it did not specify the provision of law the Plaintiff was relying on in the intitulement. This is a major requirement under Order 7Rule 2 of the Rules.

Order 7 Rule 2 stipulates as follows:

Forms of originating summons (O. 7 r. 2)

Every originating summons shall be in Form 5 or 6 whichever is appropriate.

Every originating summons shall state in its intitulement any provision of these Rules and any provision of any written law under which the Court is being moved.

The party taking out an originating summons, other than an ex parte originating summons, shall be described as a plaintiff, and the other parties shall be described as defendants.

The party taking out an ex parte originating summons shall be described as the applicant.

The rational for this rule is to specify the actual provision of the written law the Plaintiff is relying on. The Plaintiff cannot just mention Education Act 1966 as he did in this case and expect the Court to determine the relevant provision relied upon on its own 11. The case of Malayan Banking Berhad V Koay Kang Chuwan & Anor [2010] 5 MLJ 46 is a decision which ruled that that the failure to include an intitulement is a defect which cannot be remedied 12. The Court agrees with the submissions of the Defendant that since the Plaintiff is seeking for declaration the non-mention of section 41 of the Specific Relief Act 1950 is fatal to this OS.

The Court also agrees that the provision of Order 7 Rule 3 (1) of the Rules should be complied with strictly. This provision provides as follows :

Contents of originating summons (O. 7 r. 3)

Every originating summons shall include a statement of the questions on which the plaintiff seeks the determination or direction of the Court or, as the case may be, a concise statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the plaintiff claims that relief or remedy.

In this case if the affidavit of the Plaintiff is perused there are no facts raising a cause of action against the 1st and 2nd Defendants and in fact their names are not even mentioned in the conduct of the General Assembly elections.

In the affidavit only the 3rd Defendant’s name is mentioned as the Chairman of the election but no particulars of any wrongdoing of the 3rd Defendant is mentioned apart from stating that the 3rd Defendant failed to stop the candidacy and election of non-eligible members. In the Court’s view there are not sufficient particulars to indicate negligence of the Defendants as stated by the Plaintiff.

For the elections of the executive committee in the Final election, the Plaintiff merely mentions that the 3 Defendant had prevented the 5 members form participating in the elections without giving any particulars.

In the submissions, although the Plaintiff’s counsel has in support of the OS relied on various provisions of the law, in the Court’s view it is too little too late. If the Court were to consider the Plaintiff’s submissions it would be legalizing the inherent defects in the OS. This attempt by the Plaintiff’s counsel to bolster the OS can be seen as an abuse of the clear cut provisions of the law. Conclusion 18. The defects in the OS and the lack of relevant facts and particulars are sufficient for the Court to dismiss the OS without needing to further consider the merits of the OS. Dated: 21.8.2024 sgd DATO’ HAJI AKHTAR BIN TAHIR Judge High Court of Malaya, Kuala Lumpur PARTIES For the Plaintiff: Nama Peguamcara: Wong Khai Pun; Keppy Wong Tetuan Keppy Wong & Assoc. No. 17B, 2nd Floor, Jalan 6/5, Pandan Indah Commercial Park, 55100 Kuala Lumpur For the Defendant: Nama Peguamcara: Cheong Yu Aik Tetuan Cheong Chambers Suite 33-01, 3rd Floor, Menara Keck Seng, 203, Jalan Bukit Bintang, 55100 Kuala Lumpur.