This IMPORTANT item is maintained here for records only, should the other post was removed.
http://www.malaysia-today.net/2008/content/view/2427/46/
WRIT OF SUMMONS
MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK
AT KOTA KINABALU
BETWEEN
TAN SRI CHONG KAH KIAT
suing as Chairman of the Kudat
Thean Hou Charitable Foundation …PLAINTIFF
AND
DATUK MUSA HJ AMAN …1st DEFENDANT
DATUK K Y MUSTAFA …2NDDEFENDANT
DATUK UJANG SULANI …3RDDEFENDANT
KUDAT TOWN BOARD …4THDEFENDANT
YANG AMAT ARIF TAN SRI DATUK SERI PANGLIMA RICHARD MALANJUM, P.S.M., S.P.S.K., S.S.A.P., S.I.M.P., S.P.D.K., P.G.D.K., CHIEF JUDGE OF THE HIGH COURT IN SABAH AND SARAWAK IN THE NAME AND ON BEHALF OF SERI PADUKA BAGINDA YANG DIPERTUAN AGONG.
To:-1. DATUK MUSA HAJI AMAN, Jalan Tuaran, Kota Kinabalu. 2. DATUK K Y MUSTAFA,Jln Saga, Likas, Kota Kinabalu.3. DATUK UJANG SULANI, Kg. Likas, Kota Kinabalu. 4. Kudat Town Board, Kudat, Sabah.
EXTRACT thereof
29. The Plaintiff avers that the issue of the letter of withdrawal was the culmination of moves which the 1st Defendant had initiated with the purpose of sabotaging the Project to construct the Statue out of malice towards the Plaintiff.
Particulars
(a) On or about 16. 5 .2006 a report was posted on the internet on the damage to the coral reefs at Sipadan Island caused by an unauthorised barge carrying construction materials. This incident caused worldwide condemnation including an open rebuke by the Right Honourable Prime Minister. The 1st Defendant attempted to shift the blame onto the Sabah Parks. As the State Minister then in charge of the Sabah Parks the Plaintiff defended the officers and officials managing the Parks by publicly revealing on 18.5.2006 that the contract which amounted to more than RM 5 million, was not awarded by his Ministry but by the Ministry of Finance without calling for any tender. This caused the 1st Defendant who was also the State Minister of Finance to retaliate against the Plaintiff by directing the 4th Defendant through the State Minister of Local Government and Housing to issue the order to stop works refered to under paragraph 15 hereof;
(b) Before the abovementioned incident aforementioned, the Plaintiff in his capacity as the State Minister in charge of Tourism, Culture and Enviroment had on a number of occasions taken issue with the 1st Defendant over his action as the State Minister of Finance in awarding contracts within the purview of the Plaintiff's ministry without tender or first informing the Plaintiff . The awards relate to more than 100 contracts at a total value in excess of RM 60 million and included the contract referred to in item (a) above of these particulars;
WE COMMAND you that within 10 days after the service of this Writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you at the suit of Tan Sri Chong Kah Kiat of Taman Chin Sang, Jalan Tuaran, Kota Kinabalu, Sabah. Take notice that in default of you so the doing the Plaintiffs may proceed therein the judgment and execution.
WITNESS GABRIEL GUMIS HUMEN, Registrar of the High Court in Sabah and Sarawak the day of 2008.
……………………………… …..………………………………
Messrs Ansari & Co. Deputy Registrar
Plaintiff Solicitors High Court of Sabah And Sarawak
At Kota Kinabalu.
Memorandum to be subscribed on the Writ
This Writ may not be served more than six (6) calender months after the above date unless renewed by order of Court.
The Defendant (or Defendants) may appear hereto by entering an appearance (or appearances) either personally or by an advocate at the Registry of the High Court.
A Defendant appearing personally may, if he desires, enter his appearance by post, and the appropriate forms may be obtained by sending a postal order for RM 10.00 with an addressed envelope to the Deputy Registrar, High Court at Kota Kinabalu, Sabah.
STATEMENT OF CLAIM
1. The Plaintiff is a member of the Sabah State Legislative Assembly and was at all material times a member of the Sabah State Cabinet and presently resides at Taman Chin Sang, Jalan Tuaran, Kota Kinabalu in the State of Sabah, Malaysia. He is suing in his capacity as the Chairman of the Kudat Thean Hou Charitable Foundation ("the Foundation").
2. The 1st Defendant was at all material times the Chief Minister of Sabah and the Chairman of UMNO liason committee for Sabah.
3. The 2nd Defendant was at all material times the State Secretary for Sabah.
4. The 3rd Defendant was at all material times the Permanent Secretary of the State Ministry of Local Government and Housing and also the Chairman of the Central Town and Country Planning Board established under the Town and Country Planning Ordinance (Sabah Cap 141). The Town and Country Planning Department and the 4th Defendant were under the control and direction of the said Ministry.
5. The 4th Defendant was at all material times the Local Authority for Kudat established under the Local Government Ordinance, 1961 (Sabah Cap 11 of 1961).
6. The protem committee of the Foundation was established in early 2005, inter alia, to take charge of the construction of a statue of the Deity Thean Hou popularly known as the Goddess of the Sea ("the Project") on a piece of private land situated in the town of Kudat, Sabah. The statue was to be constructed on a portion of private land measuring more or less two and three tenths (2.3) acres held under Town Lease No 057505754 ("the Site"). Initially the Project included the construction of a temple on the Site but this was later abandoned. The Project was estimated to cost the Foundation five million Ringgit.
7. The Foundation appointed TPM Konsultant Sdn Bhd (Company No 295802-X) as the technical and project management consultant ("the Consultants") for the Project.
8. On 8.8.2005 the Consultants, acting on behalf of the Foundation submitted to the 4th Defendant the site layout plan and building plans in respect of the Project, together with a letter of consent from the registered owner of the land, and a copy of the land title.
9. The site layout plan and building plans were approved by the 4th Defendant on 25.10.2005 after it had been informed by the Town and Country Planning Department, by letter dated 10.10.2005 that the said Department had no objection to the Project or the Site.
10. On 29.12.2005 the Foundation held a ground breaking ceremony for the Project, which was attended by, among others, the local member of Parliament the Honourable Datuk Rahim Bakri and the Deputy Speaker of Dewan Rakyat the Honourable Dato Lim Chee Cheng.
11. On 8.2.2006 the 4th Defendant issued a letter of approval for the project which was valid for two years and the Foundation duly paid the requisite fees for submission and approval of the plans on the following day.
12. The Foundation thereafter commenced works on the Project including massive piling works and the construction of a 20 feet platform, which was completed five months later at a cost of over one million Ringgit.
13. The necessary preparations for executing the Project were made including placing order for granite carvings of the statue with craftsmen in the People's Republic of China. The granite carvings totalling some 408 crafted granite pieces were completed and shipped to Kota Kinabalu in 21 shipping containers which are now placed at a containers yard.
14. On 23.5.2006 the Immigration Department at Kota Kinabalu issued letters of approval for visas to be issued to 13 craftsmen from China who would come over under the employment of the Foundation to assemble the granite carvings of the statue.
15. Without any reason given thereafter, the Executive Secretary of the 4th Defendant issued a letter to the Plaintiff on 25.5.2006 ordering that the construction works of the statue be stopped pending approval and further directive from the 1st Defendant.
16. By letter dated 6.6.2006 the 3rd Defendant wrote to the 4th Defendant directing that the construction works on the Project be stopped pending the approval of the 1st Defendant being obtained. The letter whose heading wrongfully described the Project site as being near the Asy-Syarikin mosque, Kudat, gave as the reason for the directive that there were objections made by various quarters to the statue being constructed on the project site.
17. On 23.6.2006 the 2nd Defendant wrote to the 4th Defendant stating that the State Government of Sabah after taking into account all matters resolved that construction works on the statue be stopped with immediate effect. The Plaintiff was not aware of such a decision having been made by the State Cabinet.
18. Attempts by the Plaintiff to get the 1st Defendant to allow works on the Project to continue to completion failed.
19. The Plaintiff had also on 29.06.2006 and 21.07.2006 respectively wrote letters to his former colleague in the Prime Minister's Department, the Honourable Dato Seri Mohd Nazri Abdul Aziz seeking his assistance to bring the plight of the Foundation to the Right Honourable Prime Minister. The Plaintiff hoped that the Right Honourable Prime Minister being the head of the National Front (Barisan Nasional) Malaysia, a tolerant and fair leader, and the proponent of "Islam Hadhari" or "Progressive Islam" would intervene and allow for the resumption of the construction works of the statue.
20. On 28.07.2006 the office of the 2nd Defendant extended to the 3rd and 4th Defendants a letter purportedly containing a "fatwa" issued by the Mufti of Sabah on 7.7.2006. The said "fatwa" addressed to the 1st Defendant specifically directed that the construction works on the statue be stopped as it was contrary to Islamic teachings.
21. Having regard to the constitutional guarantee given to the right to freedom of religion by the Federal Constitution, the parochial view taken by the Mufti of Sabah was disappointing and his advice that the construction of the statue would offend Islam and should be stopped caused much distress, anxiety and hurt to the Plaintiff and members of the Foundation. It was also against the principle of respect and tolerance for other cultures and religions that was being preached by the Right Honourable the Prime Minister under "Islam Hadhari".
22. Approaches made by the Plaintiff to various persons of high office with a view of finding an amicable solution to the problems that seemed to have suddenly arisen after the construction works on the statue had commenced met with no useful response.These approaches include writing :-
letters dated 15.08.2006, 16.11.2006, 14.05.2007, 04.06.2007 and 18.10.2007 addressed to the Right Honourable Prime Minister Dato' Seri Abdullah Hj Ahmad Badawi ;
letters dated 19.09.2006 and 27.10.2006 addressed to the Right Honourable Deputy Prime Minister Dato' Seri Mohd Najib Tun Hj Abdul Razak ;
(c) letters dated 26.07.2006 and 27.10.2006 addressed to the Honourable Minister of Rural Development Dato' Seri Abdul Aziz bin Shamsuddin;
letters dated 27.10.2006 and 11.5.2007 addressed to Tan Sri Abdul Hamid Othman the advisor on religious affairs to the Right Honourable Prime Minister;
(e) another letter dated 12.12.2006 addressed to the Honourable Dato Seri Mohd Nazri Abdul Aziz Minister in the Prime Minister's Department ;
(f) letter dated 26.02.2007 addressed to the 1stDefendant; and
(g) letter dated 10.05.2007 addressed to the former Deputy Chief Minister and current Member of Parliament the Honourable Datuk Seri Panglima Abdul Ghapur bin Hj Salleh.
23. In spite of the various attempts made by the Plaintiff to get him to reconsider the position taken by the Sabah State Government, the 1st Defendant continued to refuse to allow the construction works on the statue to recommence.
24. On 13.4.07 the Plaintiff tendered his resignation as a member of the Sabah State Cabinet.
25. Subsequent thereto the Secretary of the Sabah State UMNO Liason Committee issued a directive to all UMNO branches and divisions including its women, youth and "puteri" wings in Sabah to pass a motion during their respective annual general meetings to support the decision of the 1st Defendant and the State Government that the Project be relocated elsewhere.
26. On 14.05.2007 the Plaintiff lodged a police report at the Kota Kinabalu Police Station against the 1st Defendant and the Secretary of the Sabah State UMNO Liason Committee who was also a Deputy Chief Minister for deliberately trying to fan up and incite hatred against the Plaintiff and members of the Foundation. The Plaintiff shall refer to the contents of the police report no KK/001864/07 during the trial of this action.
27. On 15.11.2007 the 4th Defendant at the behest of the 1st and 3rd Defendants unlawfully issued a letter to the Consultants for the Foundation withdrawing the approval of the site layout plan purportedly on the ground of non-compliance of Section 15 of the Town and Country Planning Ordinance, an issue which had never been raised during the last 20 months since the initial order to suspend work was issued.
28. The letter of withdrawal was issued male fide and based on an afterthought. It was also ultra vires the Local Government Ordinance and the Town and Country Planning Ordinance.Its validity is being challenged by the Plaintiff in the High Court of Sabah and Sarawak at Kota Kinabalu pursuant to section 16 of the Town and Country Planning Ordinance (Sabah Cap 141).
29. The Plaintiff avers that the issue of the letter of withdrawal was the culmination of moves which the 1st Defendant had initiated with the purpose of sabotaging the Project to construct the Statue out of malice towards the Plaintiff.
Particulars
On or about 16. 5 .2006 a report was posted on the internet on the damage to the coral reefs at Sipadan Island caused by an unauthorised barge carrying construction materials. This incident caused worldwide condemnation including an open rebuke by the Right Honourable Prime Minister. The 1st Defendant attempted to shift the blame onto the Sabah Parks. As the State Minister then in charge of the Sabah Parks the Plaintiff defended the officers and officials managing the Parks by publicly revealing on 18.5.2006 that the contract which amounted to more than RM 5 million, was not awarded by his Ministry but by the Ministry of Finance without calling for any tender. This caused the 1st Defendant who was also the State Minister of Finance to retaliate against the Plaintiff by directing the 4th Defendant through the State Minister of Local Government and Housing to issue the order to stop works refered to under paragraph 15 hereof;
(b) Before the abovementioned incident aforementioned, the Plaintiff in his capacity as the State Minister in charge of Tourism, Culture and Enviroment had on a number of occasions taken issue with the 1st Defendant over his action as the State Minister of Finance in awarding contracts within the purview of the Plaintiff's ministry without tender or first informing the Plaintiff . The awards relate to more than 100 contracts at a total value in excess of RM 60 million and included the contract referred to in item (a) above of these particulars;
(c) On 3.4.2007 the 1st Defendant summoned the Plaintiff to the Chief Minister's office for a meeting after the Federal Government had rejected a proposal to privatise the management of Sipadan island for 25 years, and eventually of Mabul, Kapalai and Ligitan islands off Semporna by a private company. During that meeting the 1st Defendant accused the Plaintiff of conspiring with the member of Parliament for Semporna to frustrate the said privitasation from being approved by the Federal Government. The 1st Defendant then informed the Plaintiff that his appeal on behalf of the Foundation dated 26.2.2007 rejected;
(d) When the 1st Defendant thereafter used his position as the State UMNO Liason Committee Chairman to improperly garner political support for his decision the Plaintiff lodged the police report referred to in paragraph 26 hereof. This caused the 1st Defendant to be even more spiteful towards the Plaintiff;
(e) Using his position as the State Chief Minister, the 1st Defendant prevailed upon the State Mufti to issue the "fatwa" referred to in paragraphs 19 and and 20 hereof in spite of the fact that the construction of the Project does not involve any government funds or resources nor any Islamic issues since the Site was not at all near the Asy-Syarikin mosque, Kudat as alleged by the 3rd Defendant in paragraph 16 hereof;
(f) On 8.11.2007 the Right Honourable Prime Minister held a breakfast meeting with the Right Honourable Deputy Prime Minister and two senior UMNO leaders from Sabah the Honourable Dato Seri Panglima Mohd Salleh bin Tun Said and the Honourable Dato Seri Panglima Abdul Ghapur bin Hj Salleh during the UMNO Annual General Assembly specifically to deliberate on the Plaintiff's appeal against the order to stop work on the statue. At that meeting the Right Honourable Prime Minister decided that the "fatwa" be withdrawn and works on the statue be allowed to resume at the original site as approved and that he would called the Plaintiff and convey the decision personally; and
(g) The Right Honourable Prime Minister then informed the Plaintiff on 14.11.2007 at a meeting at the Prime Minister's office that he had instructed the 1st Defendant to advise the State Mufti to withdraw the said "fatwa". The Right Honourable Prime Minister assured the Plaintiff that once the fatwa is withdrawn works on the statue at the original site can be resumed as originally approved by the 4th Defendant. The 1st Defendant out of spite against the Plaintiff openly defied the Right Honourable Prime Minister's directive by causing the 3rd and 4th Defendants to issue the letter of withdrawal of approval on the very next day being the 15.11.2007.
30. The actions of the 1st Defendant hereinbefore mentioned infringe upon the constitutional rights of the Plaintiff and members of the Foundation to the freedom of religion as guaranteed under Article 11 of the Federal Constitution.
31. The moves initiated by the 1st Defendant to stop construction works on the Project and ultimately to withdraw the approval already granted by the letter dated 25.10.2005 (referred to in paragraph 9 hereof) constituted a blatant abuse by the 1st Defendant of his powers and the various orders and directives hereinbefore referred to were issued ultra vires the Local Government Ordinance and the Town and Country Planning Ordinance.
32. Further and or in the alternative the Plaintiff state that the actions of the 2nd, 3rd and 4th Defendants were ultra vires the Local Government Ordinance and the Town and Country Planning Ordinance as they had acted under the dictation of the 1st Defendant and without judicially excercising their respective powers and discretions.
Further and or in the alternative the Plaintiff state that all the letters of stoppage and withdrawal of approval dated 15.11.2007 were issued in bad faith and in breach of the rules of natural justice , in that neither the Plaintiff nor any of the members of the Foundation was afforded any opportunity to be heard.
The Plaintiff and members of the Foundation were entitled to presume that the 4th Defendant,when granting the approval for the Project, had obtained the views and agreement of all affected authorities and was entitled to the legitimate expectation that the approval would not be subsequently withdrawn in breach of natural justice.
By reasons of the aforesaid acts and or omissions by the Defendants, the Plaintiffs suffers loss and damages
Particulars of Special Damages
(a) cost of repairing damage to the completed platform due to the corrosion or otherwise caused by the delay to complete the Project consequent upon the order to stop work;
(b) storage costs of the shipping containers at the containers yard (mentioned in paragraph 13 hereof) at RM 10,000.00 a month; and
(c) additional costs of insurance, transport, labour , building materials and other costs, which the Foundation may have had, or continue to incur as a result of the delay caused to the completion of the Project.
Wherefore the Plaintiff claims :-
a declaration that the "fatwa" issued by the State Mufti is unconstitutional as infringing upon Article 11 of the Federal Constitution;
a declaration that the letter of approval dated 8.2.2006 issued by the 4th Defendant is valid ;
a declaration that the letter of withdrawal of approval dated 15.11.2007 issued by the 4th Defendant is null and void ;
a declaration that the 1st Defendant had, in giving directions and orders to the other Defendants (as hereinbefore referred to) acted male 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;
general damages ;
such further or other relief and/or order that this honourable court deems fit and just;
such consequential orders as may be appropriate and proper; and;
costs for two counsel be awarded to the Plaintiff against the Defendants
Dated this 5th day of February 2008
……………………………………..
Messrs Ansari & Co.
Advocates for the Plaintiff
MALAYSIA
IN THE HIGH COURT OF SABAH AND SARAWAK
AT KOTA KINABALU
SUIT NO.K OF 2008
BETWEEN
TAN SRI CHONG KAH KIAT
suing as Chairman of the Kudat
Thean Hou Charitable Foundation …PLAINTIFF
AND
DATUK MUSA HJ AMAN …1st DEFENDANT
DATUK K Y MUSTAFA …2NDDEFENDANT
DATUK UJANG SULANI …3RD DEFENDANT
KUDAT TOWN BOARD …4THDEFENDANT
****************************************************
WRIT OF SUMMONS
******************************************************
Messrs Ansari & Co.,
Lot 10-1, 1st Floor,
Lorong Lintas Plaza 3,
Lintas Plaza Luyang,
88300 Kota Kinabalu.
Tel No. 088-214826
Fax No. 088-264826
Ref No. AAA-2007-1030
FILED THIS 5TH DAY OF FEBRUARY 2008
