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DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO: W-02(IM)(NCVC)-2140-12/2014

ANTARA

DATO’ SERI TH’NG BOON CHYE …PERAYU

DAN

1. YEOH GUAT LIM @ SHIRLEY

2. MAK YIN KWAI @ MAK CHOI YOON3. CHOY CHEE KUAN4. KWAN INN TENG FOUNDATION5. RHB BANK BERHAD …RESPONDEN-RESPONDEN

[DALAM MAHKAMAH TINGGI MALAYA DI KUALA LUMPUR(BAHAGIAN SIVIL)

[SAMAN PEMULA NO.: 24NCVC-1000-06/2013]

1. YEOH GUAT LIM@SHIRLEY2. MAK YIN KWAI@MAK CHOI YOON …PLAINTIF-PLAINTIF

DAN

1. CHOY CHEE KUAN2. KWAN INN TENG FOUNDATION3. RHB BANK BERHAD …DEFENDAN-DEFENDAN

PRESIDEN,PERTUBUHAN BUDDHIST MALAYSIA …BAKAL PENCELAH

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KORUM

ABDUL AZIZ BIN ABD RAHIM, JCA

ROHANA BINTI YUSUF, JCA

PRASAD SANDOSHAM ABRAHAM, JCA

GROUNDS OF JUDGMENT

[1]  We heard and disposed of this appeal on 20th April 2015 wherein

we dismissed the appeal with no order as to costs. We shall refer to the

respective parties as appellant and respondents.

BRIEF FACTS

[2]  One, Keng Hup @ Keng Ang, deceased, left a Will dated

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.

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[3]  Goh Kah Heng @ Shi Ming Yi resigned as a trustee vide A Deed

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

in his stead contrary to the expressed provisions that the trustees be

male and of the Caodong clan. The 1st and 2nd respondents are female

and not of the Caodong clan.

[5]  In the action (No. 32-1-2011) where the 3rd  respondent (1st 

Defendant) intervened herein in the High Court at Shah Alam, the

learned Judge handed down an order on 29.4.2011 that the 1st and 2nd 

respondents are not qualified as trustees as per the provision of the Will

of Keng Hup @ Keng Ang. The learned Judge requested the parties to

seek the appointment of suitable persons as trustees.

[6]  The proposed Intervener was informed of the predicament as to

the management of the Kwan Inn Teng Temple.

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THE APPLICATION

[7]  The proposed Intervener ( appellant ) is the President of the

Malaysian Buddhist Association ( MBA ). Kwan Inn Teng Temple is a

member of the MBA.

[8]  The 1st  and 2nd  respondents had instituted an action by way of

Originating Summons against the Defendants (3rd  to 5th  respondents)

herein seeking relief to inter alia, appoint the Trustee and Chief Abbot of

Kwan Inn Teng Temple. The position of the Trustee and Chief Abbot of

Kwan Inn Teng Temple had become vacant since the resignation of the

previous Trustee and Chief Abbot.

[9]  The application to intervene (End. 29) was made pursuant to Order

15 r 6 of the Rules of Court 2012. In his Notice of Application, the

appellant seeks to intervene in the present suit with an alleged interest

to play a part in the appointment of a trustee and management of Kwan

Inn Teng Temple.

FINDINGS OF THE COURT

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[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.

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(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.” 

The Privy Council in Pegang Mining Co Ltd Pegang Mining Co Ltd v

Choong Sam reported in [1969] 2 MLJ 52 on the test of an intervener to

be added as a party in a proceeding at p.56 of the report held:

“Will his rights against or liabilities to any party to the action in respect of

the subject matter of the action be directly affected by an order which may

be made in the action?” 

[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:

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(ii) In case of unresolved dispute, members may request the intervention

of the National Council, the State or Branch Committees to assist in the

resolution of the dispute.

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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of a dispute between members, intervention by the MBA can only be

done with the consent of the members. We now set out Clause 11(i)

below:-

Clause 11(i):

The Liaison Committee shall represent the Association on its relation with the

 public establish liaison between the Association and the Government, settle

disputes amongst members, and act as coordinating Officers amongst them...

[13]  The appointment of the Chief Abbot of the Temple is an internal

affair of the Temple which does not in any way affect the appellant. In

the absence of an express invitation from the Temple, the appellant has

no locus, relationship or direct legal interest to apply to intervene in this

proceeding. Therefore the appellant did not fall within the requirement

under O.15 r 6(2)(b)(ii) of RHC 2012 where the outcome of this

proceeding would not in any way affect his rights.

[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):

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“In determining whether a party may be added as an intervener, the test is

if his 'legal interests', ie  his right against or liabilities to any party to the

action in. respect of the subject matter of the action would be directly

affected by any order or judgment which might be made in the action....” 

We considered that the appellant, who had requested to intervene with

the main purpose to play a part in the appointment of trustee on the

management of Kwan Inn Teng Temple, would not affect his legal rights.

 And the constitution of the MBA does not allow the appellant to intervene

in the proceedings between the 1st  and 2nd  respondents with 3rd  to 5th 

respondents without a request or invitation or consent to do so.

[15]  The learned Judge was therefore right in exercising his discretion

to dismiss the appellant s application to intervene in the said suit. We

therefore dismiss the appeal accordingly.

Dated: 9th March 2016

Signed

[DATUK DR. PRASAD SANDOSHAM ABRAHAM]Judge

Court of Appeal MalaysiaPutrajaya

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Counsels for Appellant

Dato Malik Imtiaz,(with P Subramaniam & Pavendeep Singh)Messrs Sumarni & Associates

No. 28, Tingkat 1,Jalan Tan Sri Teh Ewe Lim11600 Pulau Pinang

Counsels for 1st & 2nd Respondent

Wong Rhen Yen(with S Raven)Messrs Anad & NorainiSuit 8.01, Level 8

Kotaraya Office TowerPlaza Kotaraya, Jalan sTrus81200 Johor Bahru

Counsels for 3rd Respondant

Loh Siew Cheang(with Kelvin Seet & Andrew Fernandez)Messrs S RavenesanNo. 54-2, Jalan TelawiBangsar Baru

59100 Kuala Lumpur

Cases Referred To:

1. Tohtunku Sdn Bhd v. Superace (M) Sdn Bhd [1992] 1 CLJ 344 (Rep);[1992] 2 CLJ 1153; [1992] 2 MLJ 63 (referred)

2. Pegang Mining Co Ltd Pegang Mining Co Ltd v Choong Sam [1969] 2 MLJ52 (referred)

Legislation Referred To:

1. Rules of Court the 20122. Constitution of the Malaysian Buddhist Association