297. Case against Lapok dismissed

 

 

Suit against Anglican Bishop dismissed  (Daily Express 6 March 2014) as per enclosure “JK-1”

Kota Kinabalu: Sabah Anglican Church Chancellor Datuk Stephen Foo refused to comment on the legal case brought by some disgruntled Anglican parishioners against the Sabah Anglican  Bishop, when asked by Daily Express.

High Court Judicial Commissioner Azhahari Kamali Bin Ramli recently dismissed an Originating Summons brought by Clarence Fu Tze Kong and others against the House of Bishops of the Province of the Anglican Church in South East Asia based in Kuching presided by Sarawak Archbishop  Datuk Bolly Lapok, a native of Sarawak with costs RM15,000 awarded to the Defendant.

“Christians should not resort to legal action as stated in the Bible. A lot of accusations as published were hearsay.

“The freedom of speech includes the freedom not to say or publish anything,” say Foo, a former State Attorney General.

Former state Attorney-General Roderick Fernandez of Messrs Shelley Yap appeared for the Plaintiffs while Ronny Cham of Messrs Ronny Cham & Co appeared for the Bishop.

The Plaintiffs brought their application by way of an originating summons dated August 30, 2013 for an order that the Defendant disclose or produce to the Plaintiff and file in Court a copy of the complete Report and Recommendation of the Provincial Advisory Committee dated August 27, 2012 in relation to the complaints against Bishop Albert Vun Cheong Fui, the Bishop of the Anglican Diocese of Sabah.

Secondly, to order the Defendant to comply with Article IV (h) and Regulation B of the Constitution 12 of the Province of the Anglican Church in South East Asia by referring the complaints against Bishop Albert Vun Cheong Fui, the Bishop of the Anglican Diocese of Sabah to the Ecclesiastical Court to be convene for the purpose of determining his removal or otherwise , within 30 days from the date of the order or within which such other period  as the Court shall deemed fit.

It was contended by the Plaintiff that he together with (3) other Anglican C hurch members made certain complaints against Bishop Albert Vun Cheong Gui to the Defendant.  An inquiry was subsequently held by the Defendant and after hearing all parties concerned, the Defendant decided not to dismiss the complaints but instead directed further investigation to be carried out in accordance with Regulation B of the Provincial Constitution whereby a three (3) members Provincial Advisory Committee (PAC) was established to investigate the complaints.

The Plaintiff contended that the PAC found that there is a strong and compelling case for Bishop Albert Vun to answer but nevertheless the Defendant refused to carry out their constitutional duty and responsibility to refer the complaint to the Ecclesiastical Court to be convened for the purpose of determining the removal or otherwise of Bishop Albert Vun as provided in para 3, Regulation B of the Provincial Constitution.

The Plaintiff also submit, that they have requested the full report and Recommendations made by the PAC on August 27, 2012 from the Defendant but the Defendant had only forwarded the Report excluding the recommendations.

In opposing this application the Defendant has raised the following issues:-

(1)    Defendant is not a legal entity.

(2)    Whether the plaintiff can bring this application under O.15 r. 12 of the ROC 2012.

(3)    Res Judicata

(4)      Whether this court has the jurisdiction of to grant the orders sought for.

High Court Judicial Commissioner Azhahari Kamali Bin Ramli ruled that:

“Having considered the application, the affidavit evidence and the written submission filed by both parties, I am of the opinion that there is no merit in this application.

“Among others, I am of the view that the Defendant has been wrongly named in this application.  It is not disputed that the House of Bishops of the Province of the Anglican in South East Asia is not a legal entity under our law.

“It was created by under Article III of Canterbury Primate of all England and Metropolitan via a “Deed of Relinquishment” dated February 2, 1996.  It is not a registered society under the Society Act 1966.  The Plaintiff did not dispute this fact but argued that Datuk Bolly Lapok, being a natural person and has been named as a party in this application is properly presented before this Court.

“I am of the opinion that since the House of Bishops of the Province of the Anglican Church in South East Asia  is not a legal entity it follows that they could not be named as a party.

“Even though Datuk Bolly Lapok has been brought in as a party it does not  change the legal standing of the said House of Bishops as a non entity under the law.  By implication Datuk Bolly Lapok is a non-entity to this matter and as such he has properly brought into this application.  The case of Chin Mee Keong & ors v. Pesuruhanjaya Sukan [2007] MLJ 193 cited by the Plaintiff is clearly distinguishable because in that case there is a already a registered society with its legal entity and the appellant therein were the officer bearer of the society.

“On this ground alone I am of the opinion that the Plaintiff’s application should be dismissed and I so order.”

In an earlier suit, One Anglican parishioner Joshua Kong unsuccessfully sued the Sabah Bishop.  In Asia Commercial Finance (M) Sdn. Bhd. V Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783, the Federal Court state as follows:

“What is res judicata?  It simply means a matter adjudged, and its significance lies in its effect of creating an estoppel per rem judicature.

When a matter between two parties has been adjudicated by a Court of competent jurisdiction, the parties and their privies are not permitted  to litigate once  more the res judicata, because the judgement becomes the truth between such parties, or in other words, the parties should accept it as the truth; res judicata pro veritate accipitur.

`

The public policy of this law is that it is in the public interest that there should be finality in litigation – interest rei publicae ut sit finis litium.  It is only just that no one ought to be vexed twice for the same cause of action – nemo debet bis vexari pro eadem causa.

Both maxims are the rationale for the doctrine of res judicata, but the earlier maxim has the further elevated status of a question of public policy.”

Supporters of the Plaintiffs contributed to the with a senior citizen pledging RM2,000 and even a Singaporean offering RM500, saying that he wanted to help as he likened the case to that of the City Harvest Church trial in Singapore. 

3.1             One reader responded as follows:-

Church members divided over stand of Anglican Archbishop  Daily Express  Sunday March 16, 2014.

I refer to “Suit Against Anglican Bishop Dismissed” (DE 6.3.2014)

In para. 1 of the article it is mentioned that the Suit was against the Sabah Anglican Bishop.  The Defendant is not the Sabah Anglican Bishop but the Archbishop of the Province of the Anglican Church in South East Asia, Archbishop Bolly Lapok who is the Head of the Province.

This can be deduced from para. 14 & 15 of the report which mentioned Archbishop Bolly Lapok being named as a party.

The Sabah Anglican Bishop was never named as a Defendant although in this Suit he was the subject matter.  I believe this was done on purpose to raise the issue of “Res judicata” to convey the message that the Anglican Bishop of Sabah, Datuk Albert Vun was previously sued and therefore cannot be sued again.

The case was dismissed only because of an anomaly as the old colonial law requires any case brought against the church to be referred to the State Secretary first.  However the State Secretary following the formation of Malaysia have all been Muslims. [truncated]. 

 

 

 

 

With a Constitution, APSEA is a legal entity- PERIOD.  Joshua

 

0 comments  (thetruthasc.wordpress,com)

January 31, 2014 - 8:52 pm joshuakong823

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The House Of Bishops Of The Province Of The Anglican Church In South East Asia (APSEA) is defined in Article III of the Constitution of APSEA.
I hope some Constitutional lawyers would come here to share their views to straighten everything.
It is accepted for three early churches in North Borneo namely RC, BCCM and Anglican be self regulated hence they can be sued and sue in normal business. Bishop of Sabah and ADOS had been to Courts over land matters and lost it. If ADOS & Bishop could not be taken to High Courts, then how can it is lost. Maybe our Diocesan Chancellor can clarify this. The three churches and other NGOs registered under the Society Act are legal entities and the only difference is about the registration under the Society Act for the three churches.
If HoBs of APSEA with a legal Constitution is non legal entity, then Bishop of Sabah is also non legal entity but in my case against Bishop of Sabah, I and another plaintiff need to obtain consent from the State AG under Government Proceeding Act for a religious institution to proceed with the said locus standi. At that time, the non legal entity was not an issue, and now if HoBs of APSEA is non legal entity, then how would we proceed to sue the Bishop of Sabah for his crimes. Would someone now give views to clear the endless confusion possibly arising from the civil courts?
So on that understanding, no one without legal entity like a partnership of persons cannot sue but a limited company can sue and be sued as a person can. The persons in a partnership can sue and be sued individually. HOBs of APSEA is neither a partnership nor a limited company or corporation but a body with self regulated Constitution, hence a legal entity by virtue of that Constitution. Is this argument acceptable and maybe the Judge was not guided in this aspect in the proper prospective.
In the same vein, non legal entity like a partnership can still do a lot of things and cannot be selective when litigation arises for the acts of the partnership.
We need to review the confusion from the latest Court’s decision on HoB.

We all want solution to this too prolonged BISHOPGATE and so we need to resolve our focus and unity to reach what we have started to do and that is to remove the Bishop and then revamp the ADOS.

So we need to meet as a group of say 20 persons and discuss our fresh strategies and then move on.  We also don't have much time to do that in view of the possible Appeal within 30 days.

I hope we can have a few willing and concerned lawyers to re-look this case.

Please get in touch as the Lord touches you, and my handphone is 6013-8394513

 

 

January 30, 2014 - 7:09 pm joshuakong823

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Dear Dr Richard,
AVCF is unfortunately the yeast of the ADOS and beyond and the Anglican churches may have temporarily lost its focus for a purpose yet to be known. Whilst Anglican churches under APSEA maybe declared not legal entity and if the case goes to Appeal, then better not to release the PAC’s report which contained 38 of 40 allegations as proven AVCF as “guilty”. If that PAC’s report is released, it may prejudice the Appeal process.
There are enough substance to the legal entity of HoBs as its power was devolved on it when the Archbishop of Canterbury transfer its power to HoBs/APSEA as it was detailed by the same legal counsel in my case.
So our legal entity is inherited by the Archbishop of APSEA.

If the Province of South East Asia is not a legal identity, then we as Anglican members are members of an illegal organisation subject to the full force of the law?

If it is not the Civil Court to clear this claim, who else?  Maybe the defendants should also include the Anglican Province of South East Asia and like my case it was sort of "wrong party".

So it is worth to go forward to Appeal Court to resolve a Constitutional issue which can be very expensive in term of legal advisors.  ADOS & ASC would need to draw on the International fraternity on Constitutional issue but we need to consider the concession of the churches who were established much earlier to be self regulatory. 

 

 

 

January 30, 2014 - 1:02 am joshuakong823

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Other areas of substance over form – the appointment of AVCF by Archbishop of SEA Province instead of Archbishop of Canterbury as per instrument of trusteeship; If AoC could be the legal entity to appoint Bishop of Sabah in an enactment for trusteeship, then HoB is also a legal entity by the power in exercise within the framework of the Anglican church. This area of argument was put forward by AVCF via his counsel in my own case. So it would appear a contradiction of sort by the same legal counsel for a similar context. We should all study this case in more exposure. I think legal entity is not limited to person or a corporate body but such legal entity is extended to other persons like formerly the President of municipal council cannot be sued but now the Mayor of KK is also being sued in civil courts. Any explanation for this observation?



Latest: http://thetrutheng.com/2014/01/29/anglican-province-of-south-east-asia-in-constitutional-crisis/comment-page-1/#comment-9434

Quote:  "dismissed the application on the sole ground that the HoB is not a legal entity and so cannot be sued. "   what a tragic day for ADOS and Anglican members in Sabah and beyond.

I wonder how many days did the learned lawyers study the Constitution of the Province.  Lets get back to the drawing board to move forward in an Appeal if considered safe.

What are the setbacks right now ---
the Province Constitution is not comprehensive enough to stand the test of the civll court and so no excuse to set aside the case against HOB.
They may not be enough case laws on bishops handling such legal case here and elsewhere.  Hence the Judge lack precedents to give proper justice.
I wonder how many relevant cases have been forwarded by lawyers on both sides in the legal papers presented by both sides.  That is a set back.

The appeal can only be justified if substance is more important than form.
I think there are enough instances of substance over form to deal with the inadequacies of the Province Constitution.  Did the plaintiff's lawyers give proper sight of such substance  over form?

Just take an example if the same argument be accepted then Bishop of Sabah could sue the HoB for conducting an investigation (deemed illegal) of the complaints of the 5 based on the non legal entity of the HoB.  Since AVCF did not sue the HoBs, then it is an after thought for the defence to put forward such argument to misplace justice when it is proper and due.

I think there are other instances of substance over form when the Constitution of the Province (as inadequacy noted) but recognised by AVCF prior to his appointment of the HoBs and why now HoB want to claim lack of entity in a court of law.  HoB as a living entity could appoint a living person as Bishop of Sabah in 2005/2006 hence should be deemed to hold out such legal entity in a court of law.

Many other senior clergy including Bishops had been charged in the civil court of laws elsewhere if we only care to do a research in the Internet and case laws of churches in Civil and criminal Courts.

In the pursuit of my own case in July, 2013, I could not expose my case as it was an Anton Pillar case where secrecy in modus operandi was desirable as advised by my legal counsel but it  fell due to lack of locus standing under the Government Proceeding Act which need the consent of the AG to proceed in a civil court.  Actually the appointment of AVCF as a sole trustee of the ADOS was illegal from the outset and the TYT with the advice of the State AG should take AVCF to task hence AVCF could be removed as a sole trustee. 

Also in the pursuit of the my own case, I spent almost 9 full months into that case.

So we need to work harder in TOTAL unity to resolve the BISHOPGATE which is a shame to the Anglicans too long to be tolerated. 



I have studied the three Constitutions of the Anglican Province of South East Asia, the Anglican Diocesan Constitution and the All Saints Cathedral's constitution and I found them incoherent hence cannot stand the real test in a civil court.

It is indeed a blessing that this is a dismissal in the High Court.  If the High Court has ruled in favour of the two plaintiffs, then AVCF would appeal to the Appeal Court on the Constitution anomaly of the three constitution.  I do not know what are the grounds of dismissal.  I do not see any of the Court papers of the plaintiff and defendant.  Maybe the Judge used other points to dismiss the case.

So we really have to make our Constitution strictly comply with the standard of the civil courts as there are unlikely any similar case law on such church disputes.

The Judge must be on safe ground to decide to send the case away from the Courts once and for all.  I also under the Judge had ruled  no appeal as it is a sensitive matter concerning religion.

What tickles my mind is that on 24th January, 2014, it was supposed to be VC for the delivery of the decision in OPEN Court.  Then today 29 January, 2014, it is a few minutes in the Chamber of the Judge.

Why such diversion over a few days?  Was there an interference from somewhere?

Nevertheless, it is now back to the drawing boards for the members of ADOS to move forward the 'blue ocean' strategy to force the unwanted bishop Vun to stop the rot in ADOS beyond repair.

  I also do not know why my counsel just did not refile my case as promised.  It could be that some quarters influenced him not to do any thing as there was another group going to the High Court.  So it was thought that two concurrent cases could be counterproductive and so now this 'Archbishop" case is off, I can refile my case on the substance of that case struck off by lack of locus standi which has now being repaired.

Please pray for me and my legal counsels to pick up the loose pieces again.


Joshua


Why? Why? Why?

So I have to refile my case.  Anyone want to support me now?

It needs three efforts in the Triune God to achieved our common objective to bring back God's order in ADOS.

6013-8394513.