IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(APPELLATE AND SPECIAL POWERS DIVISION) ORIGINATING SUMMONS NO: R3(2)-24-33-2006
In the matter of the Sports Act 1997 and the Regulations thereon
In the matter of the Constitution of Malaysian Indian Football Association
In the matter of Order 5 Rule 4(2) and Order 15 Rule 16 Rules of the Hight Court 1980
1. ANNAMALAI RENGASAMY
(VICE PRESIDENT – PROTEM COMMITTEE)
2. SAARAN NADARAJAH
(VICE PRESIDENT – PROTEM COMMITTEE) … PLAINTIFFS
1. PATHY SUPPIAH
(VICE PRESIDENT – PROTEM COMMITTEE)
2. MANIAM MANIKAM
(TREASURER – PROTEM COMMITTEE)
3. GOVINDASAMY P. SANJEVEE
(ASSISTANT GENERAL SECRETARY -PROTEM COMMITTEE)
4. SUBRAMANIAM MUNUSAMY
(COMMITTEE MEMBER – PROTEM COMMITTEE)
5. SUBRAMANIAM ARUMUGAM
(COMMITTEE MEMBER – PROTEM COMMITTEE) … RESPONDENTS
GROUNDS OF DECISION
The Originating Summons in this action was filed in 29.3.2006 by two Vice Presidents of Persatuan Bolasepak India Malaysia (PBIM). The 1st Defendant was also at the material time a 3rd Vice President of the Association. The 2nd Defendant was then the Secretary, the 3rd Defendant the Assistant Secretary, and the rest were Committee Members.
The Factual Matrix
These persons, together with one Dato’ Subramaniam Sinniah (who was the President) and Dato’ M.S. Maniam (who was the Deputy President), had been acknowledged as the lawfully appointed Protem Committee Members of PBIM by the Commissioner of Sports Malaysia (Pesuruhjaya Sukan Malaysia) on 8.12.2005.
Dato’ Subramaniam Sinniah, the President of the society, was also at the material times, the Deputy President of the Malaysian
Indian Congress (MIC). This fact was of some relevance, according to the Plaintiffs.
What was supposed to be a normal progression in the affairs of a recognised Sports Association, tuned out to be acrimonious in the context of what the Plaintiffs described in the Supporting Affidavit as:
“The Defendants …conspired among themselves to overthrow the President and seize control of the leadership of the association.”
See paragraph 8 of the Supporting Affidavit affirmed by Annamalai a/l Rengasamy dated 28.3.2006.
The Commissioner of Sports, Malaysia had earlier ruled on the legally constituted office bearers of the Association, and thereafter had directed that the President of the Association convened a meeting of the Protem Committee of the Association. The President then convened the Meeting of the Protem Committee on 20.2.2006 at the Selangor Club, Bukit Kiara Annex, which was the venue for the Olympic Council of Malaysia. The Supreme Council reached a deadlock on the issue of the admission of Affiliate Members from the States, and from then on it appeared that there was a leadership tussle among the office bearers.
The Defendants, knowing that the President, being the Deputy President of MIC, had to attend the MIC Presidential Election Nomination on 5.3.2006, issued a requisition under Article 19.1 of the Association’s Constitution to call for Protem Committee Meeting on
the same date and time. The Olympic Council cancelled the booking of the venue.
The Secretary, without consulting either the Management Committee or the President himself, issued a notice to convene the Protem Committee Meeting on 23.2.2006, namely two days after the date of the requisition.
The President of the Association, after being told of the impending Protem Committee Meeting set for 5.3.2006, took steps to cancel the venue of the Meeting by addressing a letter to the Olympic Council.
The Secretary of the Association retaliated and responded to the President, informing him that he had consulted all the Protem Committee Members and allegedly they had unanimously agreed to proceed with a meeting at the scheduled venue. The Secretary and the Defendant carried on with the meeting, as it turned out not at the scheduled venue but at a coffee house nearby the Malaysian Olympic Council Building. According to the 1st Plaintiff/Deponent, the Defendants had hoped by this meeting “to complete the takeover of the association from the President by conspiracy and fraud.” See paragraph 23 of the Supporting Affidavit.
Apparently the Deponent then made a bankruptcy search and was “shocked” to discover that the “principal player”, Dato’ M.S. Maniam, had been made a bankrupt by the High Court on 3.1.2006. It was argued that Dato’ M.S. Maniam could not therefore lawfully remain as the Deputy President of the Association, and the abovesaid
requisition notice, being signed by Dato’ M.S. Maniam, was also invalid since with his exclusion, the number of person acquisitioning fell below six, which was the number required under Article 19.1 of the Constitution to carry a proper resolution. As a consequence, since the requisition notice was invalid the Protem Committee Meeting held on 5.3.2006 was also not lawfully convened by the Secretary.
The Protem Committee Meeting on 5.3.2006 also resolved to hold the Annual General Meeting of the Association on 31.3.2006. That was held at Menara Manikavasagam, Kuala Lumpur, and the following members were elected as the Committee Members of the Association:
President S. Vell Paari
Deputy President T. Mohan
Vice Presidents Amaluddin Mohamed Ismail
Dato’ SNK Alagasundram J Dhinagaran
A Subramanim Dato’ L Krishnan S. Sobramonoven Muhamad Apandi Abdullah
It was a matter of record that there were subsequent Annual General Meetings held on 26.4.2008 and 32.8.2009.
As at the date of the hearing of the Originating Summons, all the Defendants were no longer Committee Members of the Association.
The Prayers in the Originating Summons
This was the factual matrix of the dispute, and thus the present Originating Summons was filed for the following relief:
(a) A declaration that upon the true construction of the Sports Development Act 1997 and the Regulations made thereunder and the Constitution of the Malaysian Indian Football Association, Dato’ M.S. Maniam was not qualified to hold the office of Deputy President on 21.2.2006.
(b) Consequent thereto a declaration that the requisition signed by the six members on 21.2.2006 to convene a Supreme Council Meeting1 and Annual General Meeting of the Malaysian Indian Football Association is unconstitutional, null and void and inoperative.
(c) All the decisions taken at the purported Supreme Council Meeting held at the coffee house of the Grand Olympic Hotel on
5.3.2006 including the convening of the Annual General Meeting of the Malaysian Indian Football Association on
31.3.2006 is unconstitutional, and null and void in operative and set aside.
(d) In the event the said purported Annual General Meeting is held by the decision of the Defendants taken at the alleged Supreme Council Meeting on 5.3.2006, a further declaration that the purported Annual General Meeting to be held/or held on
1 This was the very same Protem Committee Meeting.
31.3. 2006 is null and void and of no effect on all the decisions
made thereon be set aside by this honourable court.
After considering the facts and the overall circumstances of the case, seen in the context of the statutory provisions in the Sports Development Act 1997, the Plaintiffs’ application was dismissed with costs of RM4,000.00 to be paid by the Plaintiffs to the Defendants within one month from the date of the court’s order.
A declaratory order being a discretionary relief, to have acceded to the Plaintiffs’ application would have resulted in an intricate unravelling of the affairs of the association, which in itself would have been inordinately prejudicial to the association itself. The personalities involved at the outset of the dispute had changed, and in this sense the personal dispute between the parties had been spent.
The issue had become “theoretical” and the court was not in a position to provide any “practical guidance”, such that it was not proper to grant the declaratory orders sought. See Lord Denning MR in Merricks v Nott-Bower  1 QB 57 (cited by Defendants’ counsel to good effect):
“It is asked: What use can such declarations be at this stage, when the transfer took place six and a half years ago? What good does it do now? There can be no question of re-opening the transfers…If a real
question is involved, which is not merely theoretical, and on which the court’s decision gives practical guidance, then the court in its discretion can grant a declaration.”
It appeared that the Plaintiffs also attended the Protem Committee Meeting which decided on the Annual General Meeting to be held on 31.3.2006.
Further, since the dispute concerned the affairs of an association of members, it is a well-accepted general principle of much utility and practical sense that members should first attempt to resolve their dispute internally. This principle of exhaustion of domestic remedies was recognised in numerous cases, such as Tharmalingam v Sambanthan (1961) 27 MLJ 63 and Dollah bin Haji Salleh v Tuan Hj Muhyiddin bin Hj Mohd Yassin & Anor  1 MLJ 311.
Counsel for the Plaintiffs had argued that no regulations had been passed under section 23 of the Sports Development Act to provide for such internal procedures. The Sports Development Act provided the governing statutory framework in this case. To some extent this was true, but the provisions had to be construed as a whole. In this connection I agreed with the position taken by counsel for the Defendants that section 24 of the said Act was broad enough to have allowed a referral to be made to the Minister to resolve this dispute. Section 24 therefore had to be read together with section 23.
The provisions read:
“Section 23. Internal procedure for resolution of dispute.
Every sports body shall resolve any dispute arising amongst its members or with its Committee or governing body in accordance with the internal procedures prescribed in the regulations.
Section 24. Referral of dispute to Minister.
(1) Where a dispute cannot be resolved under the internal procedure referred to in subsection 23(1), any aggrieved member of the sports body itself may refer the dispute to the Minister for resolution.
(2) The Minister may, upon the advice of the Commissioner and at any time he deems it necessary and expedient, require any sports body to refer any dispute to him for resolution notwithstanding that the dispute has not been referred to him under subsection (1).
(3) The decision of the Minister under this section shall be final; but the Minister may seek the opinion of the Sports Advisory Panel or any other Committee established by the Minister for that purpose before making his decision.”
From the above statutory provisions, it was clear that the Minister could have had the dispute referred to him under section 24 (3).
The Plaintiffs could have referred the matter to the Sports Commissioner who could then have referred the matter to the Minister.
Declaratory relief should not be granted where there existed a suitable alternative procedure.
For these reasons, the Plaintiff’s application was dismissed with
Dated 22nd December 2009
( MOHAMAD ARIFF BIN MD. YUSOF ) JUDGE
HIGH COURT MALAYA KUALA LUMPUR
For the applicant:
Dato’ M.S. Murthi & Norsilati Binti Abdullah Messrs Chambers of Murthi & Partners.
For the respondent:
Prem Ramachandran Messrs Kumar Partnership.