The SJK(C) Pay Fong 1 Melaka Board of Governors does not possess legal capacity to sue or be sued under the Education Act 1996; AG's consent does not confer such capacity.

JUDGMENT

Anselm Charles Fernandis J:

Introduction

[1] This is an application by the Defendants under O 33 rr 2 and 5 Rules of (Encl 48). It requires this Court to determine the following preliminary issues:

(a) Whether the SJK(C) Pay Fong 1 Melaka Board of Governors (the Board) is a legal entity under ss 2 and 53 of the Education Act 1996 ( EA 1996) with the legal capacity to sue or be sued in this case; and

(b) If the answer is in the negative, whether the Attorney General (AG) could, by consent granted under s 9(1) of the Government Proceedings Act 1956 ( GPA 1956), confer such a legal capacity on it if none exist sunder the law.

Relevant Cause Papers

[2] The relevant cause papers for the purpose of the application are as follows:

(a) Plaintiffs'Amended Writ redated 6 January 2021 and the Amended Statement of Claim redated 5 January 2021 ("Plaintiffs' Statement of Claim" ie the original action) - Enclosure 34;

(b) Defendants' Reamended Statement of Defence and Reamended Counterclaim redated 26 March 2021 (Defendants' Statement of Defence and Counterclaim") - Enclosure 45;

(c) Plaintiffs Reamended Reply and Reamended Statement of Defence to Defendants' Reamended Counterclaim redated 9 April 2021 ("Plaintiffs Reply and Defence to Counter Claim") - Enclosure 46;

(d) Defendants' Amended Reply to Plaintiffs Reamended Statement of Defence to Defendants' Reamended Counterclaim dated 29 April 2021 ("Defendants' Reply to Plaintiffs' Defence to Counter Claim") - Enclosure 50;

(e) Defendants' Notice of Application dated 15 April 2021 (Defendants' Application") - Enclosure 48;

(f) Defendants' Affidavit in Support dated 14 April 2021 - Enclosure 49;

(g) Plaintiffs' Affidavit in Reply dated 19 May 2021 - Enclosure 51;

(h) 5th Defendant's ("AGC") Affidavit in Reply dated 19 May 2021 - Enclosure 52;

(i) Defendants' Affidavit in Reply dated 31 May 2021 to Plaintiffs AIR - Enclosure 53;

(j) Defendants' Affidavit in Reply dated 31 May 2021 to AGC's AIR - Enclosure 54;

(k) Plaintiffs Affidavit in Reply (2) dated 21 July 2021 - Enclosure 59.

[3] After considering all the documents filed and submissions made, this Court answered both issues in the negative. Consequently, I allowed Defendant's application in Encl 48 and dismissed the Plaintiffs claim. I also dismissed the Defendants' counterclaim.

[4] The Plaintiffs appealed to the Court of Appeal against this Court's decision in allowing Encl 48. The Defendants appealed against the dismissal of their counterclaim. Finally, the AG who had been added in as the Fifth Defendant in the counterclaim appealed against the decision. This judgment deals with all the three appeals.

The Parties

[5] The Plaintiffs were at all material times members of the Board. It is not in dispute that the Plaintiffs had brought this present action against the First and Second Defendants and the deceased in their capacity as members of the Board (see paras 5, 6 and 7 of the Amended Statement of Claim).

[6] The First Defendant, Second Defendant and the deceased will be collectively known as the "Defendants".

[7] The Defendants are currently the registered owners of the following properties in which they hold as trustees (herein after referred to as the "trust properties"):

(a) Lot 87 situated at Tranquerah Road (now Jalan Tengkera) and

(b) Lot 831 situated at Heeren Street (now Jalan Tun Tan Cheng Lock)

[8] The Fifth Defendant is the AG who was added by consent as seen in Exhibit "A" in the Court of Appeal Order dated 17 August 2020 (see Encl 29 and Encl 49 Exhibit "PSF-16).

[9] The parties will be known as they were in the original action.

Brief Background Facts

[10] The background facts are important for an understanding as to how the preliminary issues as posed in the two questions came about.

[11] The facts relevant to this application are that in or about 1913 two prominent local Chinese leaders namely Tan Chay Yan and Chan Kang established an Endowment in respect of the "The Pay Fong School of Malacca". It is not in contention that the Endowment con