PUTRAJAYA (Oct 6): The Federal Court on Thursday (Oct 6) unanimously dismissed a review application filed by businessman Deepak Jaikishian and two others against former prime minister Datuk Seri Najib Razak, his wife Datin Seri Rosmah Mansor, Baling Member of Parliament Datuk Seri Abdul Azeez Abdul Rahim and three companies including Boustead Holdings Bhd.
Federal Court judge Datuk Nallini Pathmanathan led a three-member bench that unanimously dismissed the review application by Deepak and two others, and ruled there should be no leave (permission) for a review for the matter to be heard again.
Deepak, along with his brother Rajesh Jaikishian and company Carpet Raya Sdn Bhd, wanted a review of another Federal Court bench's decision last May, which refused to grant them leave to hear the merits of their appeal to reinstate the three suits initiated by them against Najib, Rosmah, Azeez, Boustead, Bakti Wira Development Sdn Bhd, and Cebur Megah Development Sdn Bhd.
This follows the three suits being struck out by two separate High Court judges, and upheld by the Court of Appeal and the apex court dismissing their leave to appeal last May.
Nallini said there were essentially two points raised by lawyer Datuk Malik Imtiaz Sarwar for the appellants, namely a breach of natural justice and also questioning the decision to strike out the suits by the courts below without considering an amendment.
“With the lack of attempt made to amend the pleadings (the statement of claim or SOC in the High Court) to make the point clear, it is not tenable for this court to make effect of this review [application]. The obligation to have the right for litigants to have an ability to amend [the pleadings] does not lie with the High Court judge, but the plaintiffs themselves. That was not done in this case."
The Federal Court judge also found that there was no miscarriage of justice by the previous bench in slightly entering into the merits of the case in refusing to grant leave, as that bench did not exceed its jurisdiction.
“We hence dismiss the application for a review, and we are not satisfied with the principle that natural justice had been breached [when the earlier bench] did not grant leave,” she said.
Nallini sat together with judges Datuk Abdul Rahman Sebli and Datuk Zabariah Mohd Yusof in making the unanimous decision.
In addition, the apex court bench ordered Deepak and two others to pay a total of RM100,000 costs to the defendants.
Malik had argued that the High Court should have allowed his client to make amendments to the SOC for better particulars, and not to summarily allow the striking out of the suits, as this was one of the questions posed before the bench to reinstate the suits and was noted in the apex court judgement last May.
High Court and Court of Appeal struck out suits
Deepak, together with his brother Rajesh and their company Carpet Raya, filed separate suits in 2018 to seek damages from the defendants as they claimed they had acted as proxies on behalf of Najib and Rosmah in certain business transactions — which Najib and Rosmah had both denied — and in doing so had incurred taxes.
Besides Najib and Rosmah, the appellants also named Azeez as a defendant.
They further filed two suits in 2020, where Deepak alleged that the defendants had sought to wrongfully deprive him of two plots of land in Kapar, Klang, and another plot in Bukit Raja, Petaling — with all three plots measuring a collective 223.33 acres (90.38 hectares). He claimed that his legal actions against the defendants were based on the tort of conspiracy, tort of conspiracy to defraud, tort of conversion, and the doctrine of undue influence.
The suits were struck out in the High Court without a trial being heard, and the subsequent appeal to the Court of Appeal to reinstate the suits was also dismissed. The Court of Appeal, in affirming the High Court's decision on Sept 20 last year, ruled that the businessmen's claim was "obviously unsustainable".
Robert Lazar, appearing for Boustead and Bakti Wira in his submissions on Thursday, said the review was as if the parties wanted to relitigate the matter, which had already been decided by the apex court, and hence the review should be dismissed.
Datuk David Mathews for Najib and Rosmah informed the apex court bench that the suit was doomed for failure, as two separate courts found a lack of particulars, and the court below was right in ruling that they amounted to duplicity and multiplicity of proceedings.
“There is no amount of amendments to the SOC that would have changed the finding. It is not for the court to formulate the claim. That responsibility has to lie with the solicitors. The court cannot be seen to be entering into the arena to suggest amendments to the SOC.
“They (the appellants) are the authors of their misfortune,” he added.
Datuk Prem Ramachandran for Azeez said his client’s involvement was minimal but yet named in the suit, and cited that there was no cause of action to the federal lawmaker.
Ong Kheng Leong for Cebur Megah said there was insufficient material for the apex court to grant a review of the previous bench's decision.