PUTRAJAYA (Feb 10): The Court of Appeal on Friday (Feb 10) reserved its decision in the appeal by National Feedlot Corporation Sdn Bhd (NFCorp), its chairman Datuk Mohamad Salleh Ismail and four others against Public Bank Bhd over alleged breach of contract in protecting information in their bank accounts.

The bench — led by Datuk Azizah Nawawi and also comprising Datuk P Ravinthran and Datuk ES Nantha Balan — decided this after hearing submissions for more than four hours from the two sides.

Salleh, NFCorp and the four others, who are seeking RM560 million in damages for the purported leak, were represented by lawyer Tan Sri Muhammad Shafee Abdullah, while Yoong Soon Min appeared for Public Bank.

Shafee submitted that a printout of a document — allegedly obtained from former Public Bank clerk Johari Mohamad — that was used by PKR politician Rafizi Ramli (currently the economy minister) at a press conference on the NFCorp issue in 2012 had originated from Public Bank, and as such the bank should be held liable.

He said as a result of Rafizi’s exposé, NFCorp and Salleh had been charged in court five days after the press conference and Salleh had his bank account frozen.

“The publication of the leak had affected Salleh, NFCorp and the other companies' reputation, and as a result they suffered irreparable damage affecting their business,” Shafee claimed.

The lawyer also submitted that a senior Public Bank officer whose password was used by Johari to access documents pertaining to NFCorp had allegedly not supervised the former clerk’s usage of the access.

NFCorp was engaged or appointed by the federal government and was given a RM250 million loan by the government to help engage and ensure in rearing cattle for the beef supply of the country.

Yoong, in her submission, said the purported document used by Rafizi in the press conference differed from the one used by the bank.

She said that although the bank had found Johari guilty of breaches and for printing the document, no evidence was adduced at the  disciplinary inquiry against him to suggest that he passed the documents to Rafizi.

Yoong pointed out that Johari had resigned from the bank on his own accord, and the disciplinary findings of his guilt did not include any finding of Johari passing the document to the politician.

She also pointed out that Bank Negara Malaysia had conducted a probe on Public Bank over the matter and there was no finding that the bank had violated any Banking and Financial Institution Act (BAFIA) laws.

“The bank did not break any safety protocol regarding the client’s accounts as all security measures are in place regarding access. There is no deliberate attempt to authorise the passing of information to a third party.

“In any organisation, including banks, one cannot preclude there will be a rogue officer to do what he was not authorised to do. There is no breach of contract by the bank on NFCorp’s account nor was there any intention by the bank to breach this,” she added.

Hence, Yoong submitted that NFCorp’s claims for losses as dismissed by the High Court should not be allowed.

On July 29, 2019, then High Court judge Datuk Su Geok Yiam had dismissed NFCorp’s suit saying the companies and Salleh had failed to prove their claim against the bank on a balance of probabilities resulting in the appeal.

In her submission, Yoong also cited the auditor general's report that said NFCorp had not been producing enough cattle as required in its findings in 2010 and 2011.

“The investigating officer who froze NFCorp’s account also testified in the trial that the freezing of the company's account had nothing to do with Rafizi’s press conference. The freezing of accounts had already taken place since November 2011,” she added.

Hence, Yoong said the bank should not be held liable for the purported losses claimed by the appellants as their accounts were frozen even before the press conference.

The Public Bank counsel added that if anyone was at fault, it should be those who caused the press conference. However, she noted that Salleh and NFCorp had also failed in their suit against Rafizi, former lawmaker Nurul Izzah Anwar and PKR for this purpose.

Although Rafizi and Johari had initially been found guilty by the Sessions Court under BAFIA, they had been acquitted by the High Court and the prosecution withdrew its appeal at the Court of Appeal.

Similarly, although Salleh was initially charged with two counts of criminal breach of trust of RM49.7 million, the action was discontinued by then attorney general Tan Sri Mohamed Apandi Ali.

Apart from this civil case, the government on its part has instituted a RM250 million suit against Salleh and NFCorp. The suit is still pending.

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