PUTRAJAYA (Nov 24): The Court of Appeal has dismissed Datuk Seri Najib Razak’s appeal to attend the hearing of his application to set aside the US$681 million (RM3.1 billion) Mareva injunction (freezing order) imposed on him by 1Malaysia Development Bhd and its four subsidiaries, as the matter is considered academic.
A three-member bench led by appellate court judge Datuk P Ravinthran said the bench considered Najib’s application was only confined to the hearing of the Mareva injunction at the High Court.
“The bench agrees with the counsel for 1MDB (Siva Kumar Kanagasabai) that the matter has already been decided by the High Court and whatever decision made here would be rendered academic.
“In respect to the pending appeal [for this Mareva injunction], nothing here precludes Najib to make an application to attend the hearing or any matter in future application at the Court of Appeal. Hence, we dismiss Najib’s appeal,” Ravinthran said.
The bench that also comprised Datuk Seri Mariana Yahya and Datuk Lim Chong Fong made no order as to costs.
Najib’s counsel Tan Sri Muhammad Shafee Abdullah said his client is appealing against High Court judge Atan Mustaffa Yussof Ahmad’s decision not to allow the former prime minister’s presence in his application to set aside the ex-parte (in the interest of one side) Mareva injunction granted by the court last year.
Shafee argued that this constituted a miscarriage of justice, as the court should allow his client’s presence despite Najib not being called on to testify in the suit just yet, as Najib is a party in the proceedings where he is the first defendant in the suit.
He claimed that Atan was wrong in his decision as according to the Prisons Act, a person serving time for one's offence can be produced in court on application if the person was testifying as a witness or is a party to the suit.
The senior counsel further argued that should this appeal not be allowed, it may set a dangerous precedent to bar any prisoners from attending a civil court hearing.
“My client is the first defendant in the 1MDB suit, and a claim of US$681 million has been claimed on him. Surely, he has the right to be present and for us to take instructions from him,” Shafee argued.
Siva Kumar countered by saying that the matter was academic, as the High Court had heard and decided on the matter, and there was nothing stopping Shafee or Najib from filing an application at the Court of Appeal.
He noted that when Najib was free from serving his 12-year jail sentence and RM210 million fine, the former prime minister had made no attempt to attend proceedings concerning this suit.
“Now that he is serving time, he has made the application to attend the hearing. 1MDB objected to his presence, as he has able lawyers from Shafee & Co to represent him as the application for Mareva is decided based on affidavits. If not, Najib would not have chosen the firm,” he replied.
Furthermore, he added the High Court judge had noted that he has discretion and Najib’s presence was not required as a witness just yet.
“If the High Court allows prisoners to attend civil proceedings all the time, it would open the flood gates of every prisoner wanting to attend the civil proceedings they have, even though it is for case management or online.
“The judge in not allowing the application ruled that as a prisoner, he loses some of his basic rights as a citizen. The word is basic right and not fundamental right. He loses the right to freedom of movement,” he added.
Atan on Sept 27 upheld the inter-partes Mareva injunction imposed on Najib to freeze US$681 million of his purported assets, having granted the ex-parte injunction on Feb 8 against the former prime minister.
The court had on Nov 11 dismissed Najib’s bid to attend the Mareva injunction court proceedings which were heard this year.