PUTRAJAYA (Jan 6): A three-member Court of Appeal bench on Monday ruled to allow former prime minister Datuk Seri Najib Razak’s appeal, to have the merits of his challenge over the existence of an addendum, purportedly issued by the 16th Yang di-Pertuan Agong for him to serve the remainder of his jail sentence under house arrest, to be heard at the High Court.

In a split decision, judge Datuk Azizah Nawawi, who led the bench, was in the minority, while judges Datuk Azhahari Kamal Ramli and Datuk Seri Mohd Firuz Jaffril allowed Najib’s appeal.

Reading out the majority decision, Firuz said that in allowing Najib to adduce further evidence in the form of his son Datuk Nizar Najib’s affidavit, the court also accepted that there was no rebuttal by the attorney general over the existence of the addendum, and hence, what was alleged and found by the High Court earlier, of it (the addendum) being hearsay, could no longer stand.

In accepting Nizar’s bid to adduce further evidence on behalf of his father, Firuz said the court accepted that the evidence adduced was not available beforehand, as Najib had previously written to six respondents from the government over the existence of the purported addendum, but did not get any response.

“Najib sought permission from the sultan to use the addendum in his affidavit for the purposes of the appeal. Having received the consent of the sultan of Pahang on Dec 2, Najib filed the said addendum in court,” the judge added.

Firuz said without the consent, it was not possible for Najib to file the addendum in court, nor could Najib compel the Pahang sultan to furnish the addendum.

“We are therefore of the view that Najib had complied with the principles propounded in Ladd vs Marshall (where the evidence was not available then, reasonable due diligence was exercised, and it would influence the result of the case),” Firuz said.

“The fact that there is no rebuttal affidavit from the respondent challenging the existence nor the authenticity of the addendum order is rather compelling (despite on Dec 5, 2024, informing this panel that they are seeking time to do so). We must state that at this stage, we are not concerned about the authenticity of the same. Rather, it is whether the addendum concerned exists or otherwise.”

Given the fact that there was no challenge on the addendum's existence, Firuz said there was no justification for the court to say that the principles within the Ladd v Marshall case had not been complied with.

“We are of the considered view that the failure of the respondent to challenge the same means this court cannot simply ignore the existence of the order by the then Yang di-Pertuan Agong,” he said.

On the main appeal, Firuz noted that the High Court’s decision for dismissing leave (permission) to hear the merits was due to Najib having relied on hearsay evidence, for which the Court of Appeal found that the issue of hearsay could no longer stand.

“Bearing in mind that Najib, in a judicial review application, only needs to show that he has a good arguable case, premised on the fact that his interest or rights have been aggrieved, and one that is not frivolous and vexatious, we are minded to allow the appeal,” the judge in the majority said in ordering the case to be remitted to the High Court to hear the merits.

Azizah dissented, and said she agreed with High Court judge Datuk Amarjeet Singh Serjit Singh, in upholding the decision to not admit the evidence by Nizar since, similarly, the evidence adduced at the High Court by Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi and Pahang Menteri Besar Datuk Seri Wan Rosdy Wan Ismail in citing evidence from Investment, Trade and Industry Minister Tengku Datuk Seri Zafrul Abdul Aziz had been ruled as hearsay evidence.

She ruled that Nizar’s bid to adduce additional evidence did not pass the threshold met in Ladd vs Marshall, and she found no merit to accept them as further evidence.

As such, Azizah, who led the bench, said she found that there was no appealable error for her to exercise appellate intervention, and ruled that the High Court’s decision in ruling that Ahmad Zahid and Wan Rosdy’s affidavits as hearsay evidence and should not be accepted was correct.

Najib had named the home minister, the commissioner general of the Prisons Department, the attorney general, the Federal Territory Pardons Board, the de facto law and institutional reform minister, the director general of the Legal Affairs Division at the Prime Minister’s Department, and the government as respondents.

On July 3 last year, Amarjeet in his decision had said that the affidavits affirmed must contain facts that had been verified, but the affidavits submitted before the High Court contained bare statements without mentioning the source.

“The averments by Ahmad Zahid and Wan Rosdy are hearsay, as the source of their information was Tengku Zafrul. The crucial question is whether hearsay can be referred to [in] an affidavit verifying the facts. I have no doubt that the affidavits filed by Najib, Ahmad Zahid, and Wan Rosdy, concerning the addendum, are hearsay,” the High Court judge had ruled.

Although the matter is to be reverted to the High Court, it will be heard by a judge other than Amarjeet. Case management for this has been set for Jan 13.

This follows a request made by Najib’s lead counsel Tan Sri Muhammad Shafee Abdullah for the matter to be heard before another judge.

The case on Monday attracted a huge presence, where a crowd of supporters gathered in front of the Palace of Justice.

Datuk Seri Takiyuddin Hassan held a watching brief in the proceedings representing opposition leader Datuk Seri Hamzah Zainudin, Terengganu Menteri Besar and Kemaman Member of Parliament Datuk Seri Dr Ahmad Samsuri Mokhtar, and Bersatu vice-president Datuk Seri Dr Ronald Kiandee.

Read also:
AGC claims no due diligence on Najib’s part to produce additional evidence on purported addendum, maintains February release as main order
Nizar produces letter purportedly from Pahang comptroller, allegedly verifying addendum
Supporters turn up to Najib solidarity rally 
Najib wants to adduce fresh evidence on his house-arrest addendum appeal