A three-member Court of Appeal panel today ordered the suit filed by Pakatan Harapan Youth named Gerakan Anak Muda Tolak Najib (GANT1) against Prime Minister Najib Abdul Razak, the government and 1MDB to be struck out.
This follows the bench led by Justice Ahmadi Asnawi allowing he appeal from Najib, the government and 1MDB.
The suit is on 1MDB's payment to the International Petroleum Investment Corporation (IPIC) after arbitration following an earlier payment made to the fake Aabar company.
With this, three suits filed against Najib in relation to 1MDB have been struck out by the court.
Previously, the suit filed by Tony Pua and former de facto law minister Zaid Ibrahim, had been struck out, with the GANT1 suit being the third before the Court of Appeal.
GANT1' member and Pasir Pinji assemblyperson Howard Lee (photo) indicated they will appeal today's decision and will file leave to appeal it in the Federal Court.
On Jan 9 in the High Court in Kuala Lumpur, Justice Hue Siew Kheng ordered the suit filed by GANT1 to go on trial, after dismissing it's striking out application.
In their unanimous decision today, Justice Ahmadi, along with Justice Idrus Harun and Justice Kamardin Hashim, gave three brief grounds, the first being that Gant1 does not have locus standii (legal standing) to initiate the claim.
The othe two reasons were there was no breach of contract between GANT1 and the arbitration consent award made in the United Kingdom and finally, that the suit does not come within the ambit of Section 4 of the Government Proceedings Act.
GANT1 ordered to pay RM30k as costs
The bench also ordered GANT1 to pay total of RM30,000 as costs to all three defendants, despite GANT1's lawyer Mohd Haniff Khatri Abdulla applied that a cost of RM2,600 be given to all defendants.
Before the appeal by Najib, the government and 1MDB was heard, Haniff had applied for the recusal of Justice Ahmadi and Justice Kamardin as the two were on the bench involved in granting a stay for Najib and 1MDB to file their statements of defence. However, the panel rejected the oral application, resulting in the application being heard.
Haniff (photo) had said earlier, in his submission in reply, that GANT1's suit should be considered as a class action as the 10 named as plaintiffs represented more than 140 people who signed up to support the legal action.
He also said that as taxpayers and also since 1MDB comes under the Treasury, the plaintiffs can institute the action as they will be affected by the double payments made by 1MDB to IPIC, through the taxes they pay.
"There is no denial that 1MDB is owned by Treasury and Najib is the prime minister, finance minister and also a former 1MDB board of advisers chairperson at the material time," Haniff said.
"Furthermore, as the High Court judge had written that the plaintiffs are entitled to know why, less than a year when Second Finance Minister Johari Abdul Ghani, a representative of the government had, in August 2016, contended the government and 1MDB would challenge the arbitration but said in April 2017 that it arrived at a consent award."
The double payments referred to here means 1MDB had earlier paid the fake Aabar Investment PJS (British Virgin Island), when it should have paid to Aabar Investment PJS (Abu Dhabi), which is registered under IPIC. This follows bonds taken by 1MDB to acquire independent power producers.
IPIC first sued 1MDB in the arbitration tribunal in London in 2016, demanding US$6.5 billion while claiming that 1MDB had failed to deliver on its responsibilities.
GANT1 filed the suit in July last year in a bid to stop 1MDB’s payments to IPIC, which were part of a settlement reached in the London Court of Arbitration.
GANT1 is seeking to declare the settlement with IPIC and its subsidiary Aabar Investment PJS on May 11 null and void.
It also wants the details of 1MDB's payments to IPIC and Aabar Investments PJS to be revealed to it.
The suit also seeks a declaration that if Najib, 1MDB, and government are found to be liable for overpaying IPIC, then the excess amount should be returned to a special fund, and committal proceedings can be filed against the defendants.
1MDB has to date paid up US$1.2 billion.
Senior federal counsel Alice Loke (photo) appeared for the government, while Mohd Hafarizam Harun appeared for Najib and lawyer Tan Hock Chuan appeared for 1MDB, and all three counsel raised issues regarding legal standing.
Loke said the suit does not fall into any of the claims sought from the government under Section 4 of the Government Proceedings Act.
Hafarizam said Najib was not a party involved in the arbitration and should not be cited and also said the plaintiff should have raised the matter in the High Court in England and not here.
Tan described the action as a political action by GANT1 and that they have not showed how they will suffer as a result of the consent arbitration. -Mkini
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