What Happens If Najib Re-Files Suit For Damages, Compensation!

Civil suit, properly drafted, has nothing to do with conviction in SRC case

RCI for Najib's cases?
There are numerous issues in law which may further bog down former premier Najib Razak's SRC appeal

PUTRAJAYA, Thurs: The Court of Appeal today dismissed the appeal by ex-premier Najib Razak against the High Court’s September 2020 decision to strike out his lawsuit against AMMB Holdings Bhd (AmBank), AmBank Islamic Bhd and AmBank former relationship manager Joanna Yu Ging Ping after Najib was found guilty in July 2020 of seven charges involving ex-1Malaysia Development Bhd (1MDB) subsidiary SRC International Sdn Bhd.

Justice Yaacob Md Sam, who led the three-member Court of Appeal bench which included Justices Hadhariah Syed Ismail and Ahmad Zaidi Ibrahim, said the appellate court’s decision was unanimous as there are no appealable errors with regards to the High Court’s September 2020 decision to strike out Najib’s lawsuit against  AmBank, AmBank Islamic and Yu.

He said that there is no appealable error in this case which warrants appellate intervention, thus the bench dismissed both appeals.

Najib’s lawyer, Muhammad Shafee Abdullah later said that he was instructed to appeal against the Court of Appeal’s decision at the Federal Court and he has to obtain court permission to do so.

With that, if the Federal Court overturns his conviction in the SRC case, Najib can reinstate the case whereby he must seek damages and compensation, or risk being denied again.

According to jurist Joe Fernandez, the earlier civil suit was rejected because Najib did not seek damages and compensation. So, the Court concluded that it was a collateral attack on the conviction.

“That’s not allowed. The proper way to revisit a conviction is to Appeal.

“Najib can re-file the civil suit, seeking damages and compensation, before the Federal Court revisits the SRC conviction,” he added.

On 28 July 2020, the High Court sentenced Najib to 12 years in jail and fined him RM210 million after he was found guilty by Justice Mohd Nazlan Mohd Ghazali of seven charges involving SRC.

The seven charges comprise one count of abuse of power involving Retirement Fund (Inc)’s (KWAP) RM4 billion loans to SRC, three counts of criminal breach of trust involving RM42 million and three counts of money laundering.

On 28 Sept 2020, the High Court struck out Najib’s lawsuit against AmBank, AmBank Islamic and Yu.

Najib filed the suit against AmBank and Yu over the management of bank accounts under his name to divert funds from SRC.

The former premier also sued AmBank and AmBank Islamic for breach of duty and negligence in handling his bank accounts. Najib claimed that such negligence had resulted in him being found guilty of criminal breach of trust involving the RM42 million of SRC’s money.

The Court of Appeal on 08 Dec 2021 upheld the High Court’s July 28, 2020 decision which found Najib guilty of the seven charges involving SRC.

At the Court of Appeal on Thursday, Justice Yaacob said Najib’s lawsuit against AmBank, AmBank Islamic and Yu was a collateral attack on the SRC criminal case, and not entirely to seek damages from them.

In legal terminology, a collateral attack refers to a legal action to challenge a court’s decision in another case.

Justice Yaacob said it would be improper for the civil court to intrude into the domain of the criminal court.

“The matter cannot be adjudicated by different courts,” he said.

Justice Yaacob said the criminal charges Najib is facing cannot be attributable to AmBank, AmBank Islamic and Yu as the attorney-general can institute any criminal charges based on the Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 in the SRC case.

He cited the High Court’s 28 July 2020 decision which found Najib guilty of the seven charges involving SRC and the Court of Appeal’s 08 Dec 2021 decision to uphold the former premier’s conviction in the case in which the courts agreed that Najib knew how his bank account transactions were conducted.

“The issues argued here are also similar and identical in nature and there is a finding of fact as with the SRC [criminal proceedings] that the appellant (Najib) knew the monies had entered into his bank account and allowed it to be manipulated by a third party to ensure there are enough funds and the issuance of cheques.

“What was essential in the present appeal is that the appellant (Najib) knew how his account is conducted and the Court of Appeal had made a similar and identical finding and decision,” he said.

Representing AmBank and AmBank Islamic were lawyers Yoong Sin Min and Benjamin Dawson while Yu was represented by lawyer Dr Gurdial Singh Nijar. – New Malaysia Herald

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