Press Statement – October 14, 2021
KOTA KINABALU: The Court of Appeal delivered its ruling on Thursday in favour of Datuk Christina Liew Chin Jin’s and Samsuri Bin Baharuddin’s appeal against the decision of the Trial Judge, Justice Chew Soo Hoo (as he then was) in the High Court, Tawau in 2014.
In the hearing of the appeal, the Court of Appeal delivered the decision as follows :
“We find there is merit in this appeal. The appeal is allowed. The decision of the High Court Judge dated September 30, 2014 is set aside and we order the matter to be remitted to the High Court for retrial after the determination of the Arbitration.”
The Court of Appeal in its Grounds of Decision said, among other things, that the Judgment of the Trial Judge was a nullity. (null and void). It was a nullity because the Trial Judge should not have proceeded with the trial. There was supposed to have been an arbitration to decide on the validity of the Joint Venture Agreement (JVA) entered into between the Bagahak Scheme smallholders and Borneo Samudera Sdn Bhd (BSSB).
BSSB had applied for the dispute between the parties in the High Court Suit to be arbitrated in accordance with the terms of the JVA.
Justice Gopal Sri Ram (as he then was) in the Court of Appeal had in 2008 ordered that the High Court Suit be stayed in favour of arbitration.
In 2014, the Trial Judge had decided that Liew and Samsuri were liable for inducing the smallholders of the Bagahak Scheme to breach the JVA entered into between the smallholders and BSSB.
The Trial Judge ordered damages to be assessed by the Deputy Registrar, High Court Tawau. In its claim against Liew and Samsuri, BSSB had prayed for damages of RM557,641,716.29.
To clarify, the High Court in Tawau did not order RM557 million damages against Liew in its decision on the case commenced by BSSB, but merely ordered BSSB’s claim for damages to be assessed by the Deputy Registrar.
Meanwhile, the High Court Suit came up for case management before Datuk Douglas Cristo Primus Sikayun (as he then was). This was to case manage the Suit for eventual trial. BSSB’s Counsel informed Douglas that there was an arbitration to resolve the dispute: whether the JVA was valid or not.
Accordingly, Douglas adjourned the hearing to await the outcome of the arbitration proceeding.
In addition to the Court of Appeal’s ruling that the Trial Judge’s decision was a nullity, it also ordered that there be a re-trial of the High Court Suit in Tawau. But this can take place only after the arbitration tribunal had decided on the enforceability of the JVA.
The Court of Appeal Judges who heard the appeal were Dato’ Mohamad Zabidin Bin Mohd Diah, Dato’ Lee Heng Cheong and Datuk Wira Haji Ahmad Nasfy Bin Haji Yasin.
Dato’ Malik Imtiaz Sarwar, Datuk Alex Decena and Jordan Kong appeared for Liew and Samsuri.
Jeyan Marimuttu and Jimmy Chang appeared for BSSB.
