NFC's Salleh granted leave to appeal in defamation suit against Rafizi

Datuk Seri Dr Mohamad Salleh Ismail (Photo by Patrick Goh/The Edge)

Datuk Seri Dr Mohamad Salleh Ismail (Photo by Patrick Goh/The Edge)

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PUTRAJAYA (Sept 24): National Feedlot Corporation Sdn Bhd (NFC) and its chairman Datuk Seri Dr Mohamad Salleh Ismail have today been given leave by the Federal Court to appeal the Court of Appeal's decision to dismiss his defamation suit against former Pandan Member of Parliament and PKR vice president Rafizi Ramli.

A three-member bench led by Federal Court judge Datuk Abdul Rahman Sebli allowed four questions of law to be decided on during the hearing of the merits of appeal after Salleh's counsel Tan Sri Muhammad Shafee Abdullah indicated that Rafizi's lawyer, Ranjit Singh, did not object.

Shafee said this comes as the Court of Appeal’s decision “was completely off-tangent” as its judgment was decided on something which was not pointed out in the appeal.

“We feel that these questions ought to be allowed for leave,” the senior lawyer said.

Ranjit concurred, adding that Rafizi's defence of fair comment, which was the main point in the case, was not addressed in the judgment and the court decided on another matter on its own.

“We won the appeal but when the grounds from the Court of Appeal came out, the judge (at the appellate court) got it wrong in our favour. If the merits of the appeal is heard, we do not want the defence of fair comment, which is essential in our case, to be precluded,” he said.

For this reason, Ranjit said they agreed not to object the questions of law that would be decided by the apex court.

Following this, Justice Rahman, who sat with Federal Court judges Puan Sri Zaleha Yusof and Datuk Seri Hasnah Mohammed Hashim, allowed Salleh leave to hear the appeal on its full merits.

Rafizi had in 2012, alleged in a press conference that NFC had used the RM250 million government loan as collateral to purchase commercial properties at KL Eco City. In the end, Salleh did not purchase the said properties as alleged by the former federal lawmaker.

The company denied the claim, saying the purchases were private investments made by the company’s directors, who were Salleh and his three children with his wife, former Wanita Umno chief Tan Sri Shahrizat Abdul Jalil.

Initially, the High Court had on Oct 31, 2016 ordered Rafizi to pay RM150,000 in damages to Salleh and RM50,000 to NFC for defamation.

However, a three-member Court of Appeal bench led by Justice Datuk Dr Hamid Sultan Abu Backer had on May 14 last year ruled that Rafizi’s appeal had merits and ordered the damages and RM100,000 in costs paid by Rafizi to Salleh and NFC previously to be returned to him.

Moreover, the former Pandan lawmaker was also awarded costs of RM110,000.

The four questions that would be decided by the apex court in Salleh's appeal are:

  • Whether in a defamation action, a letter of demand before action is a prerequisite to the statement of claim.
  • Is there a co-relationship between Section 10 Defamation Act and a letter before action in a defamation action?
  • Does the plaintiff (Salleh) in a defamation action, either in letter before action or in his statement of claim, owe a duty to the defendant to elaborate the particulars of the untruthfulness of the impugned defamatory statement apart from unequivocally stating that the defamatory impugned statement was simply untrue, to enable the defendant to consider seeking the benefit of Section 10 of the Defamation Act 1957?
  • Can the very same aspect of “malice” which defeated the defendant's defence of qualified privilege survive the defence of fair comment in the same court of action? Does malice have different or like species relevant to the distinct defences of qualified privilege and fair comment?

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