Businessman Tan Sri Abdul Halim Saad (The Edge filepix by Suhaimi Yusuf)

KUALA LUMPUR (May 14): Businessman Tan Sri Halim Saad’s latest suit against former prime minister Tun Dr Mahathir Mohamad, Tan Sri Nor Mohamed Yakcop and the federal government, in which Halim claimed his constitutional rights under Articles 8(1) and 12(1)(2) of the Federal Constitution for the government’s purchase of 32.69% stake in Renong Bhd from United Engineers Malaysia Bhd (UEM), a unit of Renong Bhd, has been struck out.

This follows Judicial Commissioner Dr Suzana Muhamad Said allowing the government’s striking out application that it was bound by the principle of stare decisis (to stand by things that had been decided by the previous precedent) in the Asia Commercial Finance (Bhd) case.

Suzana said this case is similar to Halim’s 2013 case, which had been filed and disposed of.

“The principle of res judicata (that a cause may not be relitigated once it has been judged on the merits) and [the] limitation period applies. There is a reason why there is a limitation to bring [on] this action, as it is to stop unnecessary action [from] being taken after a period of time.

“The transaction in this occasion took place in 2001, and the plaintiff (Halim) brought this action now, after 20 years; and earlier in 2013, as in this instant case brought forward to the court,” she added.

Suzana said that for these reasons, the court also dismissed Halim’s application to hear the constitutional questions as referral to the Federal Court.

Suzana also ordered Halim to pay RM10,000 in costs.

The limitation period refers to when a party can file an action, and in this instance, Mahathir, Nor Mohamed and the government, represented by senior federal counsel Ahmad Hanir Hambaly @ Arwi, argued that Halim is barred by the Public Authority Protection Act (PAPA) 1948, which limits a claim within three years; or the Limitation Act 1953 that limits an action within six years.

Suzana made the decision after hearing submissions from both parties on Tuesday.

The Asia Commercial Finance case referred by Suzana concerns a second proceeding brought by the company after an earlier case was dismissed, where the apex court ruled res judicata, in which the matter had been adjudicated by a competent court.

In 2013, Halim filed a RM1.8 billion civil suit against the government, Khazanah Nasional Bhd and Nor Mohamed after alleging he (Halim) was cheated. Halim fought all the way to the Federal Court, but lost in 2015.

Businessman’s latest action

Halim brought the latest action in August last year, where he claimed that Mahathir, Nor Mohamed and the federal government had caused him to suffer losses as a result of concerted efforts by the authorities to stop his bid to take over United Engineers Malaysia Bhd (UEM), which then owned prized assets including the North South Expressway’s toll concession.

Halim claimed that upon instructions from Mahathir, Nor Mohamed — in his capacity as special economic adviser to Mahathir — proceeded with the purchase of a 32.69% stake in Renong from UEM.

This, Halim added, is pursuant to the put option exercised by UEM in December 2000, giving Halim the right to buy the 32.69% stake in Renong from UEM for RM3.165 billion.

The Renong shares would only be transferred to Halim upon full settlement of the payment sum. Halim claimed he made the first payment of RM100 million to UEM on Feb 14, 2001, for the share purchase. An extension till Sept 12 was granted for the second instalment, as Halim needed more time to raise funds.

At the same time, Halim was also planning a bid to take UEM private. He claimed that he had acquired financing for the share purchase and the general offer to buyout UEM then.

According to the suit, Halim was summoned to meet Mahathir, and subsequently Nor Mohamed on July 12, 2001.

Then, Halim alleged that he was directed not to execute his takeover plan and not to complete the purchase of UEM shares via the put option.

“The collective and concerted actions of the defendants resulted in my loss of control of Renong, which also meant the indirect loss of control of UEM and its highly valuable assets,” Halim said in his statement of claim.

Halim’s counsel will take further instructions

The businessman, who was represented by Datuk Malik Imtiaz Sarwar, said he will take further instructions on whether to appeal Tuesday’s decision.

An appellant in civil proceedings has 30 days to file a notice of appeal.

Earlier, Malik had wanted the court to hear the constitutional referral application made by Halim in the matter on two issues, for them to be referred to the Federal Court for determination, and this was agreed by Ahmad Hanir.

The two referral issues are whether Halim’s claim against the defendants on a breach of his right to equal treatment and right to property under the Federal Constitution is time barred; and secondly, whether he is estopped from raising the issue on breaches of fundamental rights by reason of a previous suit filed by Halim in 2003.

However, Suzana decided to hear Mahathir, Nor Mohamed and the government’s application to strike out the suit.

Malik argued that the striking out of the suit is not applicable, citing the case of Semantan Estate (1952) Sdn Bhd, where the Federal Court ruled that a claim on a constitutional issue is not time barred, where the apex court ruled that the government had trespassed on the said land, which is now part of Jalan Duta.

“It is not open to say that limitation applies and it is settled. As in a Court of Appeal case, the limitation applies to when it deals with personal rights and it does not apply to constitutional rights as in the Semantan Estate case, where the decision was made on the rights of property as in my client’s case,” he added.

“The government has not paid for that property in the acquisition (of the shares). The government only paid RM165 million and nothing more,” Malik said.

Ahmad Hanir argued that this court was bound by the PAPA 1948 Act and the Limitation Act 1953, and determination has been made on the earlier suit.

“It was decided 10 years ago. There is a clear-cut delay in Halim to file the suit in 2013, and limitation sets in,” he added.