Pahang suing Seruan Gemilang Makmur Sdn Bhd

Earlier I had promised to write on the alleged claim by Seruan Gemilang Makmur Sdn. Bhd (SGM) against the State of Pahang for the sum of RM37 million. There were also statements in the MSM, blogs and other media that the claim had amounted to RM60 million. Allegations were also made that the MB of Pahang will be sent to jail for failing to pay SGM and all sorts of other allegations, rumours and smear campaign against the MB. Some had even alleged that the MB had not taken any steps to solved the problem and worst still, they was also allegation that Pahang will be bankrupt as a result of the claim by SGM.

Pahang had filed by a Writ and Statement of Claim dated the 22^nd of December, 2008 against SGM. That Writ & Statement of Claim is yet to be extracted from the Kuantan High Court. I have a full copy of the Writ & Statement of Claim and since it is not extracted from Court it cannot be produced in full here. It is also not served on the Defendant SGM yet. Nevertheless the gist of the Statement of Claim are listed below :-

IN THE HIGH COURT OF MALAYA AT KUANTAN

CIVIL ACTION NO. 2008

BETWEEN

1. KERAJAAN NEGERI PAHANG DARUL MAKMUR

2. PENGARAH PERHUTANAN NEGERI PAHANG ..........................................................PLAINTIFFS

AND

SERUAN GEMILANG MAKMUR SDN BHD ....................................................................DEFENDANT

STATEMENT OF CLAIM

1. The 1^st Plaintiff is the State Government of Pahang with an address for service at Setiausaha Kerajaan Negeri Pahang Darul Makmur, Wisma Sri Pahang, Jalan Gambut, 25000 Kuantan Pahang Darul Makmur.
   
2. The 2^nd Plaintiff is the Director of Forestry for the State of Pahang with an address for service at Tingkat 5, Kompleks Tun Razak, Bandar Indera Mahkota, Kuantan Pahang Darul Makmur.
   
3. The Defendant is a private limited company incorporated under the laws of Malaysia and having its address for service at No. 10 Tingkat 1 Lorong Tun Ismail 1, 25200 Kuantan, Pahang Darul Makmur.
   

In the earlier case whereby SGM sued the State of Pahang, the Judge had ruled in favour of SGM. His findings can be summarised as follows:-

Findings of the learned Judge

The learned Judge accepted the testimony of inter-alia the Defendant's 1^st witness in particular the purported approval of the Pahang state exco of the said blue plan tendered by the Defendant. The learned Judge made such a finding, even though the Defendant had not produced any form of documentation at the trial of the abovementioned matter evidencing the Pahang state exco's approval of the said blue plan. The critical findings made by the learned Judge are inter-alia in essence as follows:-

1. That the plan approved by the Pahang state exco on 5/4/2000 was the said blue plan as tendered by the Defendant.
   
2. The 2^nd Plaintiff had acted negligently in refusing to adhere to the new plan approved by the Pahang state exco in April 2000 and by insisting on the utilization of the original plan approved by the Pahang state exco in 1998.
   
3. That there was no evidence before the Court indicating that the plan approved by the state exco on 5/4/2000 was not in existence and therefore it can be assumed that the said new plan approved by the state exco on 5/4/2000 was in fact the latest plan approved by the state and correspondingly the 2^nd Plaintiffs failure to adhere to the said blue plan amounted to negligence.
   
4. The evidence before the Court detailed that there was an area of 3000 acres that the Defendant was prevented from extracting timber from and the said 3000 acres had a high density of trees.
   
5. No concrete reasoning and/or explanation was advanced by the 2^nd Plaintiff as to its failure to utilize the purported current plan approved by the Pahang state exco on 5/4/2000.
   
6. Although the Defendant had failed to call the licensed surveyor who signed off on the said blue plan the Court was of the view that this was not fatal as what was important was the outcome and/or product of the survey which on the facts the Court was the view was the said blue plan tendered by the Defendant herein.
   
7. The Plaintiffs' contend and will contend that the learned Judge's finding of liability against the Plaintiffs in the abovementioned Civil Suit No.: MT(2)-21-9-2002 was primarily premised upon the evidence led by the Defendant that the said blue plan bearing number JB-P/P/8044 (P2) had received the approval of the Pahang state exco in the year 2000.

Fraud / Perjury

1. Pursuant to a report of corruption, the files of inter-alia the Pekan District land office pertaining to the parcel known as PT 6959 Mukim Bebar were seized by the Pahang State Anti Corruption Agency ("ACA"). This seizure, the Plaintiffs contend occurred prior to the commencement of the abovementioned trial in Civil Suit No.: MT(2)-21-9-2002.
   
2. As a result of it's investigations, the 1^st Plaintiff has discovered that the Pahang state exco at the exco meeting held on 5/4/2000 pursuant to its decision MMK 5/2000 had approved a plan as contained in enclosure 22 in the Pekan District land office file bearing number PTP7-1015.
   
3. Sometime on / or about the 7/11/2008, just after the state ACA had returned the Pekan District land office file no. PTP7-1015 to the district land office, the legal Advisor for the 1^st Plaintiff had the occasion to check the relevant file and discovered that the said enclosure 22 in file number PTP7-1015 in fact referred to a letter dated 17/7/1998 from Messrs "Jurukur Bersatu", licensed surveyors, to the Pekan Land Administrator. The said letter referred to plan no. JB-P/P/8044. However the said plan No JB-P/P/8044 was mysteriously missing from the said file.
   
4. Upon checks done with the Pahang state ACA whom had made a copy of the Pekan district land office file number PTP7-1015, the 1^st Plaintiff has now obtained the enclosed plan No JB-P/P/8044 which was the plan approved by the Pahang state exco in it's meeting dated 5/4/2000.
   
5. The enclosed plan No JB-P/P/8044 the Plaintiffs have now discovered is similar to the said yellow plan approved by the Pahang state exco in 1998.

Premised on the abovementioned, the Plaintiffs have since discovered that the Defendant has deceived the Kuantan High Court in Civil Suit No.: MT(2)-21-9-2002 and correspondingly inter-alia the Defendant's 1^st witness, the said Lee Sin has committed perjury before the Kuantan High Court.

1. The Plaintiffs contend and will contend that the testimony of the Defendant's 1^st witness, the said Lee Sin, were false and untrue. The specific particulars of the perjury committed by the said Lee Sin.
   
2. The Defendant's 1^st witness the said Lee Sin at the time when the Statements were made in Court knew them to be false and untrue and/or made the statements in the absence of any genuine belief that it is true.
   
3. The Plaintiffs contend and will contend that the documents used at the trial by the Defendant were not what they purported to be and correspondingly the trial was tainted with fraud. As a result of the purported evidence led before the Court, the Plaintiffs contend that the Court was deceived into arriving at it's findings pertaining to the concession approved by the Pahang state exco in the year 2000.

Particulars of deceit

1. Tendering into evidence plan bearing number JB-P/P/8044 (P2) as the plan approved by the Pahang state exco in the year 2000.
   
2. Withholding from the Kuantan High Court the evidence of the surveyor who prepared plan bearing number JB-P/P/8044 (P2).
   
3. The presentation of false testimony in Court.
   
4. Tendering into evidence a comparison of 2 (two) plans as per page 5 of the Plaintiff's (now Defendant) Bundle of Documents.
   
5. The presentation of evidence before the Kuantan High Court detailing a shortage of 3000 acres of purportedly virgin forest wherein the Defendant was not allowed to extract timber.
   
6. The presentation of evidence of purported trespass inside the parcel delineated by the said blue plan bearing number JB-P/P/8044 (P2).
   
7. The presentation of evidence of purported damage suffered inside the parcel delineated by the said blue plan bearing number JB-P/P/8044 (P2)
   
8. As a result of the purported evidence led before the Court, the Plaintiffs contend that the Court was deceived into arriving at it's findings pertaining to the concession approved by the Pahang state exco in the year 2000. The Plaintiffs contend that this deception had spread to and infected the whole body of the Judgment dated 25/5/2007.
   
9. the Plaintiffs further contend that the facts and evidence pertaining to the actual approval for the concession granted by the Pahang state exco on 5/4/2000 were not before the Kuantan High Court during the trial at Civil Suit No.: MT(2)-21-9-2002.

Fresh evidence are now discovered and have also been particularised in the new Writ & Statement of Claim under the heading :-

Discovery of fresh evidence

Wherefore the Plaintiffs claim as follows:-

1. An order that the Judgment of the High Court of Malaya at Kuantan in the state of Pahang in Civil Action No. MT(2)-21-9-2002 entered on 25/7/2007 be set aside and/or rescinded.
   
2. A declaration that plan no. JB-P/P/8044 was the plan approved by the state exco of Pahang on 5/4/2000 in respect of the concession of 10,000 acres in Kampung Nenasi, Mukim Bebar in the District of Pekan, Pahang and consequently the Defendant's claim in High Court of Malaya at Kuantan Civil Suit No. MT(2)-21-9-2002 be dismissed.
   
3. In the alternative, an order that a fresh trial be commenced at a time and date to be fixed in respect of the High Court of Malaya at Kuantan Civil Suit No.: MT(2)-21-9-2002.
   
4. A declaration that all proceedings undertaken by the Defendant to enforce the order of the Kuantan High Court dated 25/7/2007 is a nullity.
   
5. Damages.
   
6. Aggravated and / or Exemplary Damages.
   
7. All other consequential and necessary orders to give effect to the order made herein.
   
8. Any further relief in which this Honourable Court deems proper and / or necessary.
   
9. Costs for the proceedings herein and in High Court of Malaya at Kuantan Civil Suit No.: MT(2)-21-9-2002.

Dated the 22^nd of December 2008

Solicitors for the Plaintiffs

We will have to wait for the outcome of the new Writ & Statement of Claim already filed by State of Pahang as stated above. The earlier claim by SGM will be challenged in Court and new evidence will be produced. If the Court were to later on declare that the claim by SGM is a nullity, SGM will have to suffer serious consequences...