In delivering the Court of Appeal’s unanimous ruling, Justice S Nantha Balan said there was a serious misapprehension of evidence which warrants appellate intervention.

“The trial judge ignored vital evidence, in particular, the testimony of Veronica Foo before the domestic inquiry panel and the bank’s stance vis-à-vis the charge of serious misconduct against (former bank clerk) Johari Mohamed,” he said.

Foo was the bank’s head of investigation audit.

However, the bench which also comprised Justices Azizah Nawawi and P Ravinthran, only awarded the appellants RM10,000 as nominal damages.

The appellants, who were represented by Shafee Abdullah, were allowed costs of RM500,000.

On July 29, 2019, the High Court ruled that NFC, its chairman Salleh Ismail, and subsidiary companies – National Meat & Livestock Corporation Sdn Bhd and Agroscience Industries Sdn Bhd – had failed to prove their case against the bank on a balance of probabilities.

Salleh is the husband of former Wanita Umno chief Shahrizat Abdul Jalil.

Initiated in 2012, the suit alleged that the bank had breached confidentiality by allowing details of banking transactions to be revealed by the then PKR vice-president Rafizi Ramli.

They claimed their business reputation and credibility suffered irreparable loss and damage due to the various breaches of statutory duties owed by the bank pursuant to the Banking and Financial Institutions Act 1989 (Bafia).

They also claimed that their leaked bank account information was used by Rafizi on March 7, 2012, to bolster allegations that they had leveraged a government loan to buy eight KL Eco City properties.

They had sought RM560 million in damages from the bank.

Domestic inquiry

The plaintiff’s case in the High Court is that details of the accounts were accessed from a bank computer between 9.25am and 9.45am on Feb 16, 2012.

They said Johari, a clerical staff, was then subjected to a domestic inquiry for leaking information to third parties and Rafizi was able to hold a press conference on March 7, 2012, whereby these banking details were made public.

Nantha said CCTV footage showed that Johari put the printed documents in an envelope, kept it in his drawer, and took it with him when he left the office on Feb 16, 2012.

The judge said the domestic inquiry panel was convinced that Johari had committed the act(s) of misconduct and found him guilty, leading to his resignation.

Nantha said Foo testified at the domestic inquiry and gave evidence in favour of the bank to make out a case that Johari was guilty.

However, he said Foo did not state during the trial in the High Court that the impugned documents were of the bank.

“Clearly Foo’s testimony during the trial was fundamentally at variance from what she said before the domestic inquiry panel. But the trial judge did not consider this part of the evidence, which in itself was a serious misappreciation of vital evidence,” he said.

Had all evidence been carefully considered, Nantha said, the trial judge would have concluded that Foo’s answer that the impugned documents were not the bank’s was not credible.

“Looking at all the circumstances, it would take very little to tilt the probabilities in favour of the conclusion that it was Johari who had handed over the impugned documents to third parties, and these then eventually found their way into Rafizi’s hands. The rest is, as they say, history.”

Lawyer Poh Choo Hoe, who appeared for the bank, said he would obtain his client’s instructions whether to file an appeal in the Federal Court.

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