In a split ruling, a three-member Court of Appeal bench also allowed Najib’s application to adduce new evidence when the merits of the case are heard in the High Court.

Justice Firuz Jaffril said Najib had fulfilled the criteria set out in the landmark case of Ladd v. Marshall for the introduction of new evidence.

He also noted that Najib had written to six of the seven respondents named in the appeal seeking to confirm the existence of the purported addendum but received no reply from any of them.

The six respondents were the home minister, the prisons commissioner general, the attorney-general, the Federal Territories Pardons Board, the law and institutional reform minister, and the director-general of the Prime Minister’s Department’s legal affairs division.

The federal government was named as the seventh respondent in the appeal.

Firuz said that Najib had, after the High Court hearing in July, obtained a copy of the addendum from the Pahang ruler, who was the 16th Yang di-Pertuan Agong.

He added that the government had not provided any compelling rebuttal to the evidence adduced by Najib.

Justice Azhahari Kamal Ramli concurred with Firuz.

Justice Azizah Nawawi, who chaired the Court of Appeal bench, dissented.

Firuz said the findings of the High Court judge that Najib’s affidavits were based on hearsay evidence could no longer stand following the new evidence adduced by Najib, the former Pekan MP.

“Premised on the new evidence, we find the issue of hearsay can no longer stand. In a judicial review application, the applicant only needs to show that they have a case to argue premised on the fact that their interest or rights have been aggrieved.

“Here, the judicial review is not frivolous or vexatious,” he said when ordering that the case be remitted to the High Court for the substantive hearing.

The bench also allowed lawyer Shafee Abdullah’s application for the judicial review to be heard before a new judge in the High Court.

In her dissenting judgment, Azizah took the view that Najib had failed to meet the requirements set out in Ladd v Marshall for the introduction of new evidence.

She said the affidavit affirmed by Najib’s son, Nizar, on Dec 2 last year, stated that he frequently meets the Pahang ruler.

“In view of the admission that he meets the sultan frequently, it cannot be said that the fresh evidence could not have been obtained with reasonable diligence at the hearing before the High Court judge,” she said.

She also noted that there had been a delay since Nizar only obtained the addendum many months after the High Court ruling on July 3.

“Therefore, I am of the considered opinion that there is no merit to this application for fresh evidence.”

On the main appeal, Azizah said the High Court had dismissed the leave application as the evidence adduced was hearsay, since Najib had omitted to produce an affidavit affirmed by Tengku Zafrul Aziz.

In the High Court, Tengku Zafrul had applied to file an affidavit to “correct certain errors” contained in affidavits filed in the proceedings.

However, on May 2, the High Court refused Tengku Zafrul leave to do so, ruling that there was no legal provision which allowed a non-party to file an affidavit in any proceedings.

Azizah also said the High Court did not make any appealable error when ruling that affidavits affirmed by Ahmad Zahid Hamidi and Wan Rosdy Wan Ismail were inadmissible on grounds that their contents were hearsay.

She said the High Court was correct in ruling that a mandamus order could not be granted against the pardons board.

“There is no provision in the written law or the Federal Constitution that could make the board confirm or disclose any existence of a pardon order, including the addendum order,” she added.

The judicial review application will come up for case management in the High Court on Jan 13.