The Federal Court held today that toll concessionaire Metramac Corporation Sdn Bhd could proceed to seek leave to appeal against an order which has already been dissolved, the matter not merely being academic.

The court made the ruling after dismissing a preliminary objection raised by Fawziah Holdings Sdn Bhd who argued that the court has no jurisdiction to hear Metramac's application for leave to appeal against an injunction which had been dissolved by the Court of Appeal last week.

"We are unanimous in our decision. It is not academic and the preliminary objection is overruled," said Chief Justice Ahmad Fairuz Sheikh Ab Halim who headed a rare five-member panel of judges.

The panel - the others of whom were Federal Court judges Pajan Singh Gill, Alauddin Mohd Sherif, Richard Malanjum and Augustine Paul - then proceeded to hear the parties proceed with their arguments on the leave application which will continue on March 27.

On Oct 25, 2005, Court of Appeal judges Gopal Sri Ram, Hashim Yusoff and Zulkefli Ahmad Makinuddin issued a mareva order under Section 44 of the Courts of Judicature Act restraining Metramac from disposing its assets up to RM100 million.

Metramac has since filed for leave to appeal against the order questioning whether the appellate court could issue such an order which is not appealable to the Federal Court.

However, before the matter was heard by the apex court, Gopal had on March 1dissolved the order after granting Metramac a conditional stay of execution on the execution of RM65 million compensation awarded to Fawziah Holdings for loss of advertising rights.

No jurisdiction

Fawziah Holding's lawyer Dr Cyrus Das, in making the preliminary objection today, argued that the court has no jurisdiction on Metramac's leave application as the matter was now academic since it sought for relief against an order that has been dissolved.

"This leave application stands entirely upon the order issued by the Appeals Court on Oct 25, 2005. Since that order no longer exists, therefore this leave application has become academic.

"The matter would now make no difference for there would be arguing for a dissolution of a judgment that has been dissolved," said Das.

At this point, the court asked Das whether the dissolution would affect the contempt proceedings Fawziah Holdings filed against Metramac directors over their failure to comply with the Oct 25, 2005 injunction.

Das replied that the dissolution of the order will not affect the contempt proceedings as it revolves on the directors' failure during the time when it was still enforced.

At this juncture, Paul asked: "How can you say that it is academic when action can still be taken for the failure of not complying to the order?"

Das replied that the court should not be "too concerned" with the contempt proceedings which will be heard at the Appeals Court.

"The applicant's (Metramac's) complaints may be that the order was wrongly made but that does not mean that it need not comply with it. As long as the order is alive, there a need for it to be complied with.

"But the issue here today before this court is whether the order is still enforced today - which it longer is - and in that circumstances whether it has jurisdiction to hear the matter."

As to whether the court had wrongly issued the order, Das argued that Metramac can still bring up the issue at the contempt proceedings.

'Wonderful opportunity'

Metramac's counsel Muhammad Shafee Abdullah countered that the leave application was not an academic act because although the order was now dissolved, the legal issue which arose from the order was "still alive".

"This is a decision that is of great importance because it involves a general interpretation of Section 44 of the Courts of Judicature Act. On that issue, it is now academic."

He also said that the issue cannot be academic as it was prejudiced against his client which was forced to set aside assets worth up to RM100 million for the purpose of meeting the eventuality of the execution of the RM65 million judgment..

He urged the bench not to miss the chance to clear the issue of Section 44 of the Courts of Judicature Act on whether the Court of Appeal has an original jurisdiction to issue an order under the provision.

"It is a wonderful opportunity for this court, being a five-men bench, to clear the issue of Section 44 because the Court of Appeal continued to run completely off tangent when it said that it has original jurisdiction when it does not have original jurisdiction.

"We need to settle the issue due to developments at the Court of Appeal. I dare to say that it is almost a daily occurrence that an application under Section 44 is made at the Court of Appeal."

On Jan 12, the Court of Appeal ordered Metramac - the concessionaire of the East-West Link Expressway and the Sungai Besi Expressway - to pay RM65 million to Fawziah Holdings for loss of advertising rights.

The case attracted public attention when Gopal - in his judgment - accused tycoon Halim Saad and his former business partner Anuar Othman of siphoning RM32.5 million from Metramac under the patronage of former Finance Minister Daim Zainuddin

Halim and Daim has since denied the allegations.

The duo has since applied to act as interveners to the case at the Federal Court to expunge the observations made by Gopal. Their application will be heard tomorrow.