The Federal Court was today urged to expunge adverse remarks made against former finance minister Daim Zainuddin and business tycoon Halim Saad in a judgment by the Court of Appeal because the latter was 'obsessed' and had a motive for doing so.

Counsel for the two submitted that appellate judge Gopal Sri Ram's statements that Halim and his former business partner, Anuar Othman, had siphoned RM32.5 million from Metramac under the alleged patronage of Daim were not established, documented or discussed in court.

Cecil Abraham, counsel for Daim, said the statements were unjustified and not relevant to the issue of the appellate court awarding RM65 million to Fawziah Holdings for Metramac's breach of contract on advertising rights.

"The Court of Appeal's obsession (on Daim's involvement) prevailed throughout its judgement. Where is the basis for this statement? Where is the evidence?"asked Abraham.

Metramac - the concessionaire of the East-West Link Expressway and the Sungai Besi Expressway - is appealing against the Court of Appeal's ruling to pay Fawziah Holdings the RM65 million for the breach of contract.

In ordering the award, Gopal Sri Ram had made the statements which implicated Halim, Anuar and Daim. Fellow Court of Appeal judges Hashim Yusoff and Zulkefli Makinudin concurred with his judgment.

Abraham submitted that the remarks on Daim in the Court of Appeal's judgement should be expunged because the court had come to its conclusions on the former finance minister based on 'bare allegations' made by Fawziah Holdings' counsel, Cyrus Das.

"There was no evidence of Daim's patronage and yet the Court of Appeal made an emotive judgment which is not relevant to the issues before to the court," he said.

'A frolic'

In his submission, Tommy Thomas, counsel for Halim, asked if the appellate court had a motive in making such disparaging remarks against his client.

He said that if the dishonest misappropriation of the RM32.5 million was true, the figure would not have been filed as part of Metramac's audited financial statements.

"Insofar as Metramac is concerned, the said RM32.5 million never belonged to it but was received from the government with instructions to pay the shareholders of Metramac," he said.

Both counsel said that Daim and Halim never had the opportunity to defend themselves and there was no evidence to justify the Court of Appeal's remarks concerning the trio.

Das, in responding, said that he disagreed with the assumption that the appellate judges 'went on a frolic' of their own in deciding that Daim and Halim were involved in the case.

"The interveners (Daim and Halim) are mentioned several times in evidence adduced at the High Court, both oral and documentary [...] it already forms part of the courts records," he said.

Hearing ends

In deciding on the outcome of this appeal, the apex court will deliberate on three issues one of which is judicial bias on the part of the Court of Appeal when making its judgment. The other two issues are:

Whether the creation of trust under the sale agreement amounts to an illegal reduction of capital; and

Whether the test adopted by the Court of Appeal was correct in its determination that clause 8 of the Signage Agreements is a stipulation by way of penalty named in contract for purposes of Section 75 of the Contract Acts 1950.

Daim and Halim are appealing for Gopal's specific remarks against them to be expunged from the Court of Appeal decision.

The hearing, before a five-member panel of judges led by chief justice Ahmad Fairuz Sheikh Abdul Halim ended today with the court reserving its decision for a later date.

Metramac background