A logging company today failed to obtain leave from the Federal Court to compel the Pahang menteri besar to pay it RM70 million.

This came despite the company having obtained a High Court ruling in 2007 ordering the Pahang government to pay the sum.

On May 25 that year, the High Court in Kuantan ordered the Pahang government and the Forestry Department director to pay Seruan Gemilang Sdn Bhd the sum, which includes interest on the original claim of RM37.127 million in the action the company filed in 2002.

The High Court found the Pahang government to be in breach of a logging concession contract related to the extraction of timber from a 10,000-acre plot of land belonging to Umno in Mukim Bebar in the Pekan district.

The Pahang government filed an appeal against the decision, but this was struck out by the Court of Appeal on Feb 13, 2008.

The state government also failed to obtain leave to appeal from the Federal Court on Sept 17, 2008.

After the payment order was made, Seruan Gemilang applied for a order of mandamus to name the menteri besar as payee for the money owed to the company.

MB ordered to pay up within 14 days

On April 20, 2009, the High Court in Kuantan ordered Menteri Besar Adnan Yaakob to pay Seruan Gemilang RM67 million within 14 days.

However, Seruan Gemilang found the tables turned against it in the Court of Appeal, which allowed Adnan's appeal on grounds that the state financial officer should have been named in the mandamus order.

Today, the apex court refused to allow Seruan Gemilang's merits to be heard for getting the payment from the menteri besar.

In a majority two-to-one decision, the apex court dismissed the company's application.

President of the Court of Appeal Justice Alauddin Md Sheriff said the application was dismissed because Seruan Gemilang failed to pass the threshold for the court to grant leave (permission).

"The court also orders the applicant (Seruan Gemilang) to pay costs of RM10,000," he said.

'Application did not pass threshold'

Justice Alauddin said he agreed with Federal Court judge Zulkefli Ahmad Makinuddin that the firm's application did not pass the threshold set under Section 96 of the Courts of Judicature Act. Justice James Foong dissented.

The threshold is for the court to be convinced that there should be at least a prima facie case for the merits of an appeal to be heard.

The decision today resulted in Seruan Gemilang suffering a major setback as to how it can enforce the High Court decision.

adnan the man The order of mandamus obtained from the High Court in Kuantan on April 20, 2009, directed Adnan ( left ) to pay RM67 million, a sum that had accumulated on interest from the 2002 suit, within 14 days.

The Pahang menteri besar filed an appeal two days later and on Oct 9, 2009, the court allowed the appeal on the grounds that the state financial officer should rightfully be named in the order of mandamus and that the order should be made within 40 days.

This resulted in today's proceeding, which the apex court dismissed.

The claim by Seruan Gemilang is already accumulating interests of RM8,000 a day, pending full payment by the Pahang government.

A director of the company had earlier this year urged the state government to settle the matter.

Should the state financial officer be made to pay Seruan Gemilang, he asked, despite him being a civil servant? Or should the state government be made to pay?

MB or state financial officer?

During today's proceedings, Seruan Gemilang's counsel J Amardas applied for leave on the basis that the MB was the rightful person named, since he held the state financial exco position.

"He (the MB) is under duty to direct that the judgment sum against the state be paid," Amardas submitted.

While there have been judgments obtained against states in the peninsular, he said, there had been no execution of proceedings as these could only be instituted against a state government by way of a mandamus order.

"This is stated in the case of Minister of Finance for Sabah vs Petrojasa Sdn Bhd. However, the states of West Malaysia do not have Ministers of Finance. The question then is, who is the right party to be named in the mandamus order to pay for any judgment obtained against a state government?

"There has been no case that has decided on this point. For this reason, the applicant (Seruan Gemilang) has proposed four questions of law to be decided and leave should be granted," Amardas said.

He said the appellate court judgment had raised a general principle of law which the apex court had not decided on before.

He went on further to say that the state financial officer could not be named in the action as Section 44 of the Specific Relief Act prohibited the issue of a mandamus order against a public servant.

Appearing for the Pahang MB, lawyer Muhammad Shafee Abdullah argued that all three Court of Appeal judges had ruled that the wrong party had been named.

"The appellate court also ruled that the application for leave to seek an order of mandamus was filed out of time and therefore fatal," he said, adding it was against the appellate's court decision that the company was seeking leave to appeal.