This Press statement was called for the purpose of clarifying the media report issued by Borneo Samudera Sdn Bhd last Sunday. The 3rd Defendant having read the newspaper article realized that it was a selective report on the court’s ruling without considering and explaining the whole judgment.
1. It was the defendant’s case that the 3rd Defendant was at all time acting in her capacity as lawyer with instructions from her clients. She took instruction or acted on instructions from the clients.
2. It was the defendants’ case that there was no coercion and it was clear to her as a lawyer at the material time all parties knew what they were entering into.
3. The defendants have filed an Appeal to the Court of Appeal against the Judgment and at the same time had also filed an application for stay of execution against the order of the judgment.
4. It was also explained during the trial as to the issue of the 3rd defendant’s ex staff acting as buyer (the 1st defendant). It has been explained by the 3rd Defendant during the trial the role and the purpose of the 3rd Defendant ex staff in the transaction and that it was in accordance to the instruction given to the 3rd Defendant. We would take the argument further during the appeal proper of this matter.
5. Borneo Samudera (BSSB) from the day of Joint Venture in 1998 until today, was and still is in possession of the 817 smallholders’ lots. The Possession was never taken away from them.
6. It is the defendant’s case and based on the instructions given to her by the smallholders, that no dividends were ever declared and given to the smallholders since they entered the JVA with BSSB between 1998 to 2005 (the material time). According to the JVA terms, the smallholders injected their lots into the JVC (Cemasjaya sdn bhd) as their equity when they signed the JVA in 1998 and in return, they would receive share certificates to the value of their individual lots. They would become shareholders of the JVC (Cemasjaya). With no more than 30% of profits to be declared by the company annually. However for 8 years (1998 to 2005) they received only advances from a third company called Bagahak Plantation Sdn Bhd, not dividends or advances from the JVC (Cemasjaya). As a result of these 8 years of non-payment of dividends the smallholders were unhappy and came to see the 3rd Defendant with their grievances on the JVA.
7. It was also explained during the trial that the 3rd Defendant after listening to their grievances, studied their documents and consulted two other senior counsels, that the 3rd defendant formed the legal opinion that BSSB had breached and repudiated the JVA.
8. It is the defendants’ case that 817 smallholders instructed the 3rd defendant that they wish to get out of the JVA and sell their lots away to salvage their losses.
9. Therefore the 817 smallholders then commenced action against BSSB in 2006, inter alia, for not paying dividends.
10. With reference to the police report as stated in the media. We were shocked to note that what was reported in the media that most of the smallholders had lodge a police report against the three defendants. It was not part of the reason for the decision and the finding of the Judge but it was reported in the media as if giving the impression that it is part of the reason for the decision. The issue of some of the smallholders police report lodge against the three defendants on the purported misleading them into signing the sales and purchase agreement are now ongoing in the Lahad Datu Arbitration.
11. We were more surprised on the issue that the smallholders were asked to sign or thumb print document in blank as stated also in the media report. (2nd last paragraph of the media report). This allegation was also not part of the consideration and finding of the court.
12. There are two arbitrations going on presently. One is in Singapore whereby the arbitrator has yet to decide on the validity, effectiveness and enforceability of the JVA. Whether the condition precedents of the JVA were fulfilled at the material time as these condition precedents were found to be contingent. The other arbitration that is going on is in Lahad Datu. The arbitrator has yet to decide, inter alia, whether the Sale and Purchase Agreements were entered legally and whether these Sale and Purchase Agreements would be binding to the parties.
Nelson W Angang
Legal Counsel Representative for YB Christina Liew