60. As to whether the 1st first defendant has paid the sum of RM1.2 million for the said shares to the deceased, the learned judge found as follows:-

"It is my finding that it is an undisputed fact that the first defendant never paid any money to the late Tunku Mansur for the said 1.2 million shares. In his defence, the first defendant pleaded that the shares to be given or acquired by the late Tunku Mansur personally in the MBO were to be divided equally between the first defendant and the late Tunku Mansur as the first defendant has agreed to pay for any acquisition price in excess of RM55 million. In support of this contention Exhibit D59 was introduced in evidence by the first defendant during the cross-examination of PW1. However, in his witness statement (DWS1), the first defendant took a different position and claimed that the late Tunku Mansur and him would share "whatever money" (as opposed to shares) that they get from BRUG and therefore the issue of him having to pay for the said 1.2 million shares never arise."

61. In relation to the issue as to whether the beneficial ownership of the said shares shall remain with, and vest with the deceased until the 1st defendant pays the said sum of RM1.2 million, the learned found as follows:-

"It is clear from the evidence of PW2 that it was agreed between the late Tunku Mansur and the first defendant that the first defendant was to hold the said 1.2 million shares for the late Tunku Mansur until the first defendant pays for them."

62. The learned judge found that the 1st defendant's testimony was not in tangent with his case as pleaded on the following issues:-

(a) his claim that he was entitled to the said shares for free;

(b) his claim that his entitlement to the said shares was due to his agreement with the deceased to pay for any acquisition price in excess of RM55 million and which agreement was only produced for the first time at the trial (exhibit D59) (reproduced earlier); and

(c) the 1st defendant's claim that he was entitled to half of the RM5 million credit given by BRUG.

In relation to these issues, the learned judge said:-

"On the first defendant's claim of having negotiated for the payment of a sum of RM5 million by BRUG to the late Tunku Mansur, I find it is not supported or borne out by the contemporaneous documents and the objective facts of this case. In fact the contemporaneous documents and the objective facts contradicted the first defendant's claim that he negotiated for the payment of the said sum of RM5 million from BRUG.

I also find that the need for the late Tunku Mansur to write Exhibit P3, the handwritten note dated 3.9.1990 from the late Tunku Mansur to the first defendant clearly shows that the first defendant was not involved in the negotiations with BRUG as the late Tunku Mansur has to explain to the first defendant in some details as to how the said RM5 million credit given by BRUG came about."

"It is also noted that in his evidence given in Civil Suit No. S4-23-22-1994 ["defamation suit"], the first defendant said that Exhibit P3 was written by the late Tunku Mansur to explain the late Tunku Mansur's entitlement to RM2.5 million from BRUG so that the first defendant could speak to BRUG on behalf of the late Tunku Mansur. At page 75 of Exhibit 130 (ie, the notes of evidence of the evidence given by the first defendant in Civil Suit No. S4-23-22-1994), the first defendant said as follows:

The late Tunku was trying to get the money from BRUG, ie, either from the first plaintiff or fourth plaintiff. When he couldn't get it on a few occasions, he asked me whether I was willing to speak to them.

The first, third and fourth plaintiffs gave the impression to the staff that this money is some kind of 'undertable money' resulting in the late Tunku facing difficulty in raising the issue again.

The late Tunku then hinted that since I was the one who brought in the plaintiffs, he tried to convince me that this RM2.5 million was his entitlement as gratuity