The Court of Appeal, in a brief judgment, ruled that the appeal by former Umno members, Mahathir, Khairuddin Abu Hassan and Anina Saadudin had no merits.
“We agreed with counsel (for Najib) Cecil Abraham’s submissions and affirmed the High Court order on April 28,” Justice Idrus Harun said, adding that it was an unanimous decision.
The other judges in the three-man bench were Justices Rahman Sebli and Vernon Ong.
The appeals court also ordered the plaintiffs to pay cost amounting to RM20,000.
In an immediate reaction, Mahathir’s lawyer, Haniff Khatri Abdulla, said they would be appealing the decision today.
Earlier, Abraham told the court that Mahathir and the others had failed to satisfy the terms under the common law to bring an action for misfeasance in public office.
“The defendant (Najib) who was named in the lawsuit should be a public officer and exercise his power in the public office.
“The three who took the action against him must prove that they have suffered losses from the defendant’s action,” he said, adding that the High Court had been right in its decision to strike off the suit against Najib as the prime minister is not a “public officer”.
However, Haniff argued that the court should not limit itself to the interpretation of the term “public officer” and “public office” based on local law and the Federal Constitution.
“The tort of misfeasance is an established tort under the common law and was not created under any of the Malaysian laws,” he said.
Haniff added if aggrieved parties cannot bring an action against a person holding a public position in the executive and administrative branches, then this would create an immunity against them.
“There would be no check and balance then,” he said.
On April, the High Court struck out the trio’s suit against Najib, on the grounds that he is “not a public officer although he is in public office”.
In the 31-page written judgment, Justice Abu Bakar Jais said “public officer” and “public office”, in the Interpretation Act was only applicable to the class of civil servants as stated under Article 132 (1) of the Constitution.
“Clearly the defendant (Najib) is not a member of any services listed in the Constitution,” he said.
Justice Abu Bakar added Article 132(3) had stated the public service excluded the office of any member of the administration in the Federation or state.
He said Article 160 (2) further states that a member of the administration in Putrajaya is meant to be a person holding the office of minister (which includes prime minister), deputy minister or parliamentary secretary and political secretary.
“These provisions, he said, cumulatively would indicate that Najib was not a public officer and did not hold public office.
“It may be most surprising and quite unpalatable to swallow for many on the street that the defendant in his capacity as prime minister or minister of finance is not a public officer in public office,” Abu Bakar had said.
In their statement of claim filed in March last year, Mahathir, Anina and Khairuddin said they were among the rightful parties to take action against Najib.
They traced the chronology of the 1MDB investigations dating back to March 2015, from the formation of a special task force, to then attorney-general Abdul Gani Patail’s dismissal, and the sacking of former deputy prime minister Muhyiddin Yassin.
They sought a declaration that Najib had committed the tort of misfeasance and a breach of fiduciary duty in public office and wanted to compel Najib to return to the government the money found in his private bank accounts.