However, the former prime minister and former Umno members Khairuddin Abu Hassan and Anina Saadudin will have to obtain leave to appeal against the Court of Appeal ruling.
Their lawyer, Mohamed Haniff Khatri Abdulla, filed the leave application at the Federal Court registry this afternoon by framing four legal questions.
One of the questions raised is whether the civil wrong of misfeasance in public office and breach of fiduciary duty concerned the nature of the work or the position held by the person.
The apex court only gives leave if the questions posed are novel and of public importance.
On Aug 30, the Court of Appeal dismissed the appeal by Mahathir, Khairuddin and Anina as lacking in merit.
Justice Idrus Harun, who chaired a three-man bench, said they agreed with the submission made by Najib’s lawyer Cecil Abraham and affirmed the High Court order.
The Court of Appeal has yet to deliver its written grounds.
On April 28, the High Court struck out the trio’s suit against Najib on 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.
Bakar said Article 132 (3) states that public service excludes 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,” Bakar had said.
In their statement of claim, filed in March last year, Mahathir, Khairuddin and Anina said they were among the rightful parties to take action against Najib.
They traced the chronology of the 1MDB investigation, 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.