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PETALING JAYA: Two Sabah deputy chief ministers are among nine plaintiffs who have filed a suit against former attorney-general Tommy Thomas for allegedly mishandling a claim over the north Borneo territory by descendants of the Sulu sultanate.

They want a declaration that Thomas, who was the government’s legal adviser between June 2018 and February 2020, committed misfeasance in public office.

Apart from Jeffrey Kitingan and Joachim Gunsalam, the other plaintiffs are Sabah ministers Jahid Jahim and Ellron Angin, as well as state assistant ministers Joniston Bangkuai, Abidin Madingkir, Robert Tawfik, Julita Mojungki and Flovia Ng.

The suit was filed at the Kota Kinabalu High Court on Aug 16 while the legal papers were served on Thomas at his legal firm in Kuala Lumpur earlier this month.

In the statement of claim sighted by FMT, the plaintiffs want an injunction for Thomas to withdraw prejudicial statements and restrain him from making public remarks in relation to an arbitration award issued by Spanish arbitrator Gonzalo Stampa.

In February, a French arbitration court recorded Stampa’s decision that Malaysia must pay RM62.59 billion (US$14.92 billion) to the descendants of the Sulu sultan for violating an 1878 agreement.

Malaysia is challenging the award made by Stampa, who first started the case in Madrid and later moved it to Paris.

The plaintiffs also want Thomas to pay US$14.92 billion as a result of his action, or inaction.

They said the Sulu descendants had served a preliminary notice of intention to begin arbitration in November 2017 and then filed an application for a judicial appointment for an arbitrator in a Madrid superior court of justice in February 2018.

In November 2018, Malaysia was not represented in the application and the court ruled that Putrajaya was in default of the application.

In May 2019 , the court appointed Stampa as the sole arbitrator. He then issued notices to Malaysia to attend a conference in Madrid on Oct 24 and Oct 25, 2019.

The plaintiffs said Thomas failed to respond to the notices or attend the meeting to defend Malaysia’s position.

They said Thomas also decided that Malaysia should not take part or intervene in the arbitration proceeding to challenge Stampa’s jurisdiction.

They said this resulted in Stampa issuing an award for the claim to the Sulu descendants.

They also said Thomas wrote a letter to the descendants’ lawyer, Paul Cohen, on Sept 19, 2019, saying it was regrettable that the annual RM5,300 annual payment to the Sulu heirs had been stopped since 2013, but that Malaysia was “able and willing” to pay the arrears.

The plaintiffs, among others, contend that Thomas’ failure to properly state Malaysia’s legal position led to the award of the US$14.92 billion.

They said the Sept 19 letter was severely flawed and woefully prejudicial to Malaysia, while Thomas did not realise that the arbitration was an assault on the nation’s sovereignty and commercial rights abroad.

They also said Thomas issued the letter without proper consultation nor approval of the Cabinet then.

They said Thomas’ subsequent media statements about the issue this year were detrimental to Malaysia’s challenge on the award, which may be enforced in any one of the 165 countries under the New York Convention.

The plaintiffs said Thomas committed the tort of misfeasance in public office when he failed to take part in or stop the arbitral proceeding as well as issuing the Sept 19 letter.

The dispute has its origin in the 1878 Deed of Cession between the then sultan of Sulu, Sultan Jamal Al Alam, and Baron de Overbeck, the then maharaja of Sabah, and British North Borneo Company’s Alfred Dent.

Under the agreement, Jamal ceded sovereignty over large parts of Sabah to Dent and Overbeck, who agreed that they and their future heirs were to pay the heirs of the sultan 5,000 Mexican dollars annually.

In 1936, the last formally-recognised sultan of Sulu, Jamalul Kiram II, died without heirs, and payments temporarily ceased until North Borneo High Court chief justice Charles F Macaskie named nine court-appointed heirs in 1939.

Although Malaysia took over these payments when it became the successor of the agreement following Sabah’s independence and the formation of Malaysia in 1963, the payments – equivalent to RM5,300 a year – ceased in 2013 after an incursion by armed men into Lahad Datu, along the eastern coast of Sabah.