Datuk Sir Mayor Tom
If the transfer of Sabah by Great Britain to Malaysia in 1963 constituted a breach of the provisions of the 1878 Lease as the Government of the Sultan of Sulu did not consent to the transfer to Malaysia. Then it would follow that Great Britain would liable for breach of 1878 Lease and should therefore be sued for damages and declare that transfer was void ab initio and therefore cannot be sustain…. For that financial damages from GB should computed on how much the Philiippine have lost in revenue from the time of the illegal transfer. And since there was no legal transfer then Malaysia does not have a leg to stand on. In the lease agreement the tenant, Great Britain had breached the lease provision by;
• Allowing Malaysia to use the premises (Sabah) for a purpose outside the permitted use; and
• Which could also constitute Great Britain of subletting the premises without consent of the Sultanate of Sulu.
The Sultanate of Sulu should have the option of: Exercising the right of re-entry or forfeiture by;
• Terminating the lease for repudiation or breach of an essential term;
• If the breach is capable of remedy, as in our current case the lease may permit the landlord (The Sultanate of Sulu) to remedy the breach and recover the cost from the tenant.
The common law doctrine of repudiation.
It is well settled law that ordinary contractual principles apply to all leases.
In our current situation the repudiatory conduct of Great Britain consist of the following:
1. Great Britain intentionally no longer wishes to be bound by the lease; and
2. Great Britain breached a fundamental or essential term of the lease.
Great Britain is therefore liable to the Sultanate of Sulu.
Perhaps Great Britain should be sued in the ICJ and have Malaysia as co respondent. My two cents.