Appellate court dismisses Govt’s appeal to strike out Indira Gandhi’s RM100m suit

Appellate court dismisses Govt’s appeal to strike out Indira Gandhi’s RM100m suit
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PUTRAJAYA (Sept 7): A three-member Court of Appeal bench on Wednesday (Sept 7) dismissed the appeal by the inspector general of police (IGP), the police, the Government and the Home Ministry to strike out a nonfeasance suit by kindergarten teacher M Indira Gandhi, whose youngest daughter had been snatched away by her former husband after he converted to Islam.

Judge Datuk Hanipah Farikullah, who led the bench, in the unanimous decision said there was no error by the High Court judge to dismiss the striking out application by the appellants (the Government, police, IGP and Home Ministry).

“The bench finds there is no merit in the appeal. We are of the view that the High Court judge was correct in his finding on whether the appellants are liable for the tort of nonfeasance that needs to be dealt with through a trial.

“The facts and circumstances are complex issues of law, which need to be ventilated, including covering Section 7(2) of the Government Proceedings Act, the Police Act and also the common law regarding the tort of nonfeasance. We are of the considered view this case is not an obvious case to order a striking out. Hence, we dismiss the appeal,” she said in online proceedings on Wednesday.

The bench that also consisted of judges Datuk M Gunalan and Datuk Ahmad Zaidi Ibrahim ordered the Government to pay costs of RM10,000 to Indira.

Hanipah also fixed the date of case management of the suit as Sept 14 in the High Court.

Indira’s counsel Rajesh Nagarajan, who appeared with Sachpreetraj Singh and Pavitra Loganathan, when contacted, confirmed the outcome of the Court of Appeal’s decision.

The Government and the other respondents were represented by senior federal counsel Andi Razali Jaya A Dadi.

In July 2021, then High Court judge Datuk Mohd Nazlan Mohd Ghazali dismissed the Government’s striking out application, as it could not accept the Government's contention that the suit is a multiplicity of proceedings.

This followed Indira having ongoing judicial proceedings in the Ipoh High Court, which is still monitoring the progress of the execution of the committal order that was issued against her former husband K Pathmanathan @ Muhammad Ridhuan Abdullah in 2014.

“This is primarily because both the cause of action of the tort of nonfeasance and the remedy of damages in this suit have never been raised before in any other proceedings. Indira Gandhi in the judicial review was granted the mandamus in respect of the committal order, which was affirmed by the Federal Court.

“That does not, however, bar her from instituting a civil claim like presently to seek damages for the loss she claims to have suffered, as a result of the alleged nonfeasance of the defendants in respect of the mandamus and committal order,” Nazlan said in delivering his judgement.

Nazlan has now been elevated to the Court of Appeal.

Indira, 46, sued the defendants in October 2020, over their alleged failure to locate and return her now 12-year-old missing child, Prasana Diksa.

In her statement of claim, Indira said the IGP had refused to adhere to a committal order that required Ridhuan, 52, to be committed to prison until Prasana is delivered to her. She also accused the police of ignoring a recovery order that required the court bailiff and police to search for, retrieve and return Prasana to Indira. Both orders were issued by the Ipoh High Court.

Indira also claimed the IGP had failed to adhere to the orders on the basis that he was faced with conflicting orders — namely an order by the Perak Shariah High Court that granted custody of the couple's three children to Ridhuan, and an order by the Ipoh High Court that granted custody to Indira. As such, she claimed the IGP had committed the tort of nonfeasance in public office by failing to enforce the orders.

Indira and Ridhuan have three children, including Prasana. But in 2009, Ridhuan converted to Islam and then took Prasana away a year later, which resulted in a protracted court battle for custody of the child.

The Federal Court in 2016 affirmed the mandamus order directing the police and the defendants to apprehend Ridhuan, and retrieve Prasana to return her to Indira, but the whereabouts of Ridhuan and Prasana are still unknown since 2009.

Read also:
Indira Gandhi's suit on police inaction to locate ex-husband and child goes to trial as court dismisses Malaysian govt's strike-out bid

Surin Murugiah