PUTRAJAYA: The Court of Appeal here Monday (Aug 24) dismissed kindergarten teacher M. Indira Gandhi's appeal over the High Court's dismissal of her RM100mil nonfeasance lawsuit against the police, Home Ministry and the government over allegedly failing to arrest her ex-husband and return her daughter.
A three-member panel comprising Justices Mohamed Zaini Mazlan, Faizah Jamaludin and Mohd Radzi Abdul Hamid, in a unanimous decision, held that the appeal failed as Indira could not prove the causal connection required for an award of private-law damages.
Justice Faizah said Indira has to prove on the balance of probabilities that an actionable omission was the effective cause of the whole or an identifiable part of the loss claim.
"In practical terms, the appellant (Indira) had to show that, but for an identified omission, K. Pathmanathan (whose Muslim name is Muhammad Ridhuan Abdullah) would probably have been apprehended, Prasana Diksa recovered or an identifiable part of the loss avoided," she said.
Justice Faizah said private law damages compensate loss caused by an actionable wrong as they are not a freestanding response to unsatisfactory administrative performance.
She said Prasana Diksa was taken and the separation of mother and child began years before the court orders were made in 2014 and in 2016, adding that the respondents (the police, Home Ministry and the government) did not cause the original taking or initial separation.
"We do not doubt the reality of appellant's (Indira's) pain, anxiety and continuing sense of injustice. The requirement of causation does not diminish that suffering. It identifies the loss for which the law may require a defendant to answer as the consequence of an actionable wrong," she said.
Justice Faizah, said the appeal does not fail because the police's response was shown to be satisfactory, because the appellant lacked a direct and personal interest in the execution of the warrant or because delay in the performance of a statutory duty is legally inconsequential.
She said there were "material deficiencies" in the police's performance adding that there was no contemporaneous command or direction issued by the IGP within the stipulated seven days was produced.
"Nothing in grounds should be understood as conferring a general immunity upon the police or as suggesting that a failure to obey and execute lawful orders and warrants of the courts is legally inconsequential," she said, adding that court's conclusion is confined to the private-law claim as pleaded by Indira and to the evidence adduced in the appeal and that it does not diminish the continuing statutory duty of the police to execute the warrant of committal.
Indira filed the lawsuit on Oct 28, 2020, naming former inspector-general of police (IGP) Tan Sri Abdul Hamid Bador, the police, Home Ministry, and the government as defendants. She sought a declaration that Abdul Hamid, the IGP at that time, had failed to take all necessary steps to apprehend ex-husband Pathmanathan and retrieve her youngest child Prasana Diksa, thereby committing the tort of nonfeasance in public office.
In 2009, Pathmanathan unilaterally converted his three children to Islam without Indira Gandhi's consent before seeking custody through the Syariah Court. The Federal Court later ruled in 2018 that the children's unilateral conversion was null and void. Prasana Diksa was taken by Pathmanathan when she was 11 months old, shortly after her conversion.
In 2010, the Ipoh High Court granted Indira full custody of the children In 2016, the Federal Court affirmed the High Court's mandamus order directing the police to apprehend Pathmanathan and recover Prasana Diksa for return to Indira. Her two other children were returned to her in 2010.
Outside the court, Indira said all she want is to see her daughter.
"Whatever she wants to be or whoever she wants to be with is not an issue. I just want to see her," she said. - Bernama
