Wednesday, September 22, 2021

Indira Gandhi’s suit against IGP, 3 others to go for full trial

High Court judge Mohd Nazlan Mohd Ghazali has dismissed the application by the IGP, police, home ministry and government to strike out the suit against them.

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The Kuala Lumpur High Court today ordered that a full trial be held for the suit filed by kindergarten teacher M Indira Gandhi against the inspector-general of police (IGP) and three others over the authorities’ alleged failure to arrest her ex-husband and return her daughter who was abducted by him.

This follows the decision by justice Mohd Nazlan Mohd Ghazali dismissing an application by the IGP, police, home ministry, and government to strike out Indira’s suit.

In his judgment, Nazlan said he found that the suit filed by Indira for a declaration and damages against the first defendant – the IGP – for the tort of nonfeasance in public office and against the other defendants for being vicariously liable in respect of the enforcement of the committal order could not be said to be vexatious, frivolous or an abuse of the court process.

“This case is not obviously unsustainable to warrant a summary dismissal but instead should be allowed to be determined by way of a full trial where the parties will have the opportunity to call their witnesses and present their case.

“The striking out application is therefore dismissed,” he said in a written judgment made available to the media.

Nazlan said he found no merit in the contention of the defendants that the suit would result in a multiplicity of proceedings in view of the existence of the judicial review proceedings at the High Court in Ipoh which is still monitoring the progress of execution of the committal order.

“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. The plaintiff 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 the plaintiff 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,” he said.

As for Indira’s bid to seek 48 answers from the police over their investigations into her fugitive former husband, the court partially allowed her application, on questions related to the committal proceeding.

“In respect of the application for the proposed interrogatories, apart from those relating to the recovery order, which cannot be allowed for the reasons stated earlier, several of the other questions, most of which require a ‘yes’ or ‘no’ answer, would in my view serve the legitimate and clear litigious purpose of the interrogatories to obtain admissions which would reduce the issues in dispute.

“The need to call additional witnesses would decrease and the examination of relevant witnesses would be shortened, thereby saving costs and expenses. It is also observed that in his opposition to this application, the first defendant did not aver that the answers to the interrogatories are deemed privileged,” he said.

The judge ordered the defendants to pay a total of RM4,000 in costs for the striking-out order and RM1,000 for the interrogatories application and set Dec 15 to hear the suit.

Senior federal counsel Andi Razalijaya A Dadi and federal counsel Safiyyah Omar represented the defendants while lawyer Rajesh Nagarajan acted for Indira.

In her suit filed on Oct 28 last year, Indira, 46, claimed that the IGP had deliberately and negligently ignored the mandamus order from the Federal Court and failed to investigate or take appropriate action to return her daughter, Prasana Diksa, to her.

She claimed that all of the defendants had a role to play in making decisions or ordering the police to execute the committal warrant against Muhammad Riduan as ordered by the Federal Court on April 29, 2016.

She also contended that the behaviour of all the defendants had directly caused her separation from her youngest daughter, who is now 13, to continue until today and that their behaviour had also caused Riduan to flee.

She is seeking RM100 million in general, aggravated and exemplary damages, as well as a declaration that the first defendant – the IGP – had committed the tort of nonfeasance in public office, and that the second, third and fourth defendants were also vicariously liable for the tort of nonfeasance committed by the first defendant.

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