The Court of Appeal today dismissed an appeal by the inspector-general of police (IGP) and three others to strike out a nonfeasance lawsuit against them by a kindergarten teacher over their alleged failure to arrest her ex-husband and return her daughter who was abducted by him.
A three-member panel comprising justices Hanipah Farikullah, M Gunalan and Ahmad Zaidi Ibrahim held that the suit filed by M Indira Gandhi should be dealt with by way of a trial.
Besides the IGP, the others named as the defendants in the suit are the police, the home ministry and the government.
"We are of the considered view that based on the facts and circumstances of this case, there are complex issues of law including issues on the interpretation of Section 7 (2) of the Government Proceedings Act, Section 20 of the Police Act and also on the common law position on the tort of nonfeasance by a public officer," said Hanipah.
She said Indira's claim was not an obviously unsustainable case to warrant it being struck out.
There was no error by the High Court in its decision to dismiss the striking-out application brought by the IGP and the three others, she said, adding that there was no merit to the government's appeal.
She also ordered the defendants to pay Indira RM10,000 in costs and set Sept 14 for case management at the High Court.
On July 16 last year, then High Court judge Mohd Nazlan Ghazali who is now a Court of Appeal judge dismissed the government's application to strike out Indira's suit claiming that the IGP had deliberately and negligently disregarded a mandamus order issued by the Federal Court by failing to investigate or take appropriate action to return her youngest child Prasana Diksa.
She alleged that the IGP, the home ministry and the government had a role to play in making decisions or ordering the police to execute the committal warrant against Muhammad Riduan Abdullah, formerly known as K Pathmanathan, as ordered by the Federal Court on April 29, 2016.
She is seeking general, aggravated and exemplary damages and a declaration that the IGP had committed a tort of nonfeasance in public office, and that the home ministry and the government were vicariously liable for the tort of nonfeasance committed by the IGP.
Prasana was taken away by Riduan when she was 11 months old, shortly after he converted to Islam.
In 2009, Riduan unilaterally converted their three children to Islam without Indira's consent before going to the Shariah Court to obtain custody of the children. In 2018, however, the Federal Court ruled that the unilateral conversion of the three children as null and void.
The Ipoh High Court in 2010 granted Indira full custody of the children.
In 2016, the Federal Court affirmed the mandamus order issued by the High Court directing the police and the appellants to apprehend Riduan and retrieve Prasana to be returned to Indira.
Senior federal counsel Andi Razalijaya A Dadi appeared for the government at the proceedings today, which were conducted online, while a team of lawyers led by Rajesh Nagarajan represented Indira.