KUALA LUMPUR: The High Court here has ordered a full trial for M Indira Gandhi’s suit against the police and the government for alleged inaction in executing a warrant of committal to arrest her former husband for contempt.
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Judge Mohd Nazlan Mohd Ghazali made the ruling during an online proceeding today.
In dismissing the government’s bid to strike out Indira’s suit, he said there were issues that needed to be ventilated at a full hearing.
“Although the defendants (government, police) in this striking-out application are correct in highlighting that the suit by her may not be based on the alleged nonfeasance in respect of the recovery order, the suit in my view may still proceed vis-à-vis the committal order.
“Contrary to the government’s assertions, this suit discloses a reasonable cause of action as the tort of nonfeasance under Malaysian law is recognised under Section 5 of the Government Proceedings Act, that states the government is liable in tort when any public officer commits any wrongful act, neglect or default in relation to a duty imposed by law.”
Nazlan said the government’s argument that Indira’s suit would result in a multiplicity of proceedings as the judicial review in Ipoh High Court is still pending was without merit.
“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.
“Her judicial review was centred on compelling the police to execute a committal order.
“This does not however bar her from instituting a civil claim 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, making reference to the contempt proceedings against former husband Muhammad Riduan Abdullah for failing to hand over custody of their youngest daughter, Prasana Diksa, to her.
Nazlan said he was mindful that “every Malaysian has a constitutional right of access to justice under the Federal Constitution and the effect of striking out a claim is to completely deprive a plaintiff from having their day in court”.
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Meanwhile, as for Indira’s bid to seek 48 answers from police over their investigations on her fugitive former husband, the court partially allowed her application, on questions related to 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,” Nazlan said.
Nazlan will hear the case from Dec 15.
The court also ordered the government to pay RM4,000 in costs for the striking-out order.
Indira filed her suit last year, citing police inaction in executing the warrant against Riduan. She is seeking damages and a declaration that the IGP had committed tort of nonfeasance in public office.
The government wanted to strike out her suit on grounds that it was frivolous and an abuse of the court process, claiming she had wrongly commenced the civil action. They said her judicial review against the government was still pending at the Ipoh High Court.
The Federal Court had in 2016 instructed the inspector-general of police to execute the warrant of committal against Riduan after he was found guilty of contempt by refusing to hand over their daughter, Prasana.
Prasana was taken away from her mother in 2010.
The apex court said the Ipoh High Court judge would monitor the progress of the arrest warrant’s execution.
Indira was represented by lawyers Rajesh Nagarajan and Sachpreetraj Singh while senior federal counsel Andi Razalijaya A Dadi and Safiyyah Omar appeared for the government.-FMT