PUTRAJAYA (Aug 24): The appellate court has dismissed M Indira Gandhi's appeal of her nonfeasance lawsuit against the police over their failure to locate her ex-husband K Pathmanathan @ Muhammad Ridhuan Abdullah, who took their youngest child away 18 years ago in a battle over unilateral conversion.
In the unanimous decision, the three-member Court of Appeal (COA) bench said that Indira couldn’t prove the necessary link between the defendants’ actions and the damages she claimed in the suit.
The panel, however, cautioned that Monday's decision does not mean that the police are immune from responsibility, nor does it mean that ignoring lawful court orders and warrants has no legal consequences.
Reading the panel's decision, COA judge Datuk Faizah Jamaluddin said: "This appeal, therefore, fails for a narrow but essential reason. The causal connection required for an award of private law damages was not proved.
"It does not fail because the police 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 immaterial.
"We want to make it clear that none of those propositions form part of our decision.
"We would also like to make it clear that nothing in these grounds should be understood as conferring immunity upon the police or as suggesting that a failure to obey and execute lawful orders and warrants of the courts is legally inconsequential."
COA judge Datuk Mohamed Zaini Mazlan chaired the bench, which also includes COA judge Datuk Mohd Radzi Abdul Hamid.
This case is believed to be one of the rare cases on the tort of nonfeasance — the failure to perform an act required by law.
Indira took the police to court for not acting to seek Ridhuan and the couple's child, Prasana Diksa, despite a warrant of committal issued by the court in 2016. The court order was to arrest her ex-husband over contempt of court for refusing to hand over custody of the child to Indira.
The child was only 11 months old when she was taken, and she is 18 years old now, but her whereabouts remain unknown to her mother.
Besides the inspector general of police (IGP), others named as defendants were the police, the government, and the home minister. Indira was seeking RM100 million in damages in her suit, which was filed in October 2020.
In June 2024, the High Court dismissed Indira's suit, saying that the claim of nonfeasance was a nonstarter. The court ruled that Indira had failed to prove that the IGP and the police's lack of action was due to malice and bad faith.
COA panel disagrees with lower court, says there were deficiencies on part of the police
Faizah noted that this case goes beyond "the private grief of a mother" and touches on the court's authority, the force of their rulings, and the police’s responsibility to enforce them.
Reading out excerpts of her decision, Faizah said that in arriving at its decision for the present appeal, the panel had to look at several questions.
"We must determine what the police were legally required to do, what evidence establishes as to their performance, and whether any proved omission probably prolonged the appellant’s separation from [Prasana Diksa] or caused any loss for which damages are key," she said.
She noted that there were "material deficiencies" in the police's performance and differed from the High Court's decision on that ground.
"We are therefore unable to agree with the High Court's broad conclusion that the police had sufficiently and fully performed their duty. The evidence was weaker than the High Court appreciated.
"It disclosed material delay, the absence of important contemporaneous records, limited first-hand knowledge on the part of the principal witnesses, and activities which carried limited probative weight as proof of execution of the warrant. Those matters justified appellate re-evaluation," she said.
She, however, added that the respondents' failure to show satisfactory performance clearly, does not mean that no steps were taken to carry out the court order.
"Nor do they establish [Indira's] wider allegation that the entire investigation was false or a sham," she said.
Panel says Indira failed to prove her case on balance of probability
Faizah said Indira failed to prove her case on the balance of probability. The judge added that the respondents did not cause the taking and initial separation of mother and daughter.
"We do not doubt the reality of [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. That connection was not proved on a balance of probabilities," she said.
The panel also noted that malice and bad faith were not ingredients of the nonfeasance claim at the present appeal.
The panel made no order as to cost.
To read the grounds of judgement for this case, click here.