PUTRAJAYA – The Court of Appeal has dismissed a case brought forward by a 45-year-old widow who was seeking constitutional compensation for her husband’s death while he was in police custody in 2013.
A three-member bench led by Datuk S. Nantha Balan, and also comprising Datuk Mohd Nazlan Mohd Ghazali and Datuk Choo Kah Sing, unanimously dismissed the appeal at today’s proceeding.
The dismissal was made on the basis that it was an appeal on the second suit filed by the widow R. Kaliamah, together with her two sons K. Yugesh Varan, 23, and K. Kisho Kumar, 21, at the Kuala Lumpur High Court in 2021, after their first suit for a similar reason was dismissed by the Seremban High Court in 2018.
Their second suit was filed as the family sought to get constitutional compensation on the basis that Karuna Nithi’s life was taken, as well as a declaration that 16 defendants, including 14 police officers, had violated their rights under Article 5(1) of the federal constitution.
However, the second suit was dismissed in February last year.
Their first suit, which was filed for negligence and assault against the deceased, was thrown out on the basis that it was filed in 2018, which exceeded the 36-month period allocated for a family to file any suit against the government, as Karuna Nithi’s death was in 2013.
In today’s decision, which was delivered by justice Nazlan, the bench unanimously decided that while the family tried a different approach in filing the second suit to seek relief over alleged contravention of fundamental rights under the federal constitution, the essence of the second suit is similar to the first one filed.
Justice Nazlan said, therefore, the legal principle of res judicata is applicable in dismissing the appeal.
“Res judicata” refers to matters that cannot be raised again, either in the same or different court, and that a court would use this legal concept to deny reconsideration of the matter.
“We found that while the cause of action for the second suit appears different from the first legal action, it is, however, inaccurate to say that the current suit would not be a matter of the earlier suit,” he said.
“However, given the similarity of the two actions, the appellants could have included the present claim in the earlier suit, which they have failed to do so.”
The bench then dismissed the appeal and made no order as to costs.
Counsel T. Manoharan appeared for the widow and her two sons, while senior federal counsel Donald Joseph Franklin appeared for the 16 respondents, including the government and police.
Karuna Nithi was remanded at the Tampin district police station on May 28, 2013, following an alleged altercation with Kalamiah. He was further detained after his family failed to raise money for bail after he was charged in court.
However, he was found dead – with 49 injuries, mostly bruises on his body – in a lock-up at the police station on June 1 of the same year. The police CCTV recordings showed that Karuna Nithi was assaulted by police and other detainees while he was detained.
On January 28, 2015, the Seremban coroner’s court ruled that Karuna Nithi’s death was caused by injuries inflicted by beatings from police personnel as well as other detainees. The Seremban High Court later upheld the coroner’s court decision in 2017. – October 19, 2023