Damages for trespass must reflect actual loss and be properly substantiated by evidence, avoiding speculative assessments.

[1] This appeal arose out of an appeal to the Judge on an award of damages assessed by the learned Senior Assistant Registrar. Upon careful consideration of the submissions and records of appeal, we, unanimously, allowed the appeal in part and varied the decision of the learned Judge.

Background

[2] The facts and circumstances that fed to the assessment of damages merit some elaboration. The case involves two plots of land, Lots 2813 and 76. The respondent who was the plaintiff in the proceedings before the High Court is the owner of Lot 2813, Mukim AH, Daerah Kubang Pasu, Kedah while the appellant is the registered owner of Lot 76. The appellant's lot is located in the middle of Lot 2813. Both plots share a common border.

[3] The appellant utilized Lot 76 as a place of worship known as "Wat Boonyaram", and has built several buildings including a columbarium, crematorium, library, toilets and hostels on Lot 76. These buildings however, encroached onto the respondent's Lot 2813. The respondent successfully sued the appellant for trespass. The decision of the High Court which ordered damages for trespass to be assessed, was affirmed on appeal and leave to appeal to the Federal Court was refused.

[4] The assessment of damages was conducted by the learned SAR based on affidavit evidence. The respondent tendered a valuation report which assessed the respondent's loss at RM782,200.00 based on a market rental value at RM8,200.00 per month for a total of 96 months from 2007 to 2015. On the other hand, the valuation report tendered by the appellant assessed the market value to be RM2,000.00 per month based on comparisons with five other nearby properties giving a total sum of RM192,000.00. The appellant submitted that even if the respondent's valuation is used, damages should be assessed at RM57,623.04. This sum is calculated on the actual area trespassed, that is, 0.28 hectares and not on the whole of Lot 2813 measuring 3.8251 hectares or 411,730 sq ft.

[5] The learned SAR accepted the respondent's valuation and awarded damages of RM782,200.00, for the whole of Lot 2813. This decision was affirmed on appeal by the learned Judge.

[6] According to the learned Judge, the learned SAR was entitled to prefer and accept one valuation report over the other, "so long as the report was reasonably acceptable to the circumstances of the case." After perusing the valuation report, the learned Judge found the market value of RM8,200.00 per month as "reasonable" and saw "no reason to depart from this finding" as comparisons had been made with six adjacent properties. The learned Judge added that the sum was "reasonable considering the surrounding circumstances of this case". Those circumstances being:

i. the appellant had not acted within reasonable time to remove the infrastructures after receiving a demand from the respondent;

ii. the infrastructures constructed by the appellant could not be easily removed; that the removal of the columbarium and crematorium "would be very difficult and it could possibly attract public outcry";

iii. there was evidence elicited during the trial that the appellant had obtained undue monetary benefit from the unlawful use of the respondent's land by selling niches to the public.

Deliberations And Decision Of This Court

[7] In our judgment, while the learned