An assessment of damages is valid only if founded on a prior court judgment, and parties must plead specific damages to be entitled to such assessments.

[1] By its Notice of Appeal, the judgment creditor UOB Kay Hian Pte Ltd (the appellant) appealed against the decision of the Judicial Commissioner who had:

(1) Dismissed the judgment creditor's appeal to the judge in chambers against the Deputy Registrar's decision to dismiss the judgment creditor's preliminary objections on the assessment of damages in Application for Execution No: 36-01-2005(MR);

(2) Dismissed the judgment creditor's appeal to the judge in chambers against the Deputy Registrar's decision to allow judgment debtors assessment of damages in the sum of RM115,484.85 with costs in Application for Execution No: 36-01-2005(MR);

(3) Ordered that both dismissals be with costs to be taxed; and

(4) Allowed the respondent/execution debtor's summons in chambers in Application for Execution No: 36-04-2010(MR) with costs to be taxed.

[2] In the appeal before this court, the three issues raised for the appellant revolved upon the argument that the order of 12 December 2005 and 8 February 2006 was a nullity because there was no judgment. It was prayed for the appellant therefore that:

(1) the appellant's preliminary objections be allowed;

(2) the purported damages as assessed at RM115,484.85 be set aside; and

(3) the appellant's summons for directions for sale be re-instated for hearing.

[3] The submissions for the respondent however dwelt on elementary principles that:

(1) there cannot be an assessment of damages without there first being an order granted by a court having the power or jurisdiction to do so, that the damages be assessed (Lai Yoke Ngan & Anor v. Chin Teck Kwee & Anor [1997] 1 MLRA 284 , [1997] 2 MLJ 565 );

(2) a party is bound by its pleadings, and assessment of damages is not pleaded, no order for assessment of damages can be granted (Anjalai Ammal & Anor v. Abdul Kareem 1968 MarsdenLR 141 , 1968 MarsdenLR 245 ; State Government of Perak v. Muniandy [1985] 1 MLRA 423 ; [1986] 1 MLJ 490 ; Wisma Punca Emas Sdn Bhd v. Dr Donal R O'Holohan [1986] 1 MLRA 562 ; [1987] 1 MLJ 393 );

(3) no party can improve on its pleadings by affidavit (United Malayan Banking Corporation Berhad v. Palm & Vegetable Oils (M) Sdn Bhd & Ors [1982] 1 MLRA 174, [1983] 1 MLJ 206 ; [1982] CLJ (Rep) 358 );

(4) a nullity will always remain a nullity.

[4] The submissions concluded:

"9.1. This appeal must be read together with the Civil Appeal No: Q-02(IM)-1910-2010 which centres on the same issue of "damages to be assessed" where there is NO JUDGMENT"

"9.2. The High court Order made on the 12 December 2005 for "damages to be assessed" is a nullity for the reasons stated above and which said reasons are thoroughly supported by the legal authorities cited."

"9.3. In the premises the appellant humbly prays that this appeal be allowed with costs here and below in the following terms:

i. the appellant's preliminary objections be allowed;

ii. the purported damages as assessed at RM115,484.85 be set aside; and

iii. the appellant's summons for directions for sale be re-instated for hearing."

Reasoning And Decision

[5] If this appeal must be read together with Civil Appeal No: Q-02(IM)-1910-2010, there ought to have been an application made for the two appeals to be heard together. Without an order that the appeals be heard together, each appeal must be heard separately and upon its own record. We observe also that although it was submitted for the appellant this appeal must be read together with the other appeal, the records of that appeal was not filed in the record of this appeal. In the event, this appeal will be heard on its merits on its own record of appeal.

[6] Although the law with regard to the reasons rendering an order that i