The court ruled that a change in the basis of damages claimed does not justify a complete dismissal of the claim, affirming the entitlement to compensatory damages for loss of use in trespass cases.

JUDGMENT

Ravinthran Paramaguru JCA:

[1] This is an appeal against the decision of the learned Judicial Commissioner who declined to make any award after conducting a trial to assess damages. The appellant had claimed damages for being deprived of the use of her land between 1997 and 2014. The High Court did not grant any damages whatsoever because the appellant claimed compensatory damages in the statement of claim but later claimed for restitutionary damages in the final submissions. In other words, the appellant claimed not what she lost by being deprived of the land but for what the respondent gained during that time. The appellant was the plaintiff in the High Court whereas the respondent was the defendant.

Background Facts

[2] The background facts stated in the judgment of the High Court, which includes the facts agreed upon by the parties are as follows.

[3] The subject matter of the dispute revolves around the possession of a parcel of land held under Native Title No 113039115. The appellant became the registered owner of the land on 11 June 1998 after having purchased it. The respondent company was in possession of the land at the material time. By letter dated 23 February 2012, the appellant s solicitors demanded vacant possession within 14 days.

[4] Upon the respondent's refusal to deliver possession of the land, the appellant instituted the instant action for trespass in June of 2012. Liability was tried first by the High Court. On 17 November 2015, the High Court found the respondent liable for trespass. However, the High Court only granted nominal damages of RM1,000.00 in favour of the appellant.

[5] The appellant appealed against the High Court's refusal to hold a trial to assess damages. On 19 January 2017, the Court of Appeal allowed the appeal and remitted the case back to the High Court to assess damages.

[6] At the outset of the assessment trial, the parties agreed to the following two issues to be tried:

(1) Whether the plaintiff is entitled to compensation due to the defendant occupying the land before 1998 and had continued to do so until 12 December 2014; and

(2) If so, what is the amount of damages the plaintiff is entitled to?

[7] At the trial, the appellant raised a further issue which was not agreed to by the respondent. It is as follows:

Whether the plaintiff is entitled to claim general damages and/ punitive and exemplary damages as prayed for at encl 7, prayer (iv) of the Amended statement of claim dated 28 August 2012.

Pleaded claim of the appellant

[8] In para 12 of the amended statement of claim, the appellant claimed for compensatory damages for trespass of land, ie for being kept out of the use of her land for a long time. Paragraph 12 reads as follows:

12. The plaintiff had no choice but to start the writ in order to gain back the possession of the said land from the Defendant and also to claim damages from the Defendant for trespass over the years. The Plaintiff had suffered damages and loss from the trespass of the said land because she had been deprived of the use of her rightful land over the years.

[Emphasis Ours]

[9] In the Opening Statement at the assessment trial, counsel for the appellant had said as follows:

The Plaintiff will rely on the testimony of the expert to show the damages she had suffered due to being deprived of the use of her own land. The Plaintiff's evidence will show that she would have been able to make a profit if she had been able to enter into her own land to develop it into an oil palm estate.

Evidence Of Loss

[10] The appellant s husband, PW 2, testified that his wife intended to use the land to cultivate oil palm. Part of the land had already been planted with oil palm when they purchased it. If they had not been deprived of possession of the land by the respondent, they could have earned income from selling oil palm fruits after three or four years of planting. The appellant s expert witness told the Court that he was tasked with preparing a report on the following matters:

1. Th