Damages for trespass can only be claimed for periods when the plaintiff holds a valid Temporary Occupation License, rejecting claims for periods without such license.

Supang Lian JCA:

Introduction

[1] These two appeals are brought by Ganad Media Sdn Bhd (Appellant in Appeal 5-01 and Appeal 71-09 / Plaintiff in the High Court ) against the decision of the High Court which had allowed the appeal to Judge in Chambers by Metramac Corporation Sdn Bhd (Respondent in Appeal 71-09 /1st Defendant in the High Court ) and Big Tree Outdoor Sdn Bhd (Respondent in Appeal 5-01 and the 2nd Defendant in the High Court ) and overturning the decision of the Senior Assistant Registrar of the High Court and awarding the Appellant nominal damages of RM50,000.00.

[2] The parties will be referred to as they were in the High Court .

Background

[3] It is the 1st Defendant's (Metramac) case that pursuant to a concession agreement dated 13 February 1992 between itself and Dato Bandar Kuala Lumpur, the 1st Defendant was given the right to deal with a piece of land, i.e. Plot A, Kilometer 14 Lebuh Raya KL/Seremban, Mukim Petaling, 1600 KP ("the land").

[4] 1st Defendant had then by an agreement dated 9 May 1995 with the 2nd Defendant (Big Tree), granted a licence to the latter to manage, operate and maintain any advertising hoardings or matters related to the concession area which included the land.

[5] Later in year 2002, the Appellant (Ganad Media) was granted a temporary occupation license ("TOL") by the Land Administrator to the same land. Plaintiff possessed the TOL on the land for two different periods, namely: from 2002 - 2005 and from 2011 - 2015.

[6] On 15 June 2002, Plaintiff attempted to enter the land to construct a 2-sided Unipole on it. However, it was prevented from doing so by the 1st Defendant as the 2nd Defendant was occupying the land. The 1st Defendant continued to prevent the Plaintiff from entering the land for the subsequent years thereafter.

[7] The 1st and 2nd Defendants claimed that they were entitled to occupy the land and build a billboard on it notwithstanding that the Plaintiff possessed the TOL.

[8] Plaintiff, on the other hand, claimed that throughout their illegal occupation of the land, both the 1st and 2nd Defendants profited from (illegal) billboard advertising on the land.

[9] In 2003, Plaintiff commenced a suit in the High Court of Kuala Lumpur against both the 1st and 2nd Defendants seeking to declare its rights under the TOLs and damages for trespass on the land as both the 1st and 2nd Defendants had benefitted from the land to Plaintiff's detriment as the latter could not advertise on the land despite holding a TOL on the land.

[10] The Plaintiff's claim as pleaded in the Statement of Claim is for:-

a) a declaration that the Plaintiff as the licensee pursuant to s 68 of the National Land Code 1965 is the licence holder of the TOL and is therefore entitled to the uninterrupted possession of the land together with all its fixtures and fittings;

b) a declaration that the 1st Defendant has infringed the statutory right of the Plaintiff pursuant to s 68 of the National Land Code 1965;

c) a declaration that the 2nd Defendant has infringed the statutory right of the Plaintiff pursuant to s 68 of the National Land Code 1965;

d) a declaration that the 1st Defendant has trespassed into the land during the tenure of the TOL granted to the Plaintiff;

e) a declaration that the 2nd Defendant has trespassed into the land during the tenure of the TOL granted to the Plaintiff;

f) an injunction to restrain the 1st and 2nd Defendants whether by himself or by his servants or agents or otherwise however from trespassing on the land during the tenure of the TOL held by the Plaintiff;

g) damages;

h) loss of profits from 15 May 2002 to 31 December 2002 for the sum of RM135,416.66;

i) loss of profits from 1 January 2003 to 31 December 2003 for the sum of RM250,000.00;

j) alternatively, for damages, restitutionary remedy of accounting and paying to the Plaintiff all profits and/or gains made by the 1st and 2nd Defendants in the land during the material time in which the Plaintiff holds a TOL pursuant to