Raus Sharif JCA:

[1] This appeal is directed against the decision of Johore Bahru High Court dismissing the plaintiff's claim against the defendant with costs. The plaintiff in his claim had sought for:

i) A declaration that his suspension as a remisier from 27 December 1994 to 18 September 1996 was unlawful;

ii) Damages for the unlawful suspension from 27 December 1994 to 18 September 1996 to be assessed.

[2] On 9 July 2008, we heard this appeal whereafter by majority, we dismissed it with costs (Abdul Malik Ishak JCA dissenting). For ease of reference, we shall refer the parties in this judgment as in their original capacity: plaintiff and defendant respectively.

Background Facts

[3] The brief facts relevant to this appeal are these. The defendant, a member company of the Kuala Lumpur Stock Exchange (now Bursa Malaysia), had by a letter dated 21 April 1992 offered the plaintiff employment as a remisier. The salient terms were:

(a) Minimum security deposit of RM50,000;

(b) Trading limit of 15 times of security deposit.

[4] On 4 April 1994, the plaintiff had signed a contract ("remisier agreement") prepared by the defendant governing the terms and conditions of his employment as a remisier. The principal terms are:

(a) The plaintiff is entitled to 40% commission on the net brokerage from all sales and purchases of securities by plaintiff's client (cl 6.2).

(b) The initial security deposit of RM50,000 was to be utilised to set off against any debt or liability whatsoever nature which are or may be incurred by the plaintiff and due and owing to the defendant (cl 7.1).

(c) The defendant may in lieu of cash accept other forms of securities from the plaintiff as deposits (cl 7.2).

(d) The defendant shall be entitled at any time and from time to time increase the deposit to any amount it deems fit to commensurate with the volume of business done by the plaintiff (cl 7.3).

(e) The plaintiff shall be responsible for all debts, interest and costs, incurred by his clients and until all monies due to the defendant are paid, the same shall constitute a debt due from the plaintiff to the defendant (cl 9.1).

[5] The plaintiff officially commenced his employment with the defendant on 14 October 1992. At the end of 1992, the plaintiff's trading volume was too big and the deposit sum of RM50,000 was insufficient to trade. The defendant requested for an additional deposit. The plaintiff agreed to give his unencumbered land titles of his three properties ("the said land") as additional deposit.

[6] The titles of the said land were given to the defendant sometime at the end of 1992. The defendant took the titles into account for determining the plaintiff's trading limit by describing the said land as "collateral". On 24 February 1993, the defendant created a lien holder's caveat for a credit sum of RM500,000. In May 1993, the defendant created a charge for the sum of RM750,000 as a loan purportedly given to the plaintiff.

[7] The plaintiff did not physically receive the sum of RM750,000 as it was within the contemplation of the parties that it was to create an additional deposit to enable the plaintiff to increase his trading volume. The sum of RM750,000 was subsequently increased by the defendant to RM900,000.

[8] On 22 December 1994, there was a change of management by the defendant. It is the plaintiff's case that after the change in the management, he was suspended either partially (in that he was allowed to trade with permission) or fully (which he was not allowed to trade at all) from 27 December 1994 to 17 September 1996. The plaintiff contended that he should have never been suspended from trading at all as he had not exceeded his limit after having charged the said land to the defendant which was given a total value of RM900,000.

[9] The defendant disputed the period of suspension as alleged by the plaintiff. The defendant was only prepared to concede that the plaintiff was only suspended from 7 May 1996 to 17 September 1996. During the period prio