Gopal Sri Ram JCA:

[1] There are two appeals before us. We heard argument on them on 1 August 2005 and reserved Judgment. Both appeals relate to the quantum of damages awarded by the learned trial Judge. The factual matrix against which these appeals rest is as follows.

[2] the appellant in the first appeal (Plaintiff in the court below) is the owner of a piece of land. I will call it "the Semabok land". At all material times the respondent in the first appeal (Defendant in the court below) was in occupation of the Semabok land. On 11 August 1983, the plaintiff and Defendant entered into an agreement ("the August 1983 agreement") the relevant terms of which were these:

(i) the defendant was to "assign and or surrender all his interest and rights in and to the portion of the said land occupied by him together with the said house" to the plaintiff;

(ii) in consideration of the defendant's promise, the plaintiff was to pay the defendant a certain sum of money as compensation. the plaintiff said it had to pay RM30,000. But the defendant said that he had been promised RM100,000. The quantum of the payment therefore became the subject matter of a fully blown dispute;

(iii) the defendant and all those claiming under or through him were to vacate the Semabok land on or before 15 August 1984;

(iv) in the event the defendant failed to deliver vacant possession by the said date, the plaintiff was "entitled to take eviction proceedings" against him.

[3] As I said, there was a dispute about the amount payable. The agreement expressly provided in cl 2 for the payment of RM30,000 but went on in cl 2(b) to say that:

the balance shall be paid immediately upon the Occupier his subtenants/licencees and all those lawfully claiming under him vacating the surrendered portion as hereinafter provided.

However, there is no dispute that the sum of RM30,000 was indeed paid.

[4] It appears that the plaintiff did not take any steps to enforce the August 1983 agreement for quite some time. It issued writ only on 7 November 1991 the defendant entered appearance but defaulted in delivering his defence. So, on 26 May 1992 the plaintiff entered Judgment in default of pleading. In the meantime, the defendant was adJudged a bankrupt on 16 April 1992. He took out a summons to set aside the default Judgment. He served his summons on the plaintiff. Almost at once after being served with the defendant's summons, the plaintiff applied for a writ of possession and proceeded to execute it. Pursuant to the execution the defendant's goods were removed from the Semabok land. They were placed by the roadside near another land belonging to the plaintiff. A quantity of these goods were lost.

[5] The default Judgment was set aside on 28 November 1995, following which the defendant delivered his defence and counterclaim. On 17 September 1997 the defendant consented to Judgment on the plaintiff 's claim for vacant possession. Later, the defendant delivered an amended defence and counterclaim in which he grounded his case on trespass to goods, although he may well have relied on the tort of conversion as well. The learned Judge found for the defendant. He held that although the bailiff had executed the writ of possession, the defendant's goods had been removed by the plaintiff 's servants or agents. He also found that so far as the bailiff's role in the removal of the defendant's goods was concerned, he had acted as the plaintiff 's agent. He concluded that the plaintiff had interfered with the defendant's goods without lawful justification. That finding, in my view, is correct. The writ of possession did not authorise the plaintiff to remove the defendant's goods. If the plaintiff wanted to have those goods removed, then it should have obtained an order from the court in that behalf.

[6] The learned Judge after referring to the Judgment of Elphinstone CJ in Marian Rebello v. K Periathamby [1931 - 1932] FMSLR 37 said (in the English translation of his Judgment provided to us):

In thi