ABDUL GHANI BIN ABU BAKAR v Ahmad Bin Haji Idris (Si Mati Melalui Rocida Binti Ahmad Binti Ahmad (K/p: 820707025070) Sebagai Sahabat Wakil) (KA-22NCvC-43-08/2022)

ABDUL GHANI BIN ABU BAKAR (No. K/P: 740313-02-6329)

ISMAIL BIN ABU BAKAR (No. K/P: 540217-02-5477)

MARIAM BINTI AKIB (No. K/P: 360711-02-5036)

MAT RADZI BIN ABU BAKAR (No. K/P: 650820-02-5567)

MAT SOBRI BIN ABU BAKAR (No. K/P: 791120-02-5215)

MOHAMAD NAWI BIN ABU BAKAR (No. K/P: 580415-02-5773)

NORIAH BINTI ABU BAKAR (No. K/P: 671228-02-5384)

NORMAH BINTI ABU BAKAR (No. K/P: 631101-02-5794) …PLAINTIFF AND AHMAD BIN HAJI IDRIS (No. K/P: 550821-02-5463) Si Mati melalui ROCIDA BINTI AHMAD 15/12/2025 10:46:02 KA-22NCvC-43-08/2022 Kand. 98 (No. K/P: 820707-02-5070) Sebagai Sahabat Wakil …DEFENDANT GROUND OF JUDGMENT (Enc. 78 – Assessment of Damages)

This action which was brought by the Plaintiff against the Defendants seeking various reliefs chief of which for damages. The matter came to be heard by the learned judge who has since been transferred, who on 19.11.2024 allowed the Plaintiffs’ claim and further ordered the assessment of damages. This is how the matter now comes before me. This pertains the Plaintiffs’ claim for damages, namely relief (e) in the Statement of Claim, as set out below:

All losses and damages suffered by the Plaintiffs as a result of the Defendant’s misuse and/or trespass shall be assessed before the Deputy Registrar or the Honourable Judge of the High Court and shall be paid by the Defendant to the Plaintiffs.

The case management minutes dated 27.4.2025 recorded the attendance of counsel for the Plaintiffs and the Defendant. The direction given were for the parties to file affidavits and written submissions. This direction was complied with by the counsel for the Plaintiffs. Unfortunately, it was not adhered to by the Defendant. The reason given was that the Defendant stated that she was confused with the Plaintiffs’ applications in Enclosures 75, 78 and

Upon clarification, the Defendant instructed his counsel to resume representing her only in respect of the proceedings in Enclosure 78. Counsel for the Defendant thereafter applied for leave to file an affidavit in reply and written submissions. The Deputy Registrar directed the Defendant to file the affidavit on or before 5.5.2025; and the Plaintiffs to file their affidavit in reply on or before 19.05.2025. Submissions/Additional Submissions are to be filed on or before 9.6.2025. The proceeding for assessment of damages was fixed for hearing on 18.6.2025. Subsequently, the learned judge who heard the main suit was transferred. The case was then fixed for assessment before me on 3.9.2025.

On 3.9.2025, counsel for the Plaintiffs appeared, whereas neither the Defendant nor her counsel were in attendance. I then directed my officer to contact the office of the Defendant’s counsel and was informed that no instructions had been received from the client in respect of this proceeding. Counsel for the Plaintiffs accordingly applied for the matter to proceed and relied upon the written submissions previously filed.

The cause papers filed for the assessment of damages proceedings comprised the Plaintiffs’ Supporting Affidavit [Enclosure 82] filed on 20.3. 2025; the Defendant’s Affidavit in Reply [Enclosure 86] filed on 5.5. 2025; and the Plaintiffs’ Affidavit in reply [Enclosure 88] filed on 19.5. 2025. Counsel for the Plaintiffs had also filed Written Submissions [Enclosure 84] and a Bundle of Authorities [Enclosure 83]. Apart from the Defendant’s Affidavit in Reply [Enclosure 86], no written submissions were filed by the Defendant’s counsel.

Having heard the Plaintiffs’ counsel, I set the matter down for decision on 21.9.2025. On the day fixed, counsel for the Plaintiffs apprised the Court that his attempts to reach the office of the Defendant’s counsel were futile. He further conveyed that the Defendant’s counsel had ceased to act for the Defendant, though no formal withdrawal application had been lodged. I must say that this conduct on the part of the Defendant's counsel is rather unfortunate as unless a solicitor is discharged by an order he remains on record- (see Order 64 r 5 of the Rules of Court 2012). On this I shall say no more.

Having given this matter my most anxious and careful consideration I awarded damages for loss of paddy yield on Lot 486, Permatang Bongor, Mukim Sala Kechik, 06800 Alor Setar, Kedah, in the sum of

Dissatisfied with my decision, the Defendant filed a notice of appeal dated 21.10.2025.

I have indicated that I will provide my full grounds upon any appeal. The following constitutes the full grounds. Background Facts 9. The Plaintiffs are the registered proprietors of the property known as Lot 486, Permatang Bongor, Mukim Sala Kechik, 06800 Alor Setar, Kedah (“Lot 486”). The Plaintiffs took the action against the Defendant seeking possession of that Lot 486 and contended that the Defendant had been occupying unlawfully on that Lot. The Plaintiffs also claimed damages.

As recounted earlier, by an order dated 19.11.2024 the Plaintiffs’ claims against the Defendant was allowed, and the Court granted the following reliefs:

a declaration that the Plaintiffs are entitled to the land known as Lot 486, Permatang Bongor, Mukim Sala Kechik, 06800 Alor Setar, Kedah;

vacant possession shall be delivered to the Plaintiffs’ within fourteen (14) days from the date of this Court Order;

the Defendant’s occupation of the said land is unlawful and/or constitutes a trespass upon the Plaintiffs’ property;

the Defendant shall forthwith vacate and remove all structures and items from the said land;

all losses and damages suffered by the Plaintiffs as a result of the Defendant’s misuse and/or trespass shall be assessed before the Deputy Registrar or the Honourable Judge of the High Court and shall be paid by the Defendant to the Plaintiffs; and,

the Defendant is liable to pay interest at the rate of 5% per annum on the sum awarded under paragraph (e) above, calculated from the date of the Writ of Summons until full settlement.

Issues The Plaintiffs claimed losses and damages suffered as a result of the Defendant’s misuse and/or trespass during the period from 23.9.2002 until 31.12.2024. Specifically, in terms of damages, the Plaintiffs sought restitution for the loss of paddy yield on the said Lot.

In the Supporting Affidavit [Assessment of Damages Proceedings] (Enclosure 82), the Plaintiffs stated as follows:

The title to the said land was transferred to the Plaintiffs by the

(ii) The land is agricultural land intended for paddy cultivation;

(iii) Lot 486 has an area of 4 ½ relong;

(iv) One relong of paddy yields two (2) tons of paddy per planting season;

Paddy is harvested twice (2) yearly or two seasons in a year;

(vi) The yield from 4 ½ relong is equivalent to 9 tons of paddy;

(vii) The selling price of paddy ranges between RM1,300.00 and RM1,700.00 based on prevailing market prices. On 13.2.2025, the Government announced a price adjustment fixing paddy at RM1,500.00 per ton;

(viii) One harvest from 4 ½ relong, i.e. 9 tons of paddy, is valued at RM11,700.00 (RM1,300.00 × 9 tons;

(ix) The Plaintiffs’ have suffered losses from 2002 until 2024, a period of 22 years;

Twenty‑two

years of wrongful use/trespass by the Defendant is equivalent to 44 harvests;

(xi) RM11,700.00 × 44 harvests = RM514,800.00;

(xii) The cost of cultivating paddy for two harvests per year over 22 years amounts to RM67,082.40;

(xiii) The Government provides a fixed subsidy to paddy cultivators of RM625 per metric ton, calculated at approximately 30% of the paddy yield;

(xiv) The subsidy granted over the 22‑year period amounts to RM162,539.00 (31.58% of the paddy yield valued at RM514,800.00), being approximately 30% of the yield.

Based on the above calculations, counsel for the Plaintiffs submitted that the Plaintiffs are entitled to a compensation in the sum of RM610,256.60 (being RM514,800.00 for paddy yield over 22 years, together with RM162,539.00 in Government subsidies, less RM67,082.40 being the cost of paddy cultivation over the same period).

In the Defendant’s Reply Affidavit [Enclosure 86], the Defendant's assertions may be summarized as follows:

challenging the authenticity of the affidavit filed by the

(ii) disputing the Plaintiffs’ ownership of the said property;

(iii) admitting that the Defendant possessed and cultivated the Lot in the belief and understanding that he was entitled to own and cultivate it, having purchased the land in the year 1990;

(iv) asserting that the Plaintiffs’ claim for damages is subject to the Limitation Act 1953, and that the Plaintiffs’ are only entitled to claim damages for a period of six (6) years;

stating that the Defendant delivered possession of the land to the Plaintiffs on 19 .11.2024, and therefore the six‑year claim period runs only from 2019;

(vi) demanding that the Plaintiffs’ strictly prove the exhibits tendered in support of their calculation of paddy sales proceeds, cultivation costs for Lot 486, and Government subsidies received by cultivators of Lot 486;

(vii) emphasising that the Plaintiffs’ calculation of the damages claimed is erroneous, misleading, inaccurate and unproven.

As stated above this court was not assisted and did not have the benefit of any oral or written submissions by the Defendant.

Legal Principles It is trite that the legal principles governing compensation for damages to a party affected by a tortious act is founded upon the principle of restitutio in integrum, namely, to restore the injured party to the position he would have been in had the tortious act not occurred. The quantum of damages to be awarded must be reasonable as between the Plaintiffs’ and the Defendant – (see McGregor on Damages, 19th Ed. paras 37-043 to 37-045).

In Milik Perusahaan Sdn Bhd & Anor v. Kembang Masyur Sdn Bhd [2003] 1 MLJ 6, Gopal Sri Ram JCA (as he then was) cited with approval the judgment of Henchey J in Munelly v. Calcon [1978] IR 387, which in turn referred to the judgment of May J in CR Taylor Ltd v. Hepworths Ltd, wherein May J stated as follows: “The various decided cases on each side of the line to which my attention has been drawn, and to some of which I have referred in this judgment, show in my opinion merely the application in them of two basic principles of law to the facts of those various cases. These two basic principles are, first, that whenever damages are to be awarded against a tortfeasor or against a man who has broken a contract, then those damages shall be such as will, so far as money can, put the plaintiff in the same position as he would have been had the tort or breach of contract not occurred. But secondly, the damages to be awarded are to be reasonable, reasonable that is as between the plaintiff on the one hand and the defendant on the other. I accept those two principles as being basis to, although not necessarily exhaustive of, the concept of restitutio in integrum on which the law of damages rests in cases such as this. It is in the application of those principles that difficulty may arise, for a court, in endeavouring to award a sum which will be both compensatory and reasonable, will be called on to give consideration, with emphasis varying from case to case, to matters such as the nature of property, the plaintiff's relation to it, the nature of the wrongful act causing the damage, the conduct of the parties subsequent to the wrongful act, and the pecuniary, economic or other relevant implications or consequences of reinstatement damages as compared with diminished value damages. The reported cases, therefore, required to be viewed primarily as exemplifications of the application to special facts of two principles to which I have referred.” (Emphasis added)

A pertinent issue to which I must dispose of is the issue of limitation raised by the Defendant in the affidavit: whether the damages for loss and deprivation suffered by the Plaintiffs as a result of the Defendant’s wrongful use and trespass are subject to the Limitation Act 1953.

As stated above the principle of restitutio in integrum requires that the injured party be restored to the position he would have been in had the tortious act not occurred. To my mind the restitution must include all the benefits that the wrong party had enjoyed. Otherwise, that wrong party will be unjustly enriched. On this score all benefits obtained by the Defendant during the period of wrongful use and trespass upon the Plaintiffs’ Lot must be returned to the Plaintiffs. This is on the fact of clear admission by the Defendant to having possessed and cultivated the Lot for the relevant period.

The principles of restitution and their interplay with the plea of limitation were discussed in the case of Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd [2015] 2 CLJ 453, where the Federal Court stated at paragraph [110]: “We acknowledge that the position that we have reached is an unhappy one. However, in view of the statutory wording of the Limitation Act and its legislative history, we decline to (artificially) hold that restitutionary claims, including those in unjust enrichment, come within the ambit of the Limitation Act. Until the lacuna in the law has been addressed by Legislature, restitutionary claims are therefore not time barred. As we further elaborate at [123] below, this should be an urgent clarion call for legislative intervention.” (Emphasis added)

It is interesting to observe that the Singapore Court of Appeal in Esben Finance Ltd v. Hou‑Lianq Neil [2022] SGCA (I) 1, held that claims founded on unjust enrichment are not subject to limitation periods.

Accordingly, it is incumbent upon me to scrutinise the evidence adduced by the Plaintiffs concerning the losses sustained and to determine whether the amount claimed is reasonable.

Limitation and Damages In the present case, it cannot be denied that the Defendant had taken possession and cultivated paddy in Lot 486 since 1990.

From the legal position discussed above I hold and find that the Plaintiffs’ claim for damages in the form of restitution is not caught nor barred by the limitation period. To accede to the Defendant’s contention to the contrary will amount to unjustly enriching the Defendant. Accordingly, the period for which damages is to be computed is from the date the title was transferred to the Plaintiffs, namely 23.9.2002, until the date of judgment for pronounced in favour of the Plaintiffs, namely 19.11.2024.

As regards to the measure of damages counsel for the Plaintiffs submitted that particulars of the damages claimed, supported by evidence of paddy yields, relying upon:

the transfer of title to the Plaintiffs by the Land Administrator on 23.9.2002, as evidenced from Form T on the same day in exhibit MN‑2 of Enclosure 82;

(ii) the first Plaintiff’s experience as a paddy farmer for 30 years, with the net yield from the first harvest in 2025 being RM5,419.40 and the annual yield amounting to RM10,838.80, as evidenced in exhibit MN‑6 of Enclosure 82;

(iii) evidence of paddy yields based on harvests of Lot 66, situated adjacent to Lot 486;

(iv) The floor price of paddy at a minimum rate of RM1,300.00, as evidenced by a newspaper cutting dated 13.2.2025 (exhibit MN‑4 of Enclosure 82);

costs and wages for paddy harvesting amounting to RM1,524.60, as evidenced in exhibit MN‑6 of Enclosure 82;

(vi) Government subsidies of RM625 per ton, or 30% of the paddy yield, provided by MADA (Muda Agricultural Development Authority), as referred to at paragraph 31, page 10 of Enclosure 82;

(vii) evidence of subsidy payments amounting to RM1,900.00 for a net paddy weight of 3.8 tons, as evidenced by a receipt from Kilang Beras Ban Seng Sdn Bhd dated 1.3.2024 for Lot 66, tendered as a comparison (exhibit MN‑5 of Enclosure 82).

Further, it was submitted that the sale price of paddy at RM1,300.00 per ton, 4 ½ relong yields 9 tons of paddy, with a sales value of RM1,300.00 × 9 tons = RM11,700.00.

I have carefully considered the evidence adduced by the Plaintiffs referred to above and find that the evidence are credible. I must again emphasise that apart from putting the Plaintiffs to strict proof, the Defendant offered no other evidence to the contrary.

In the absence of any further evidence, I accept the Plaintiffs’ submissions and order that damages be assessed as follows:

Yield from 44 Harvest Seasons RM 11,700.00 × 44 (22 years with two seasons per year) = RM 514,800.00

(ii) Subsidy obtained from the Government at the rate of 31.58% of RM514,800 RM 162,539.00

(iii) RM67,082.40 (deducted as cultivation costs over 22 years / 44 harvests) RM 67,082.40 Total: RM 610,256.60

29.

In the upshot and having reviewed the entirety of the cause papers in the assessment of damages proceedings and taken into account the Plaintiffs’ submissions, the Plaintiffs are awarded damages in the amount of RM610,256.60, with interest at 5% per annum from the date of the order until full payment. I so order. Dated: 21st September, 2025 (MOHD AIMI ZAINI BIN MOHD AZHAR) Judicial Commissioner High Court Malaya Alor Setar Kedah Darul Aman For the Plaintiffs: Encik Azmer Bin Md Saad Messrs. Lainah Yaacob & Zulkepli For the Defendant: Encik Mohd Pahmi Bin Shaari Messrs. Fahmi, Mohd & Associates