Bandar Utama City Corporation Sdn. Bhd. v Majlis Bandaraya Petaling Jaya (22NCVC-1046-08/2012)

By Notice of Application dated 17 January 2017, the Plaintiff seeks in respect of the assessment of damages for trespass of land under Order 37 and/ or 92 of the Rules of Court 2012 (Enclosure 98). After the trial, the Shah Alam High Court allowed the Plaintiff’s claim against the Defendant for trespass to the Plaintiff’s land in Lot 15390 (hereinafter refer to as “Triangular Land”). 2

The Plaintiff proceeded to file the Summons for Direction under Order 37 of the Rules of Court, 2012. Upon the agreement of the parties, the learned Registrar directed that the assessment of damages shall proceed via Affidavit evidence only.

The cause papers for this application are as follows:

Notis Permohonan by Plaintif dated 23 November 2017

Afidavit Sokongan (‘Taksiran Gantirugi’) Plaintiff affirmed by Teo Ching Kok dated 23 November 2017;

Afidavit Jawapan Defendan affirmed by Ismail Bin Shafie dated 24 January 2018;

Afidavit Balasan (Taksiran Gantirugi) Plaintiff affirmed by Teo Ching Kok dated 29 January 2018; BACKGROUND FACTS

The Plaintiff claimed that Jalan Tanjung has been constructed by the Plaintiff which cut across Lot 27680 and Lot 15390 located in Jalan Tanjung Bandar Utama wherein the Plaintiff claimed to be their land. Lot 15390 is the triangular shape land and is a 'Kawasan Lapang’. In August 2011, the Plaintiff has put some barriers on some part of Jalan Tanjung in order to make it as a dedicated accesses for the Plaintiff.

On 17 August 2012, the Plaintiff claimed that the Defendant's officers, employees, and/or agents had entered into Jalan Tanjung and 3 removed the barriers which were set up earlier at some part of Jalan Tanjung by the Plaintiff. The Plaintiff had suffered the cost of re-installing the barriers as a result of that trespass.

Plaintiff then filed for this suit against the Defendant and managed to obtain an ex-parte interim injunction on 29 August 2012 and inter-parte interim injunction on 1 October 2012 against the Defendant from the previous High Court pending the full disposal of this suit.

The Plaintiff has applied for relief for permanent injunction to prevent the Defendant from trespassing into Lot 15390 ('the said Land') and damages for the cost of re-installing the barricades to its original position.

The High Court on 12 December 2016 ruled in favour of the Plaintiff and allowed the Plaintiff's prayer for permanent injunction on the said Land and for the damages to be assessed.

It is trite and settled law that where a Plaintiff brings an action for damages, he must prove the actual damages or the reasonable compensation for it in accordance with the settled principles and before he can recover the damages he has to discharge the burden of proving both the fact of damage and the amount of damage.In Halsbury’s Laws of Malaysia, Volume 5 at page 388, it states as follows: 4 “…[80.444] Damages. In an action of trespass, if the Plaintiff proves the trespass, he is entitled to recover damages, even if he has not suffered any actual loss. Where the trespass has caused him actual damage, he is entitled to receive such an amount as will compensate him for that loss. The Plaintiff may need to show: (1) that the trespass caused the damage;(2)that thedamage is not too remote; and(3) the proof of damage. Where the precise evidence of damage is not available, the court must do its best; the difficulty of proof does not disperse with the necessity of proof. Where the defendant has made use of the Plaintif’s land, the Plaintiff is entitled to receive by way of damages such an amount as should reasonably be paid for that use……”

Similarly, the Plaintiff have to prove the actual damage by stating the actual facts and evidence to support the claim for the actual damage. In the case of: Voo Nyuk Fah & Anor v. Lam Yat Keong & Anor

5 CLJ 229, Mohamed Apandi Ali JCA (delivering judgment of the court): "….. The Law on Assessment of Damages

It is trite law that the task of accounts and assessment of damages is an exercise of judicial discretion. Such discretion is based is a judicial one, as it is not exercised based on whims and fancies, but be reference, guidance and application of established judicial principles and of course having regard to all the facts and evidence adduced before the officer or the judge who undertakes the assessment……

In our view the basic governing principles maybe stated as follows: 5

The burden of proving damages is always on the parties claiming the damages. See Tan Geok Khoon & Gerald Francis Robles v. Paya Terubong Estate Sdn. Bhd. (1987) 1 LNS 79 where Justice Edgar Joseph Jr. (as he was then) said: This brings to my mind the famous words of Lord Goddard in Bonham-Carter v. Hyde Park Horel (1948) 64 TLR 177: Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the court, saying “This is what I have lost, I ask you to give me these damages. They have to prove it……………….”

In the case of: Tan Sri Khoo Teck Puat & Anor v. Plenitude Holdings Sdn. Bhd. (1995) 1 CLJ 15 (FC), it is trite law that the Plaintiff bears the burden of proving its damages. In order for the Plaintiff to claim for damages, the Plaintiff must prove the damage and it is not enough to merely write down the particulars and rely on the same. Edgar Joseph Jr. FCJ (delivering judgment of the court): "…….Before we embark upon a detailed consideration of the specific issues which arise for decision, there are three preliminary matters which, at the outset, require emphasis. Firstly, that part of the judgment which provides that the vendor shall pay to the purchaser damages to be assessed for wrongful termination of the agreement with costs and that Tan Sri Khoo and the vendor shall pay to the purchaser damages to be assessed for breaches of the 6 undertakings, even though affirmed on appeal, can in no way relieve the purchaser of satisfying the fundamental requirement of having to prove its loss (if any) arising from those breaches. To hold otherwise would amount to dispensing with proof of quantum altogether, and that cannot be the law. In so saying, we reminded of the words of Lord Goddard in Bonham - Carter v. Hyde Park Hotel Ltd 64 TLR 177 at p. 178: Plaintiffs must understand that if they bring actions for damages it is for them to prove their damages; it is not enough to write down the particulars, so to speak, throw them at the head of the court; saying: 'this is what 1 have lost, I ask you to give me these damages, They have to prove it……………..”.

In addition, in awarding damages, be it for breach of contract or in the commission of tortuous act, the principle of “restitution in integrum” applies. In common parlance, it means that damages in terms of monetary compensation can be awarded to replace an injured party in the same or original position occupied (or enjoyed] by him before the occurrence of the injury or wrongful act. In the case of: Subramaniam Paramasivam & Ors. v. Malaysia Airline System Bhd. (2002) 1 CLJ 230, Kang Hwee Gee J held that: “…..in attempting to measure the damages that may be awarded to the Plaintiffs two basic principles of assessment must first be understood…. The first is with respect to its function. As Lord Blackburn said in Livingstone v. Rawyard Coal Co. (1880) 5 App. Cas. 25 at 29, damages is, The sum of money which will put the party who has been injured, or who has suffered in the same position as he would 7 have been in if he had not sustained the wrong for which he is now getting his compensation or reparation….. The second is a corollary of the first – that in awarding damages, the plaintiff should not be allowed to profit by it. The principle is enunciated in the Federal Court case of Tan Sri Khoo Teck Puat v. Plenitude Holdings Sdn. Bhd. (1994) 3 MLJ 777…………..” ISSUE Whether the Plaintiff has proved its claim despite the Defendant has trespass onto his land in Lot 15390 (Triangular Land)??

The learned counsel for the Plaintiff had submitted and claimed for the cost for hiring of security guard in the said Land from stating from 17 August 2012 towards the end of the disposal of this case in 21 December 2016. The Plaintiff has filed this suit on 28 August 2012, while the single act of trespass by the Defendant only occurred in one day on 17 August 2012, when the barricades are put back to its original position by on the same day by the Plaintiff. Before that day, Plaintiff had put some barriers on some part of the said Land in order to make it as a dedicated access for them and at the Defendant has on the morning of 17 August 2012 has removed the said barriers from the said Land on the ground that it caused the obstruction of traffic to the public. This is clearly reflected in the Plaintiff’s Statement of Claim as below: 8 Fakta-fakta pencerobohan yang didakwa oleh Plaintiff seperti di dalam pliding 7. Pada pagi 17.7.2012, pegawai-pegawai, pekerja-pekerja dan/ atau agen-agen Defendan Pertama dan/ atau kedua telah mencerobohi Jalan Tanjung selebihnya tersebut dan mengalihkan halangan-halangan yang didirikan di atas jalan Jalan Tanjong Selebihnya tersebut. Pencerobohan tersebut diteruskan pada 19 August 2012, apabila halangan-halangan yang dikembalikan kepada tempat asal, oleh Plaintiff, cuba dialihkan sekali lagi.’ Laporan Operasi, Jabatan Kejuruteraan Majlis Bandaraya Petaling Jaya sebab-sebab halangan jalan perlu dibuka:

Jalan tersebut bukan terletak di tanah milek Bandar Utama 2. Tanah milek Bandar Utama City Corporation telah menjadi tanah Kerajaan Negeri berdasarkan Borang 5B (borang dari pejabat tanah) dikeluarkan 3. Dimaklumkan pihak Majlis tidak membuat sebarang pembinaan di kawasan tersebut cuma mengalihkan halangan seperti …konkrit barrier, perabot jalan……Parit dan Bangunan 4. Arahan untuk mengalihkan halangan…..lanjutan keputusan mesyuarat yang dipengerusikan oleh Cik Tiew Way Keng 5. ………….

Hasil perbincangan bertarikh 16 Ogos 2012 bersama Ahli Majlis…….dan pegawai Majlis

Operasi membuka/ mengalihkan halangan jalan konkrit berrier di Jalan Tanjung dimulakan pada jam 9.30 pagi oleh pekerja unit jalan, Jabatan Kejuruteraan Awam dan bantuan 9 dari anggota Penguatkuasa Majlis. Kerja-kerja pengalihan ini dilakukan dengan menggunakan jentolak Majlis 3. Jumlah konkrit barrier yang dialihkan adalah 5 konkrit berrier pendek, 4 konkrit barrier panjang, 2 perabot jalan. Terdapat 4 konkrit barrier yang pendek telah dibawa ke bengkel Majlis dengan menggunakan lori Majlis……………..

The question on trespass to the Plaintiff's land was only occurred within few hours in a day and the act of trespass had completely stop on the 17 August 2012 itself and it was further put in halt after the Plaintiff obtained an ex-parte and inter-parte interim injunction pending the full disposal of this suit in the High Court on 29 August 2012 and 1 October 2012 respectively. The Defendant has at all material time strictly observed and adhered to the interim injunction order even until now after the disposal of this suit.

The said Land as this Court might refer to the land plan in Exhibit 'IS- 2' of the Afidavit Jawapan Defendan, is at all material time is a 'Kawasan Lapang', meaning that it has not been occupied or put on used by the Plaintiff. Thus, they did not suffer any use of enjoyment of the said Land.

The Plaintiffs act of hiring the security guard on the said Land, to my mind cannot be categorized as the actual loss of damage suffered by them in this suit. It is their own option to safeguard the said Land and thus that the Plaintiff in this application has failed to prove the actual damages suffered by them by the act of trespass committed by the Defendant. 10

The Plaintiffs claim for their damages in this application is inconsistent with the one that they have claimed during the trial of this suit. Previously in the trial, the Plaintiff claimed that their loss and damages suffered was the cost of the used of heavy machine in order to place back the barriers that has been removed by the Defendant which were set up earlier at some part of the said Land by the Plaintiff. But in this application, their claim for damages is premised on the loss suffered on the cost of hiring the security guard to guard the said Land. This inconsistency is purely reflected in the Pernyataan Saksi Plaintiff – Tan Sri Teo Chiang Kok, Ekshibit IR7.

In considering the above reasons, it is best to refer to the case of: LMS Technology Distributions Sdn. Bhd. v. Universiti Malaysia Sabah (UMS)(2012) MLJU 240 and often quoted in the case of: Popular Industries Ltd. v. The Eastern Garment Manufacturing Co. Sdn. Bhd. (1990) 2 CLJ (Rep) 635, where Edgar Joseph Jr. J (as he then was) said as follows: “…..I now turn to consider the crucial question: have the Plaintiffs proved their claim for damages as alleged or at all? With regard to this part of the case, I would preface what I have to say by referring to certain well established principles. It is axomatic that a Plaintiff seeking substantial damages has the burden of proving both the fact and the amount of damages before he can recover. If he proves neither, the action will fail or he may be awarded only nominal damages upon proof of the contravention of a right. Thus nominal damages may be awarded in all cases of breach the contract 11 (see Marzetti v. Williams [1830] 1 B & Ad 415). And, where damage is shown but its amount is not proved sufficiently or at all, the Court will usually decree nominal damages. See, for example, Dixon v. Deveridge [1825] C 2 & P and Twyman v. Knowles [1853] 13 CB 222… On the question of the quality of evidence expected of a plaintiff it is well to remember what Devlin J said in Biggin v. Permanite [1955] 1 KB 422, 438 namely “where precise evidence is obtainable, the Court naturally expects to have it, where it is not, the Court must do the best it can”. Nevertheless, it remains true to say that generally “difficulty of proof does not dispense with the necessity of proof (see Aerial Advertising Co. v. Batchelors Peas [1938] 2 All ER 788, 796 per Atkinson J). A case which affords an illustration of the requirement of reasonable certainty in this area is Ashcroft v. Curtin [1971] WLR 1731 (CA) in which the Plaintiff claiming for diminution of profits of his one man business failed in his claim even though the evidence pointed to a decrease in the company‘s profitability due to the injury, the records produced being too rudimentary and the accounts too unreliable to quantify the loss. So also when, as here, the claim is for the difference between the contract price and a clear and undoubted market price, absolute certainty in proving damages is possible and therefore the Court will expect precise evidence to be given……… Similarly, in the case of : Mohd Johan Ng Abdullah v. Koperasi Pekebun Getah Daerah Mersing Berhad (2008) MLJU 712, Azhar bin Mohamed J (as he then was) had quoted the judgment of the Federal Court in Selva Kumar a/l Murugiah v. Thiagarajah Retnasamy (1995) 1 MLJ 817, 12 “….(1) In Malaysia, there is no distinction between liquidated damages and penalties as understood under English Law, in view of 75 of the Contracts Act 1950 which provides that in every case the court must determine what is the reasonable compensation, “whether or not the actual damage or loss is proved to have been caused thereby” (the word in question)

However, the words in question must be given a restricted construction. Hence, despite the words in question, a Plaintiff who is claiming for actual damages in an action for breach of contract must still prove the actual damages or the reasonable compensation in accordance with the settled principles in Hadley v. Baxendale (1854) 9 Exch. 341; [1843-60] All ER Rep. 461. Any failure to prove such damages will result in the refusal of the court to award such damages….”

Though the above 2 cases relates to breach of contract but the principles are the same. Applying the principles above, it is incumbent upon the Plaintiff to prove the damages or the reasonable compensation for the actual damage or loss in the usual ways. Thus, the plaintiff must prove on the balance of probability the fact of damages and the quantum of the damages he has suffered. Based on the authorities submitted above and by looking at the ex-parte and inter-parte interim order for injunction by the High Court, it is my considered view that the Plaintiff in this case is not entitled to damages as they have failed to discharge the burden of proving reasonable compensation for the actual damage or loss suffered from the act of trespass for one day committed by the Defendant. The failure of the Plaintiff to prove such damage will result in this court to award only nominal 13 damages. Be that as it may, the Court cannot ignore that because of the trespass of the Defendant, the Plaintiff had suffered and having reviewed the relevant Affidavits filed by both parties, the Plaintiff is awarded nominal damages in the sum RM10,000 (inclusive of cost) with 8% statutory interest per annum from the date of this judgment until full payment of the same. Dated 26 March 2018. (DATO’ HJ. MOHAMAD SHARIFF BIN HJ. ABU SAMAH) Judicial Commissioner (NCVC 6) High Court of Malaya Shah Alam, Selangor Darul Ehsan Counsel For the Plaintiff : Dato’ CK Lim with Saif Qamar (Messrs. Owee & Ho) For the Defendant : Dato’ Kamaruzzaman Arif with Sofiah Omar (Messrs. Kamaruzaman Arif, Amran & Chong)