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Case Update: The Doctrine of Election in Appellant's Pursuit of Damages

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15 May 2024

CIVIL PROCEDURE
Damages – Land Deprivation – Trespass – Compensation – Doctrine of Election – Restitutionary Damages – Compensatory Damages

Amsiah Rahim v Borneo Samudera Sdn Bhd
Civil Appeal No. S-02(IM)-377-02/2021 | Court of Appeal
- see the grounds of judgment here

Facts Amsiah Rahim (the ‘Appellant’) purchased a piece of land in 1998, becoming its registered owner, while Borneo Samudera Sdn Bhd (the ‘Respondent’) was in possession. After a demand for vacant possession in 2012, the Appellant sued for trespass when denied. The High Court found the Respondent liable but awarded only nominal damages. The Appellant appealed, leading the Court of Appeal to send the case back for a damages assessment. During this, the parties agreed to address compensation entitlement and amount. However, the Appellant introduced further issues regarding damages, not agreed to by the Respondent. Despite a trial to assess damages, the High Court Judge, citing the doctrine of election, declined any award, stating the Appellant's shift from compensatory to restitutionary damages as reason. Additionally, the Judge rejected the Respondent's claim for profits because the award of damages should not include an element of profit. Hence, this appeal.

Issue 1. Whether the High Court was correct in not awarding any damages based on the doctrine of election, despite conducting a trial to assess damages.

Held In allowing the appeal, Justice Datuk Ravinthran a/l N. Paramaguru in delivering the decision of the Court of Appeal held that the High Court had erred in declining to make any award of damages. The Court of Appeal found that the Appellant had pleaded compensatory damages in the statement of claim and provided evidence of loss during the trial. While there was a change in submission at the end of the trial, where counsel argued for restitutionary damages based on the Respondent's profits, this change did not prejudice or disadvantage the Respondent. The Court of Appeal further noted that while the doctrine of election prevents parties from adopting inconsistent positions, it is meant to prevent surprise, unfairness, and double claims that could prejudice Defendants. In this case, there was no inconsistency in causes of action or remedies pursued by the Appellant. Further, the Appeal Court applied established principles that damages for trespass should restore the injured party to a position they would have been if no injury had occurred. It also recognized that a claimant can seek either compensation for loss or restitution based on profits gained by a Defendant during trespass. Considering evidence provided by an expert witness regarding loss suffered by the Appellant due to being deprived of her land, including potential oil palm cultivation profits, the Court of Appeal concluded that an award of general damages should be granted to compensate her appropriately.

Zul Rafique & Partners
{15 April 2024}

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