Ian H.C. Chin J:

This action was taken out on 12 July 1985 by the plaintiff Lo Khi On, the sole proprietor of the firm Fuji Hairdressing Saloon ("the plaintiff") against Tanjong Aru Hotel Sdn. Bhd. ("the defendants") for repossession of an area measuring 453 sq. ft. known as Lot No. 2 ("the premises"), situated on the ground floor of Tanjong Aru Beach Hotel, and damages for breach of an agreement. The trial commenced on 29 August 1994 and it ended by the afternoon of of the same day. The undisputed facts and the allegations of the case are as follows.

Facts & Allegations

On 20 February 1984 the plaintiff, entered into an agreement ("the agreement") with the defendant, the owner of the property known as Tanjong Aru Beach Hotel at Tanjong Aru, Kota Kinabalu whereby the defendants let to the plaintiff the premises for a term of three years. Possession of the premises was thereafter given to the plaintiff. On 12 November 1984, the defendants entered the premises and evicted the plaintiff. The plaintiff claims that this action of the defendants is in breach of the agreement. The defendants do not deny the re-entry of the premises but the defendants maintain that the plaintiff, in breach of the agreement, had caused illegal massage activities to be carried out in the premises which entitled them to terminate the agreement which they did by a letter dated 12 November 1984. The defendants counterclaim for damages alleging that it was the plaintiff who was in breach of the agreement. From the pleadings delivered, I am of the opinion that the issues are clearly defined, viz:

Issues

(1) Did the plaintiff, in breach of clause 3 of the agreement, cause to be carried out in the premises illegal massage activities;

(2) Did the illegal massage activities, if proven to have taken place and to have been caused by the plaintiffs, prejudice any licence held by the defendants in connection with the defendants' business; and

(3) Did the plaintiff suffer any damages as a result of his eviction from the premises.

The plaintiff's claim for repossession of the premises was not pursued since Mr. Norbert Chin, Counsel for the plaintiff, did not address the Court on the issue and he only confined himself to the question of damages. Having defined the issues, my next task then was to decide who should begin the case.

Who Should Begin

What is also clear from the pleadings, which I will advert in more detail at a later stage, is that the defendants are making all the positive assertions engendered in the said issues and which they will have to prove. On the part of the plaintiff, they need only prove damages. Who then should begin the case in such a situation? Ordinarily, it is the plaintiff who should begin his case (see O. 35 r. 4(2) of the Rules of the High Court 1980). There are exceptions, one of which is O. 35 r. 4(6) which says:

Where the burden of proof of all the issues in the action lies on the defendant or, where there are two or more defendants, and they appear separately or are separately represented, on one of the

defendants, the defendant or that defendant, as the case may be, shall be entitled to begin, and in that case paragraphs (2), (3) and (4) shall have effect in relation to, and as between him and the plaintiff as if for references to the plaintiff and the defendant there were substituted references to the defendant and the plaintiff respectively.

The other exception is in the discretion granted to the Court under O. 35 r. 4(1) to direct who should begin but any defendant seeking to begin where the case is not one within O. 35 r. 4(6) must satisfy the Court that there is a good reason for doing so (Re the Estate of Parry (decd,) Parry v. Fraser [1977] 1 All ER 309). There is no denying that damages, which the plaintiff has to prove, is an issue in our case and thus, the defendants do not carry the burden of proof of all the issues, thereby rendering O. 35 r. 4(6) inapplicable. But the practical difficulty that entails