JUDGMENTBY: TERRELL, AG CJ, MCELWAINE, CJ, GORDON-SMITH, J

TERRELL, AG CJ The plaintiff (respondent) was a ledger clerk employed by the defendant, and his claim is for the sum of $ 926 for wages alleged to be due to him for the period of his service. Before Raja Musa J. the plaintiff recovered judgment for the amount claimed, and the defendant has appealed.

The material portions of the plaint are as follows:--

"1. The plaintiff is a "Kanakka Pillay" (ledger clerk) and resides at

Kuala Selangor. The defendant is a money lender and also resides

at Kuala Selangor.

2. On or about the 12th of June 1935 the defendant engaged the

plaintiff as a kanakka pillay inter alia on the following

terms:--

(a) The plaintiff was to be provided with free board and

lodging and clothing; and

(b) a salary of $ 30 per month.

3. The plaintiff was to work at defendants Kuala Selangor office

and it was agreed that plaintiffs salary was to be kept by

defendant on deposit and paid to plaintiff when his services were

terminated".

These allegations are met by the following paragraphs in the defence:--

"1. Paragraph 1 of the statement of plaint is admitted.

2. With regard to paragraphs 2 and 3 of the Statement of Plaint, in

1935 one A.L.P.S.T.A.R. Kasi Chettiar of Klang informed the

defendant that the plaintiff had no work and wished to gain

experience in an office and requested the defendant to take the

plaintiff into his office for that purpose which the defendant

agreed to do it being agreed that the defendant should provide

the plaintiff with free board and lodging and with such clothing

as it is usual to give employees in Chettiar firms.

3. Save as is admitted in clause 2 hereof the defendant denies the

allegations in paragraphs 2 and 3 of the Statement of Plaint and

in particular denies that he at any time agreed to pay the

plaintiff a salary".

I have set out the relevant portions of the pleadings as Mr. Ramani (defendants counsel) largely rested his case on the suggestion that the defence was not a simple traverse of the plaintiffs allegation, but was in fact a confession and avoidance, that the employment being admitted, there was an onus upon the defendant to establish the case which he had set up, and that the learned trial Judge having found that this onus was not discharged by the defendant, the plaintiff was rightly entitled to judgment.

In my opinion this interpretation of the pleadings is not well founded. The question at issue is not whether the plaintiff was employed, but the terms of his employment. Confession and avoidance under the old Common Law rules of pleading, would be a proper description of a defence which admitted that the plaintiff had been employed upon the terms claimed, but alleged that the plaintiff had been paid in full, or signed a release for sufficient consideration. The defence here is something quite different. The terms of employment alleged by the plaintiff are completely traversed, and put in issue in paragraph 3 of the defence. In addition, in paragraph 2, the defendant sets up a story of his own. He has accordingly two alternative answers to the plaintiffs claim. If he can establish his version, that of the plaintiff must necessarily be disbelieved, but his principal defence is that the plaintiffs story is untrue.

The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the plaintiff must establish his case. If he fails to do so, it will not avail him to turn round and say that the defendant has not established his. The defendant can say "It is wholly immaterial whether I prove my case or not. You have not proved y

Click Here to Read the rest of this document