JUDGMENT

David Wong Dak Wah JC:

Introduction

[1] This is an application by the plaintiff's counsel for an order that the defendants start their case, which is to prove that the plaintiff is the trustee/nominee of the 55% of the issued and paid up capital of 1st defendant for the 3rd defendant pursuant to an oral agreement.

[2] The undisputed facts are these. The plaintiff is and always has been a registered shareholder in the 1st defendant holding 55 shares of the issued and paid up capital of the company. The 55 shares amount to 55% of the shareholdings in the 1st defendant which was incorporated on the 21 October 1996. On incorporation the plaintiff and the 3rd defendant were appointed the only two directors of the 1st defendant and have remained ever since. On or about 28 June 2005, the plaintiff received a Notice of Extraordinary General Meeting ("EGM") dated 17 June 2005 issued by the 2nd defendant notifying the plaintiff of an EGM to be held on 14 July 2005 to remove the plaintiff as director and to appoint the 4th defendant as director. The notice of EGM was issued upon the requisition of the 4th defendant claiming to hold 60% of the issued capital of the 1st defendant. The 4th defendant's requisition was also dated 17 June 2005. Upon receipt of the aforesaid notice the plaintiff started to make inquiries concerning the status of his shareholdings. Not satisfied by the answers given by the defendants, the plaintiff took out this suit and sought against the 1st, 2nd, 3rd and 4th defendants jointly and severally the following reliefs:

(a) a declaration that the Form 32A share transfer form and the Circular Resolution to approve the share transfer, are invalid, null and void and of no effect whatsoever;

(b) a declaration that all acts, deeds or things done by the 2nd, 3rd and 4th defendants or any of them pursuant to the said Form 32A share transfer form and the Circular Resolution are invalid, null and void and of no effect whatsoever;

(c) an injunction to restrain the 2nd defendant from registering the 4th defendant as a member of the 1st defendant company;

(d) an injunction to restrain the defendants from convening any Extraordinary General Meeting to remove the plaintiff as director of the lst defendant company and to appoint the 4th defendant or any other person as director;

(e) an injunction to restrain the defendants from howsoever acting upon the purported Form 32A and the purported Circular Resolution;

(f) an injunction to restrain the 2nd and 3rd defendants from conducting the affairs of the 1st defendant unless such affairs have been authorised by a duly convened meeting of the directors of the 1st defendant.

(g) damages as against the 2nd, 3rd and 4th defendants;

(h) costs; and

(i) any further or other orders or relief as this Honourable Court shall deem fit.

[3] The defendants' defence revolves basically on the sole ground that there is an oral agreement that the plaintiff holds the 55 shares as trustee/nominee on behalf of the 3rd defendant.

Relevant Laws:

[4] They are O. 35 rule 4 of the r. of the High Court and s. 103 Evidence Act 1950.

Order 35 rule 4(1) RHC states that:

... The judge before whom an action is tried may give directions as to the party to begin and the order of speeches at the trial, and, subject to any such directions, the party to begin and the order of speeches shall be that provided by this rule ...

[5]Order 35 r. 4(2) RHC states that:

... Subject to paragraph (6) the plaintiff shall begin by opening his case ...

[6]Order 35 rule 4(6) RHC states that:

... 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 plainti