Generally, the pf will begin the speeches but the court has full discretion to control the order of speech.

1. [Type here] ILYANA ISKANDAR [Type here]
PF BEGIN THE CASE
 Generally, the pf will begin the speeches but the court has full discretion to control the
order of speech.
 However, if the nature of the pleadings are such that the evidential burden lies upon the
df to discharge first, the court may direct the df to begin.
M. Ratnavale v S Lourolenadin: the Supreme Court state that there is no legal prohibition
against a pf calling a df to be his witness.
 The position in law is that the matter is left to the discretion of the trial judge according to
the circumstances of the case
Kulandi s/o Muthu v Subramniam s /o Velliapan,: pf claim a sum of rm 6k given as friendly
loan to the df. Df not only pleaded repayment but also claimed over payment and counter
claimed for sum overpaid. The pf claims was dismissed. Df counter claim also dismissed. The pf
only appeal. The court held that the defence being in the nature of confession and avoidance
and loan having been admitted, the burden of proof was on the df to proof the repayment and
overpayment on balance of probabilities. Further, the court stated that it was for the df to put
forward all relevant facts before the court as the burden of proof was on him.
Chew Seok Tee v Lim Kei & Anor – the appellant claimed that the house belonged to her. She
give evidence and called witness in support of her claim. Respondent did not give evidence or
call any witness. The learned president took upon himself the task of procuring further evidence
for the a parties by examining a witness and cross – examine another witness and finally
dismissed the appellant’s claim. The appellant appealed. The court held that the practice
adopted by the learned president was undesirable as it might lead to a miscarriage of justice.
On the facts, the court stated that the learned president should have accepted the evidence of
the appellant, which not contradicted by the respondent and held that the appellant was the
owner of the house. On appeal to the Federal Court by the respondent the court stated that:
“ it is so well established in our law that the judge is not allowed in a civil action to call a witness
whom he thinks might throw some light on the facts without the consent of parties”
O35 r 4 – The Judge before whom an action is tried may give directions as to the order of
speech at the trial. The order of speech normally will be as follows.
a) The pf begins by making his opening address. He will set out the facts indicating the
areas of dispute, summaries the legal principles involved, indicating areas where ruling
have to be made and if necessary the pleadings and the agreed photographs, plans
documents if any are gone through.
b) The pf calls his witnesses who will be subject to examine in chief by the pf’s counsel,
cross – examination by the defence counsel and later re – examination by the pf’s
c) When all the pf’s witnesses have been called, counsel for the df has the right, if he is
calling evidence, to open his case.
d) The df will state the nature of his case and the evidence he seeks to produced;

2. [Type here] ILYANA ISKANDAR [Type here]
e) The df’s counsel will call his witness who will be subject to examination in chief by the
df’s counsel, cross – examination by the pf’s counsel and re – examination by the df’s
counsel;
f) At the conclusion of the evidence, the df counsel and then the pf counsel will make the
closing speeches
g) If a party entitle to make a final speech raises a new point of law or authority the
apposite party may make a further reply only in relation to them;
h) If the df’s counsel elects not to call evidence and wants to make a submission of no case
to answer the pf makes his closing speech followed by the df.
Chong Chee Yan v Germilla Sdn Bhd & Anor : O35 R4(1) of the Rules of High Court 1980
was considered. The court stated that this rule confers on the trial judge the power to give
direction: (i) as to the party to begin and (ii) as to the order of speeches at the trial.
S 101 Ea – Burden of proof . when the person is bound to prove the existence of any fact, it is
said that the burden of proof lies on that person.
Seldon v Davidson: Generally, the party on whom the burden of proof on the pleadings lies
must begin.
S103 – burden of proof as to particular fact. – burden of proof as to any particular fact lies on
that person who wishes the court to believe in its existence.