Singapore Gems Co v The Personal Representatives for Akber Ali (deceased)

• Jurisdiction: Singapore
• Judge: Chao Hick Tin J
• Judgment Date: 28 February 1992
• Neutral Citation: [1992] SGHC 42
• Docket Number: Suit No 1940 of 1990
• Date: 28 February 1992
• Published date: 19 September 2003
• Year: 1992
• Plaintiff Counsel: Chida Peri (Chida Peri & Co)
• Citation: [1992] SGHC 42
• Defendant Counsel: Sahul Hameed (Hameed & Co)
• Court: High Court (Singapore)
• Subject Matter: Setting aside,Grounds for,Judgments and orders,Civil Procedure,Default judgment,Letters of administration,Entitlement to appoint Official Assignee to accept service of writ,Whether administratrix may be sued in representative capacity,O 15 r 6A(4)(a) Rules of the Supreme Court 1970,Probate and Administration,Administration of assets,Party to be sued,Entitlement to apply to appoint Official Assignee to accept service of writ,Parties,Arguable or triable issue,Suit commenced against estate of deceased before extraction of grant of letters of administration

This was an appeal against a decision of the deputy registrar refusing, inter alia, to set aside the writ of summons herein, the service of the writ on the Official Assignee and a judgment obtained by default of appearance.

The plaintiffs are, and were at all material times licensed moneychangers. The defendants to this action were `the personal representatives of Akber Ali Mohamed Bukardeem, deceased`. I shall hereinafter refer to Akber Ali Mohamed Bukardeem as `Akber`. Akber died intestate in Singapore on 29 January 1985. Prior to his death he was also in the moneychanging business. He operated his business at several branches.

On 11 October 1985, on the application of Haseena Beri Akber Ali (`Haseena`), the wife of Akber, and Abbas Rowther Mohd Hussain Sahabudeen (`Sahabudeen`), letters of administration were granted to them. However, up to the time of the hearing of the appeal before me, the grant had not yet been extracted. Sahabudeen is a relative of Haseena and was managing one of the branches of Akber`s business.

The plaintiffs claimed that during Akber`s lifetime, they had been supplying foreign currencies to him on credit. As at the date of Akber`s death, he owed the plaintiffs the sum of $307,000, which was the subject of the present action.

The plaintiffs applied to court by summons-in-chambers to appoint the Official Assignee to represent the defendant estate. The plaintiffs, through one of the partners, Abdul Salam s/o Mohamed Gani, explained that they had, in an earlier suit, Suit No 146 of 1989, sued Haseena and Sahabudeen as the administratrix and co-administrators of Akber`s estate for the same sum. However, that writ was set aside on the ground that Haseena and Sahabudeen had yet to extract the order of court on 11 October 1985 appointing them as administratrix and co-administratrix of the estate. Subsequently, but before the plaintiffs instituted the present action, the plaintiffs` solicitors wrote to the solicitors of Haseena and Sahabudeen, requesting for the latter`s consent to represent the estate in the present action. There was no response. Consequently, the plaintiffs` solicitors wrote to the Official Assignee and obtained his consent to represent the estate in the present action. By then, there were only about three months left before the limitation period would have expired.

Pursuant to an order of court of 6 November 1990, the present writ was served on the Official Assignee on 4 December 1990. No appearance was entered. Accordingly, on 19 December 1990 a judgment for the sum claimed was entered against the estate with costs fixed at $450.

On 8 January 1991, Haseena and Sahabudeen (hereinafter collectively referred to as `the applicants`) applied by summons-in-chambers to set aside:

(i) the present writ;

(ii) the order of court of 6 November 1990 appointing the Official Assignee to represent the estate;

(iii) the service of the writ on the Official Assignee on 4 December 1990; and

(iv) the judgment against the estate for $307,000 plus costs of $450.

In the alternative, they prayed that they could be appointed to represent the estate or be made parties to the proceedings. They also prayed that execution of the judgment be stayed pending the application.

It is of interest to note the grounds advanced by the applicants to support the application. They said that as on 11 October 1985 letters of administration of the estate were granted to them, they were the proper parties to be sued. They asserted that it was wrong to appoint the Official Assignee to accept service of the process since letters of administration had already been granted to them. They further contended that on the merits the estate did not owe the plaintiffs the sum claimed.

The deputy registrar dismissed the application with costs fixed at $700. The applicants appealed to a judge-in-chambers. Having heard the parties, I dismissed the appeal and now give my reasons.

Were the proper parties sued?

The first question that arose for consideration was whether the plaintiffs had sued the wrong party. The relevant provisions of the Rules of the Supreme Court 1970 (`the RSC`) are set out in O 15 r 6A, and they are as follows:

(6) A(1) Where any person against whom an action would have lain has died but the cause of action survives, the action may, if no grant of probate or administration has been made, be brought against the estate of the deceased.

(6) A(4) In any such action as is referred to in paragraph (1), or (3) -

(a) the plaintiff shall, during the period of validity for service of the writ or originating summons, apply to the Court for an order appointing a person to represent the deceased`s estate for the purpose of the proceedings or, if a grant of probate or administration has been made for an order that the personal representative of the deceased be made a party to the proceedings, and in either case for an order that the proceedings be carried on against the person appointed or, as the case may be, against the personal representative, as if he had been substituted for the estate;

(6) A(6) Where an order is made under paragraph (4) appointing the Official Assignee to represent the deceased`s estate, the appointment shall be limited to his accepting service of the writ or originating summons by which the action was begun unless, either on making such an order or on a subsequent application, the court, with the consent of the Official Assignee, directs that the appointment shall extend to taking further steps in the proceedings.

(6) A(8) Where no grant of probate or administration has been made, any judgment or order given or made in the proceedings shall bind the estate to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceedings.

Let me first say that I find that the conduct of the applicants leaves much to be desired. As I have indicated above, in Suit No 146 of 1989, the plaintiffs had sued Haseena and Sahabudeen as the administratrix and co-administrators of Akber`s estate. But on their application, that writ served upon them was set aside on the ground that they should not be sued in their representative capacity as they had yet to extract the letters of administration. In those proceedings, they contended that it was the grant under seal, and not the order of court that grant should issue, which conferred status. However, in this application, the applicants took just the opposite stand. Counsel for the applicants told me that the stand they took in Suit No 146 of 1989 might well be wrong because they were not aware of the case of Chia Foon Sian & Anor v Lam Chew Fah & Anor. [1955] MLJ 203 When writing these grounds, I called for the file in that suit and from the notes it was clear that the applicants herein had then relied on Govindasamy Pillay & Sons Ltd v Lok Seng Chai & Ors. [1961] MLJ 89 In Govindasamy Pillay, [1961] MLJ 89 the case of Chia Foon Sian [1955] MLJ 203 was extensively discussed. So there was no question then of the applicants not being aware of Chia Foon Sian. [1955] MLJ 203

That was not all. As I have mentioned above, in the instant case, before the plaintiffs applied to the court to appoint the Official Assignee to represent the estate, they first approached the applicants who showed no interest. They did not bother to respond. Now they complain and wish to represent the estate. They seem to behave as if the legal process is at their beck and call. This comes close to abusing the process of the court.

Be that as it may, under r 6A(1), an action may be brought against the estate of a deceased if no grant of probate or administration has been made. The first issue therefore was whether, in the circumstances of this case, a grant of administration had been made in favour of the applicants. I shall first refer to the case relied upon by the applicants, Chia Foon Sian & Anor v Lam Chew Fah & Anor. [1955] MLJ 203 That was an action by the administrators of the estate of a deceased for an account of moneys belonging to the estate in a partnership in which the deceased and the defendants had been partners. Letters of administration were granted to the plaintiffs on 19 September 1947 which were not extracted until 18 August 1950. Whitton J, after considering the authorities, held [at p 205] that:

... it is the act of the court (performed in Singapore in uncontested petitions by the registrar) which confers upon an administrator his capacity and title, and that while for various practical purposes it may be essential for the administrator to extract the grant this act does not itself confer status. From this conclusion I hold that the plaintiff acquired the character of administratrix on 19 September 1947.

It should be noted that the point in issue in Chia Foon Sian [1955] MLJ 203 was not at all similar to the instant case. Whitton J could have reached the same decision there on the doctrine of relation back. It seemed to me that the case of Govindasamy Pillay & Sons Ltd v Lok Seng Chai & Ors [1961] MLJ 89 was more on point. In that case the plaintiffs claimed against the defendants as administratrix and co-administrator of the estate of the deceased person. The question that arose for determination was whether a person who had obtained an order from the registrar for the grant of letters of administration to issue could be sued in a representative capacity before the grant was extracted by him. Ismail Khan J refused to accept the views expressed in Chia Foon Sian [1955] MLJ 203 and held that a person who had obtained a grant of letters of administration but who had not yet extracted such a grant could not be sued in a representative capacity, and that it was the grant under seal, and not the order of court that grant should issue, which conferred status. In coming to his decision, he relied substantially on the definition of the...