Whitley J:

I have had an opportunity of considering the preliminary objection taken by Mr. Hogan and in view of the conclusion to which I have come, I directed the Registrar to notify Counsel that no witnesses need attend today.

The point taken was that as the subject matter of this action is the administration of a public charity the Attorney General alone can sue. The case of i Yeo Him & Ors v. Yeoh Cheng Kang & Ors 4 Kyshe 500 is direct authority on this point. That case was similar to the present one in that it concerned the administration of a "Seh" or tribal kongsi and that there were allegations of breach of trust and a prayer for the removal of trustees. It was held by the Court of Appeal that the "Seh" or tribal kongsis in these Settlements are public charities and that the Attorney General is the only person who can sue in any suit relating to them and that the objection that the Attorney General ought to be and is not such a party is fatal, although the suit may have proceeded through various stages and even to final judgment and appeal. Such an objection cannot be waived by the parties to the suit.

It is sought to distinguish that case on the ground that the Attorney General was not made a party at all whereas in the present case he is a defendant and some support is to be found for that distinction in the judgment of Sproule, Acting Chief Justice, in the Singapore case of Chua Sin Ghee v. Chua Tian Choon,* [1933] SSLR at p. 565, where he held that the Penang case (Yeo Him & Ors v. Yeo Cheng Kang & Ors to which I have just referred) was not concerned with any question whether the Attorney General should be plaintiff rather than defendant but only with the fact that he was not a party at all, and should have been following upon the finding, that the trust was a public charity. The learned acting Chief Justice then held that so far as the necessary presence of the Attorney General was concerned it was sufficient that he was a defendant.

Mr. Hume informed me that in another unreported case Cobbett J had held similarly, but I was given no details as to that case. It would appear from the report of the Singapore case that there was no argument as to the reasons which have led the Legislature and the Courts in England to require and hold that in such cases the Attorney General is the only proper person to sue.

That being the state of the authorities in this Colony is there anything in the present case or in our local law which can entitle me to disregard the very clear ruling of the Court of Appeal? Section 59 of Ordinance No. 22 (Crown Suits) provides as follows:

59. All suits and proceedings in the Court relating to charities or otherwise in which the Crown is interested, or in which the interests of the public are affected, or in which if brought in England the Attorney General of England would be, or would be made, a necessary party as plaintiff or defendant, whether by himself or by relation of parties, shall be brought and had in the name of the Attorney v. General of the Colony as plaintiff or defendant; and he shall have and exercise therein the same rights, duties, and powers as the Attorney General of England would have and exercise in England in similar cases so far as the circumstances of the Colony and the constitution of its Government and Courts admit.

It was argued that the effect of this Section is to make it immaterial whether the Attorney General is plaintiff or defendant so long as he is a party, but I do not think that the Section goes so far as that. It doe not purport to create a new practice; it merely provides that in suits regarding charities and public interest's the practice and the position of the Attorney General shall be substantially the same as in England and that where he would be a plaintiff in England he should be plaintiff here and where he would be a defendant in England he should be a defendant here.

It is, I think, clear on reference to the authorities that in Engl