Suffian LP (read by Lee Hun Hoe CJ (Borneo) delivering the judgment of the Court):

The plaintiff (respondent before us) is landlord of 96 Padungan Road, Kuching. She let the first floor to William Lee. She sued him for vacant possession, contending that he was only a licensee, not a tenant, whose licence had been terminated by effluxion of time. He resisted the claim, contending that he had a tenancy and that it was protected by the Sarawak Rent Control Ordinance, Cap. 86.

On 9 May 1979 when the case came up for trial, the Court was told that he had died and thereupon Counsel for the plaintiff landlord applied under O. 16 r. 46 for his widow to be appointed representative to defend the action. The learned trial Judge consequently ordered that the widow be appointed to represent the estate of her husband, and thereafter she as representative of the estate was substituted for her deceased husband, as defendant (appellant before us).

It will be observed that this order and any order consequent thereon "shall" - in the words of O. 16 r. 46 - "bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the cause, matter or proceeding."

On 15 May the defendant conceded to the entry of judgment and the learned Judge accordingly ordered ("the first order") that the plaintiff recover possession from the defendant.

It will be observed that at this stage the defendant was before the Court not in her personal capacity, but as representative of her husband's estate.

On 19 June 1979 the plaintiff sent the widow and her son, as occupiers, a copy separately of the first order and gave notice that if possession of the premises was not delivered up within 30 days, the plaintiff would levy execution proceedings against each of them. On the following day the plaintiff sent the widow, this time in her capacity as legal personal representative of the deceased's estate, a similar letter.

On 7 August 1979 the plaintiff took out a summons-in-chambers addressed to the widow in her representative capacity and secondly in her personal capacity, and to the son as occupier, for leave to issue a writ of possession to recover possession of the premises. The application was made under O. 47 r. 1(1). That Order reads:

1. (1) A judgment or order that a party do recover possession of any immovable property may by leave to be obtained on ex parteapplication to the Court or a Judge supported by affidavit, be enforced by writ of possession ...

(2) Such leave shall not be given unless it is shown that all persons in actual possession of the whole or any part of the immovable property have received such notice of the proceedings as may be considered sufficient to enable them to apply to the Court for relief or otherwise.

2. Where by any judgment or order any person therein named is directed to deliver up possession of any immovable property to some other person, the person prosecuting such judgment or order shall, without any order for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service of such judgment or order and that the same has not been obeyed.

3. Upon any judgment or order for the recovery of any immovable property and costs, there may be either one writ or separate writs of execution for the recovery of possession and for the costs at the election of the successful party.

In her affidavit in support the plaintiff recited the above facts, said that the widow and son were in actual possession of the premises, and that despite the fact that the three letters had been sent to them and sufficient time had been given to them to vacate or apply to Court for relief, they had deliberately ignored the order.

The widow and son opposed the application. In their affidavit they said that the first order was not binding on them as it was against the estate of the deceased and not against the estate of