Lee Hun Hoe JC:

Originally plaintiff prayed for (a) the revocation of the letters of administration granted to defendant, (b) a declaration that plaintiff should be entitled to that parcel of land described as JOT No. 1625 of about 1.25 acres, and (c) an order that plaintiff should be granted letters of administration. At the hearing Mr. Seah for plaintiff informed the Court that he was abandoning (b) and (c). So the only matter for the Court to decide is (a).

Deceased, Liat anak Belayong died some years ago at Rumah Jana, Sarikei. He had three sons and three daughters. Ganing is the eldest son. Plaintiff is the second son and Gayai the youngest son. The three daughters are called Jaliah, Isi and Amih. As soon as his children were married they lived separately from deceased. Jaliah is now dead. She had a son, Adau who married defendant. Adau had passed away. Since her marriage defendant had been in deceased's "bilek" (room i.e. the family household unit) and still remains there. On 22 November 1963 at the request of Ganing and with the agreement of Tuai Rumah Jana the probate officer, Sarikei, granted letters of administration to defendant because it was represented to the probate officer that defendant looked after deceased's "bilek" and was solely responsible for the "perantu" (the last feast for the dead).

In Sarawak it seems the grant of probate and letters of administration is in the hands of the administration and there does not appear to be any provision for challenging the decision of the probate officer by way of appeal to the Courts. It is not clear to me how an administration action may be brought before the Courts in Sarawak. It seems to me that by asking the Court to revoke the grant of letters of administration plaintiff is in effect challenging the decision of the probate officer. It is therefore questionable whether this is the proper procedure for doing so. Further it is questionable whether defendant should have been made a party since the action has nothing to do with defendant's duty as an administratrix. In Foo Sam Tek v. Probate Officer, Simanggang [1960] SCR 17, 18 and Re Chew Siew Khim [1964] MLJ 412 the decision of the probate officers were challenged by way of certiorari and mandamus. Procedural difficulty is clearly expounded in the former case when Ainley CJ said:

There is no doubt that the probate officer had jurisdiction to pass over the appellant if in his opinion the appellant was unfit to act. He had discretion in the matter which of course he was bound to exercise in a just and proper manner. The appellant however says that the probate officer has shown, by his order, that he was not acting in a proper manner. His difficulty has been to find an effective method of challenging the probate officer's decision in the Courts and here I have sympathy with him. It is a peculiarity of our law that the grant of probate and administration is not in the hands of officers of the Court, but has been placed in the hands of officers from whose decision no channel of appeal is apparently available. Indeed I find it difficult to understand how an administration action could properly be brought before the Courts of this country. However the appellant faced with these difficulties, adopted the expedient of instituting proceedings by way of certiorari and mandamus, and he followed the English procedure as he was entitled to do by virtue of s. 24(6) and (7) of the Crown Proceedings Ordinance. In short he applied to the High Court for leave to apply for the orders sought. The learned Judge dismissed the application and without seeking leave to appeal the appellant appealed to this Court. His authority for doing so lies in the English practice, and I have no quarrel with the appellant on this ground.

The defendant was not represented by Counsel and I therefore have no opportunity of hearing legal argument on points of law from her. Mr. Seah for the plaintiff submitted that the procedure he adopted is co