Gill J:

This is an application by the municipal councillors of the Town and Fort of Malacca as trustees of the municipal fund established under s. 26 of the Municipal Ordinance (SS Cap. 133) for the determination of the following question:

(1)whether payment of the salary and allowances of the first defendant in accordance with the agreements made between the plaintiffs and the first defendant dated 5 December 1958 and 30 March 1962 in authorized under the Ordinance for the purpose of s. 29(p).

(2)Whether the first defendant or the second defendant or neither of them is lawfully empowered to exercise the statutory functions of the municipal secretary in relation to the municipal fund and more particularly under ss. 16(1) and 27(2) of the Municipal Ordinance (Cap. 133).

(3)If there is no lawfully appointed municipal secretary whether the councillors are or may be personally liable for any breach of trust arising from the absence of a lawfully appointed municipal secretary and if so whether this honourable Court may relieve such of the councillors as support this application from personal liability for the same under the provision of s. 60 of the Trustee Ordinance 1949 and give directions for the lawful management of the municipal fund and confer any necessary powers on the councillors under s. 56.

The facts in support of the application as set out in the affidavit of the president of the municipality, Enche Hasnul bin Abdul Hadi, dated the 28 March 1964 are as follows. On or about 20 October 1958 No. 4 committee of the council after interviewing various candidates decided to recommend that Enche Mohamed Ali bin Sallet, the first defendant to these proceedings, be appointed municipal secretary and treasurer, and this decision was confirmed at the council meeting held on 19 November 1958. An agreement for service was signed between the municipal councillors and Enche Ali on 5 December 1958, in accordance with the terms of which agreement Enche Ali took up his appointment as municipal secretary on 1 January 1959.

The power to appoint the municipal secretary then vested in the Governor-in- Council under s. 3 of the Municipal Ordinance (SS Cap. 133). The recommendation of the council for the appointment of Enche Ali was presumably referred for approval by the Governor-in. Council, and the following notification was published in the Malacca Gazette as Gazette Notification No. 36 dated the 19 February 1959:

In exercise of the powers conferred by s. 3 of the Municipal Ordinance (SS Cap. 133) is amended by the Municipal (Amendment) Ordinance 1956 the Governor-in-Council hereby appoints Enche M Ali bin Salleh as Secretary of the Municipality of the Town and Fort of Malacca, with effect from 1 January 1959, vice Mr. Ong Kim Leong who ceases to act in appointment.

On 30 August 1961, in accordance with the terms of his agreement of service with the council, Enche Ali gave notice to the councillors of his desire to continue in the employment of the council after the period of his engagement. At the meeting of committee No. 4 held on 13 September 1961 it was unanimously agreed to continue the contract of Enche Ali and this decision was confirmed at the council meeting held on 20 September 1961.

I pause here to mention that the contract of service of the 5 December 1958 was for a period of three years, but cl. 7 of the agreement provided that the council shall be at liberty to terminate this agreement at any time whatever upon paying to the officer a sum equivalent to three months' salary, and cl 8 of the agreement provided that the officer may terminate the agreement by giving to the council three calendar months' notice. The agreement also provided as to what salary was to be paid to the officer during the first, second and third years of big service.

On 30 March 1962 a supplementary agreement was entered into between the municipal councillors and Enche Ali, under which Enche Ali was to be employed for a further period of t