Bostock-Hill J:

In this application the Plaintiff is seeking in an Originating Summons to obtain an order for the transfer to himself of certain Omnibus Company shares standing in the name of one Foong Onn Kwan (now deceased). The Plaintiff alleges that these shares were bought by him and were held in trust for him by the said Foong Onn Kwan.

The Defendant is one Chan Sau Choon (f) and, although her name appears in the Originating Summons as Defendant, no other mention of her is made in the Affidavits filed by the Plaintiff. She was, however, served, and she has filed an affidavit in reply and in that affidavit she states that she is the widow of the said Foong Onn Kwan deceased and that the Grant of Administration of the estate of the said Foong Onn Kwan has not yet been issued to her. In the course of argument by Counsel it appeared that she has applied for such grant.

The heading of the Originating Summons is as follows:

In the matter of certain shares in Lintang Jalong Omnibus Company Ltd. and in Reliance Omnibus Company Ltd. standing in the name of Foong Onn Kwan and

In the matter of s. 467 (i) of the Civil Procedure Code.

Mr. MacDuff for the Plaintiff stated that the basis of his application was the alleged Trust Deed referred to in the affidavits filed in support of Plaintiff's application, and that Plaintiff was a cestui que trust under that deed. He argued that as such, he was entitled to use the procedure set out in s. 467(i) of the Civil Procedure Code. He also stated that it would be more convenient to have the Originating Summons adjourned into Court and asked for a postponement until the Grant of Letters of Administration should actually have been issued to the Defendant.

Mr. Mahendran, for the Defendant, took two main objections, firstly, as to the procedure under s. 467 (i), and secondly, that serving the Defendant before she had extracted Letters of Administration was wrong in law. It is to be noted that the Defendant is named in the Originating Summons merely in her personal capacity but Mr. MacDuff had to concede in argument that he really wanted her in the Originating Summons in the capacity of legal representative of Foong Onn Kwan deceased.

Dealing first with the second objection, Mr. Mahendran cited Chia Teck Liang V. Tan Soo Khiang. In that case it was decided that an Administrator cannot be sued in respect of a debt due to a deceased person, until Letters of Administration have been granted under seal. Hence, even if Plaintiff were allowed to amend his Originating Summons by suing the Defendant as Administrator of the Estateof Foong Onn Kwan, his Originating Summons would still not be maintainable.

Mr. Mahendran's other objection, namely as to Procedure, also appears to be well founded. He cited Odgers On Pleading, 10th Edn., pp. 11 and 12 but this passage apparently refers to O. 54 r. 1 of the English Rules and not O. 55 r. 3 which corresponds with our s. 467 (i).

Reference to Daniell's Chancery Practice, 8th Edn., Vol. 1, p. 865 and of the cases there referred to makes it clear that this Procedure by way of Originating Summons is not applicable to a case of this nature. What the Plaintiff is really asking is for a decision as to whether there was a valid trust by Foong Onn Kwan deceased in favour of the Plaintiff. Mr. MacDuff was unable to cite any authority to show that procedure by way of Originating Summons under s. 467 (i) was an appropriate form of procedure in such a matter and I am of opinion that his application is misconceived, and that a Plaintiff cannot in an Originating Summons based on an alleged Trust ask for evidence to be heard to prove that Trust. Moreover the question at issue is a question of fact and not of law and will have to be determined in Open Court and is not suitable for determination by the procedure of an Originating Summons.

Accordingly the application is dismissed with costs but such dismissal will not operate to prevent the Plaintiff bringing some o