Nik Hashim FCJ:

The Question

[1] On 20 June 2006, this court granted leave to appeal on the following question:

Whether a citation under O 72 r 7 of the Rules of the High 1980 (the RHC) can be issued against a representative of the deceased holding a grant of a letter of administration merely by filing a praecipe together with an affidavit verifying the facts without filing any formal application by way of a summons in chambers.

Background

[2] The appellant, the administrator of the estate of his late father (the deceased), was the citee while the respondents, the brothers and sisters of the deceased, were the citors. The appellant had been granted a letter of administration for the estate of the deceased; the respondents, claiming that the said grant of the letter was defective, disclosed that they intended to file a writ against the appellant to cancel or revoke the said grant. For this purpose and as a condition precedent before the said writ could be issued, the citors applied by filing a praecipe together with a verifying affidavit for the issuance of a citation pursuant to r 8(2) of O 72 of the RHC, which the learned senior assistant registrar (the SAR) granted on 29 November 2000. On appeal the learned Judicial Commissioner of the High court affirmed the SAR's decision and dismissed the appellant's application to set aside and cancel the citation. On appeal to the court of Appeal, the appellant contended that the citation should be set aside as the citation was not applied by way of a summons as required by r 18 of O 72 of the RHC. The court of Appeal held that the manner of applying for the citation is by a praecipe supported by a verifying affidavit as required by r 8(2) of O 72 of the RHC and dismissed the appeal (see Yap Teck Ngian v. Yap Hong Lang & Ors, [2006] 6 MLJ 607). Hence the question before this court.

[3] Before us, learned counsel for the appellant repeated his submission that an application for citation must be made by way of a summons in chambers. Otherwise, he said it would be an irregularity which cannot be cured and therefore the whole proceeding under the citation would be rendered a nullity and cited O 72 r 18 and O 32 r 1 of the RHC in support of his submission. Order 72 r 18 states:

Except where these rules otherwise provide, any application to the court in a probate cause or matter may be made by summons. (emphasis added)

Whereas O 32 r 1provides:

Except as provided by O 25 r 7, every application in Chambers must be made by summons in Form 62.

He also submitted that in neither r 7 nor r 8 of O 72 is there any provision which allows an ex parte application to issue a citation by merely filing a praecipe and affidavit without an application by way of a summons in chambers.

Finding Of This court

[4] With respect, we do not agree with the appellant.

1

Order 72 r 7 - Citation to bring in grant

In an action for the revocation of the grant of probate of the will, or letters of administration of the estate of a deceased person, a citation against the person to whom the probate or letters of administration, as the case may be, was or were granted requiring him to bring into and leave at the Registry the probate or letters of administration, as the case may be, may be issued on the application of the plaintiff.

Order 72 r 8 - Citation

(1) A citation under r 5 or 7 must be issued out of the Registry and must be settled by the court before it is issued.

(2) Before such a citation is issued an affidavit verifying the statements of fact to be made in the citation must be sworn by the person applying for it to be issued:

Provided that