An undischarged bankrupt lacks legal standing to contest proceedings regarding their property without prior sanction from the Director General of Insolvency.

[1] This is an appeal against the decision of the Director of Land and Surveys who affirmed the decision of the Assistant Collector of Land Revenue (ACLR) at Labuk-Sugut Sub-District of the District of Beluran in Land Enquiry 81 of 2010. The ACLR ordered the sale of the appellant's land which was subject to a statutory charge in favour of the 1^st respondent. The instant appeal is brought by way of originating summons under s 41 of the Sabah Land Ordinance (Cap 68). Although, the Director of Lands and Surveys is not a party to the foreclosure proceedings, the appellant has joined him as a respondent in this appeal.

Background facts

[2] The appellant had obtained a fixed loan facility in the sum of RM100,000 from the 1^st respondent sometime in 1997. As security for the loan, the appellant charged his land (NT 083019381) in favour of the 1st respondent on 10^th March 1997. The appellant defaulted in repaying the loan and the 1^st respondent obtained judgment on 19^th August 1999. The 1^st respondent first attempted to realize the statutory charge via Land Enquiry No. 7 of 2004. The ACLR granted an order for sale. However, the Director of Lands and Surveys allowed the appeal on the ground that the amount payable was not stated in Schedule K which was dated 28^th February 2008. The 1^st respondent instituted fresh foreclosure proceedings via Land Enquiry 81 of 2010 which was heard on 30^th November 2010. However, by that time the appellant had become a bankrupt as on 20^th December 2006, an adjudication order and receiving order had been made against him. In the affidavit in opposition, the 1^st respondent has stated that the then counsel for the 1^st respondent had objected to the presence of the appellant at the Land Enquiry proceedings on the ground that he was an undischarged bankrupt. This averment is not denied by any subsequent affidavit by the appellant. The Director of Insolvency did not participate in the Land Enquiry proceedings before the ACLR. However, he issued a letter dated 14^th October 2011 stating that he had no objection to the application of the 1^st respondent. In the event, the ACLR granted the application of the 1^st respondent and granted the order for sale on 13^th March 2012. The appellant appealed to the Director of Lands and Surveys. The appeal was dismissed on the ground that the appellant who is a bankrupt had no locus standi to maintain the appeal as no prior sanction was obtain from the DGI.

Issues

[3] Numerous issues had been raised by the appellant and the 1^st respondent in this case. Some of the issues are irrelevant or have little bearing on the instant appeal. For example, the appellant has submitted that the law firm of Messrs Alex Pang & Co cannot represent the 1^st respondent. The reason is that its founder and senior partner, Mr Alex Pang Hock Foh died recently on 11^th March 2014. Therefore, the appellant who appeared in person, argued that the firm has been dissolved automatically. In my opinion, this argument has absolutely no merit. The court need only be concerned with the right of audience of Miss Mary Anne Poh who represented the 1^st respondent before me. This is no issue that she is not qualified or that her practicing certificate has been terminated. It is noteworthy that even in cases where the practicing certificate of an advocate is not valid, the courts will not penalize an innocent litigant. In Bank Bumiputra Malaysia Bhd v. Mohd Ibrahim Salleh & Ors, [1999] 5 MLJ 778 Abdul Malik Ishak J (as he then was) held on the authority of Richards v. Bostock [1914] 31 TLR 70 that proceedings were not invalidated merely because of the failure of an advocate to obtain a proper practicing certificate. Ian Chin J in Borneo Housing Mortgage Finance Berhad v. Voo Kee Chang & Anor