A Power of Attorney must be registered to be valid; the failure to register renders it unenforceable, with no retrospective validity recognized post-death.

JUDGMENT

Mohd Arief Emran Arifin JC:

Introduction

[1] The Defendant has sought leave from this Court to seek the various questions of law under O 14A to be determined by this Court.

[2] However, having considered the issues and pleadings between parties, I am of the view that it would be appropriate to consider the following questions under O 33 r 2 Rules of 2012 before this matter is fixed down for trial:-

(a) (Question 1)

Whether the failure to register the Power of Attorney dated 30-41987 renders the whole suit to be invalid?; and

(b) (Question 2)

Whether the Plaintiffs does not have a valid cause of action against the Defendant based on the said Power of Attorney?

[3] I am of the opinion that this will save time and costs on the issue of the Power of Attorney and will reduce the issues pending between parties at trial. I refer to the leading case on this point, the decision of Court of Appeal in Petroliam Nasional Berhad v. Kerajaan Negeri Terengganu , 2003 MarsdenLR 1685 .

Decision Of This Court

Question 1

[4] It is clear that the Power of Attorney issued by the late Pakri @ Birayee a/p Periakarpan was not registered/deposited with the Senior Assistant Registrar of the High Court pursuant to s 4 of the Powers of Attorney Act 1949 .

[5] Section 4 of the Power of Attorney Act 1949 is reproduced below:

4. (1) Except as hereinafter provided no instrument purporting to create a power of attorney shall, after the commencement of this Act, have any validity to create such power within *Peninsular Malaysia until:

(a) a true copy of the said instrument duly compared therewith and marked by the Senior Assistant Registrar with the words "true copy"; or

(b) where the original instrument is deposited in the registry of the Supreme Court in Singapore, an office copy of such instrument, has been deposited in the office of a Senior Assistant Registrar.

(2) If the instrument whereof a true copy or an office copy is so deposited is in any language other than the national language or English there shall also at the same time be deposited a translation into the national language or English thereof certified by an interpreter attached to the Court qualified to interpret in the language in which the instrument is written, or, if there be no such interpreter, a translation into the national language or English verified by a statutory declaration of some person qualified to translate from the language in which the instrument is written into the national language or English to the effect that such translation is to the best of his knowledge and belief a true translation.

Fees

(3) There shall be payable in respect of the deposit of documents under this section such fees as may from time to time be prescribed.

Exception

(4) Subsection (1) shall not apply to instruments executed and used for the sole purpose of carrying out transactions in the office of a Registrar of Titles or a Land Administrator or a Chief Inspector or Senior Inspector of Mines, provided they are attested in accordance with any law for the time being in force regarding the attestation of such instruments.

[6] Failure to deposit a Power of Attorney in the applicable High Court renders the instrument unenforceable in law. That is clearly the intention of Parliament as seen in the said statutory instrument.

[7] I also refer to the decision of Alice Loke JC in Sukhbir Singh Gian Singh v. Hafez Othman & Anor, where on the issue of the validity of a power of attorney that was not deposited pursuant to s 4 before the act of bankruptcy of the deponent, the Court held:

"[20] However, the requirement in s 4 must also be satisfied before the PA can be said to be validly created. In the context of the present case, the deposit of the power of attorney in the manner provided by s 4 was only completed on 10 January 2013. By this date, the donor had become a bankrupt.

[21] Counsel for the Plaintiff argued that once deposited in accordance with s 4, the PA becomes valid from the date it was executed. It has retros