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1986 MarsdenLR 917

SUPREME COURT (KUALA LUMPUR)

SEAH, J, SYED AGIL BARAKBAH, J & WAN HAMZAH, SCJJ

NKM HOLDINGS SDN BHD
versus
PAN MALAYSIA WOOD BHD

CIVIL APPEAL NO 277 OF 1984

Decided On : 04-23-86

Advocates:
PS Ranjan for the appellant.
WSW Davidson for the respondent.
Solicitors: Ng Ek Teong & Partners; Azman, Davidson & Co.

Seah SCJ

(delivering the Judgment of the Court): We dismissed the appeal as we were satisfied that the learned judge had properly exercised his discretion in dispensing with the advertisements either in the Gazette or in the newspapers of a new date for the hearing of a winding-up petition on the facts of this particular case. We would be content to rest the matter there had it not been for the fact that the learned judge spoke of the Gazette in language that might be wrongly interpreted. The learned judge said (at [1985] 2 MLJ 390, 391):

"I agree with Mr. Davidson that the need to gazette has indeed deteriorated into a mere formality and in the face of the existence of widely circulated daily newspapers has perhaps become an anachronism."

With respect to the learned judge, we are unable to agree with his view. Advertisement of a winding-up petition in the Gazette is a statutory requirement [see Rule 24(a) of the Companies (Winding-up) Rules 1972] and deliberate noncompliance with this provision may result in adverse consequences. It must always be borne in mind that we are Judges, not legislators. The constitutional function of the courts is not only to interpret but also to enforce the laws enacted by Parliament. In enforcing the law we must be the first to obey it. It should be noted that the power of a Court to proceed in a particular course of administering justice, was one of substance and not merely of form. The duty of the Court, and its only duty, is to expound the language of the Act in accordance with the settled rules of construction. The Court has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter for private judgment. It seems to us to be unwise as it is unprofitable to cavil at the policy of an Act of Parliament, or to pass a covert censure on the Legislature. [See Lord Chelmsford in R v Hughes (1866) LR 1 PC 81, 91 and Lord Macnaghten in Vacher & Sons v London Society of Compositors [1913] AC 107.

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