Abdul Hamid Mohamad FCJ:

In this appeal, the appellant was the judgment debtor and the respondent was the judgment creditor, in the High Court.

The respondent had filed a creditor's petition against the appellant. The appellant filed an application to strike out the petition and the affidavit verifying petition. The application was dismissed by the senior assistant registrar. The appellant appealed to the judge in chambers who dismissed the appeal. The appellant appealed to this court.

Before us only two grounds were raised. We shall confine ourselves to those issues only.

The first ground is that the creditor's petition was not dated.

From the record, we see that at the bottom of p. 2 of the petition the date was written thus:

Bertarikh pada 3 haribulan S 1999.

It is clear that number "1" and some letters are missing before number "3" and after letter "S", respectively. However, on the next page (p. 3) below the "Pengindorsan" the date was clearly written as "Bertarikh pada 13 haribulan September 1999". Further, the precipe chop on p. 1 of the petition clearly shows the date of filing as "13 September 1999".

This ground is a non-issue. It is clear that the petition was dated and that the date is 13 September 1999. This ground is dismissed.

The second ground is that the signature of Tang Tze Yang on behalf of the judgment creditor on the creditor's petition was not attested as required by r. 102 of the Bankruptcy Rules 1969.

Rule 102 reads:

102 Every bankruptcy petition shall be attested. If it be attested in the Federation the witness must be a Solicitor or Federal Counsel or Magistrate or Official Assignee or Registrar. If it be attested out of the Federation the witness must be a Judge or Magistrate or a Consul or Vice-Consul or a Notary Public.

The attestation reads:

(Sgd.)

Tandatangan Saksi: ...

Jeyasingam Balasingam

Advocate & Solicitor

Penang

Alamat: Di Tetuan Ghazi & Lim yang Beralamat

Di Tingkat 19,

Plaza MWE, No. 8 Lebuh Farquhar

10200 Pulau Pinang.

Deskripsi: Peguambela dan Peguamcara

Mahkamah Tinggi

Negeri-Negeri Malaya.

The signing and the attestation took place on 13 September 1999.

On the other hand, the affidavit of truth of statement in petition, also affirmed by Tang Tze Yang on the same day states that it was affirmed in Kuching and before a commissioner for oaths in Kuching, Sarawak.

It was argued that Tang Tze Yang could not have signed two documents on the same day, one in Penang and one in Kuching.

The learned judge held that it was only an inference that the petition was signed and attested in Penang based on the solicitor's firm address in Penang. In other words, the learned judge accepted the explanation from the bar by learned counsel for the respondent that the petition was signed in Kuching before the attesting solicitor who was in Kuching.

But it should be noted that no affidavit was filed by the attesting solicitor to clarify the dispute. Tang Tze Yang, who affirmed and filed four affidavits besides the affidavit of truth of statement in the petition, too did not say where his signing and the solicitor's attestation took place.

Learned counsel for the respondent, in the course of his submission in the High Court, informed the court that the attesting solicitor in fact went to Kuching and attested the signature of Tang Tze Yang in Kuching. The learned judge appears to have accepted that assertion.

But, that is merely a statement from the bar. It is not evidence and should not have been accepted as evidence.

However, even if it is true that the attesting solicitor did go to Kuching and attested Tang Tze Yang's signature in Kuching, that raises another point of law: Has an advocate and solicitor of High Court Malaya the authority to attest a signature in Kuching, Sarawak?

From r. 102 of the Bankruptcy Rules 1969reproduced earlier we note that if a petition is attested in the Federation, the witness must be a solicitor or Federal Counsel or Magistrate or official assignee or registrar. If it