JUDGMENT

Chong Siew Fai CJ (Sabah & Sarawak):

This appeal concerns only one question respecting which leave to appeal to this court was granted on 12 November 1996. The question is: Whether a justice of the peace in Sabah is competent to attest an affidavit in bankruptcy petition having regard to s. 128(a) of the Bankruptcy Act 1967 and the related legislations. In the instant case under appeal, the affidavit is one verifying a bankruptcy petition.

Two other appeals are on the same issue ie, Appeal No. 02-18-1996(S) (between Goh Bun Kwee and Malayan Banking Berhad), and Appeal No. 02- 19-1996(S) (between Yee Pak Kui and Malayan Banking Berhad). It has been agreed by all parties through their counsel that the decision in this appeal shall be binding upon those two appeals.

Background Facts

Narration of the facts in this appeal would have to start with the respondent's/ petitioning creditor's bankruptcy petition because, save for the verifying affidavit made on 2 November 1993, the appeal record does not include any document made or filed earlier than the date of the said petition. On 4 November 1993 the petitioning creditor presented a bankruptcy petition against the judgment-debtor Hong Kim Sime (appellant) in the High Court in Tawau, Sabah, for failing to comply with a bankruptcy notice dated 1 March 1993 requiring the judgment-debtor to pay a total sum of RM422,976.86 (made up of a judgment sum, interest and costs) by 11 May 1993. The petition was verified by the affidavit attested by a justice of the peace in Sabah.

By a notice dated 24 June 1994 taken out under r. 117 of the Bankruptcy Rules 1969, the judgment-debtor objected to the validity of the bankruptcy petition contending that the verifying affidavit in support, being attested by a justice of the peace in Sabah, was defective.

High Court

In the High Court, the learned trial judge overruled the objection holding that a justice of the peace in Sabah being clothed with the power to administer oaths under s. 128(a) of the Bankruptcy Act 1967 (hereinafter referred to as the "Bankruptcy Act") was competent to attest the affidavit verifying the bankruptcy petition. In so deciding, the learned trial judge relied on s. 4(1) of the Justices of the Peace Ordinance 1961, reg. 2 of the Subordinate Courts (Powers of Justices of the Peace) (Sabah) Regulations, 1990, s. 79 of the Subordinate Courts Act 1948 and the Interpretation Acts 1948 and 1967.

Against the decision of the learned trial judge, the judgment-debtor appealed to the Court of Appeal.

Court Of Appeal

The Court of Appeal agreed with the decision of the learned trial judge and dismissed the appeal with costs. On the point in issue, the Court of Appeal said:

The effect of Regulation 2 of the Subordinate Courts (Powers of Justices of the Peace) (Sabah) Regulations 1990 is that in Sabah every Justice of the Peace 'shall be authorised and is required to administer oaths under any written law ... as though he were a Second Class Magistrate' 'Any written law' must in our view include the Bankruptcy Act.

Federal Court

Before us, counsel for the judgment debtor argued that a justice of the peace in Sabah could not be equated to a magistrate under s. 128(a) of the Bankruptcy Act and did not come under the deeming provisions of reg. 2 of the Subordinate Courts (Powers of Justices of the Peace) (Sabah) Regulation 1990.

Section 128(a) of the Bankruptcy Act enacts:

Subject to general rules made by the Minister, any affidavit may be used in a bankruptcy court if it is sworn:

(a) in Malaysia or in the Republic of Singapore before any person authorized to administer oaths in the High Court or any Magistrate;

And, reg. 2 of the Subordinate Courts (Powers of Justices of the Peace) (Sabah) Regulations 1990 provides:

2. Every Justice of the Peace shall be authorised and is required -

(a) to administer oaths and affirmations;

(b) to make and receive statutory declarations; and

(c) to attest signatures,

Under any written la