P L D 1952 Privy Council 69 (PLP)

VISCOUNT SIMON.‑This is an Appeal from the decision of the Court of Appeal of the Colony of Singapore (Murray Aynsley. C. J. of Singapore, Sir H. C. Willan, C. J. of the Federation of Malaya, and Evanc J.) which arises in the follow ing circumstances. The appellant became Sultan of Johore, by succession to his father, in 1895. By an indenture dated December 1st, 1903, he purported to convey to his wife, in consideration of the natural love and affection which he bore to her, two plots of land belonging to him in Singapore with the dwelling houses erected thereon. On March 8th, 1926, the lady died intestate, leaving surviving her the appellant and their only son, Tunku Abubakar (hereinafter called Abubakar), who is the first respondent. Abubakar was granted letters of administration of his mother's estate : on her intestacy he was entitled to three‑quarters of the estate and the appellant to one‑quarter. An indenture dated December 22nd, 1926, between the appellant and Abubakar purported to convey these two pro perties to the appellant to hold upon trust for the eldest daughter of Abubakar during her life, and after her death for any of her issue then living. On March 1st, 1939, this eldest daughter died intestate, an infant and unmarried, and Abubakar was on January 23rd, 1940, granted letters of administration of her estate. By Muhammadan Law, upon the girl's death intestate, her father, Abubakar, would become entitled to five -sixths of the properties and her mother, Ungku Fatmah, would be entitled to one‑sixth. By an indenture dated June 28th, 1944, between Abubakar, Ungku Fatimah and three individuals named as trustees, Abubakar and his wife assigned and transferred to the trustees certain properties and interests in properties in Singapore and in Johore, including the two pro perties above mentioned. In the course of the late war, the whole of Malaya (includ ing Johore) and the Colony of Singapore were invaded and for a time occupied by Japanese military forces. Singapore itself was thus occupied on February 16th, 1942, and this occupation continued until the Japanese were driven out in September, 1945. On effecting their occupation the Japanese authorities expelled the British administration from Singapore : the Courts of that Colony were closed and the British judges interned. There had‑previously been a Supreme Court of the Straits Settlements, embracing Singapore, Penang and Malacca, which sat in Singapore : this was distinct from the Supreme Court of the Federated Malaya States. The Supreme Court of the Straits Settlements had jurisdiction to decide the title to immovable property in Singapore. In May, 1942, the Japanese military administration set up, in place of the former Supreme Court of the Straits Settlements, a High Court called the " Syoman Kotohoin " staffed with judges appointed by the Japanese administration which exercised a jurisdiction generally corres ponding with that belonging to the former Supreme Court of the Stratis Settlements. The practice and procedure of the Soyman Kotohoin was, in all respects material to this Appeal, identical with the practice and procedure of the former Supreme Court of the Straits Settlements. On May 3rd, 1945, the appellant took out an Originating Summons in the Court of the judge at Syoman (Singapore), naming as Defendant the Custodian of Enemy, Property Syoman. By this Summons he applied to the Japanese Court to determine the construction of the Deeds of December 1st, 1903, and of December 22nd, 1926, above referred to, and to decide whether, having regard to the fact that the parties to these Deeds were Muhammadans, the Deeds were properly and lawfully executed under the law applicable to the parties and were valid. The Summons was heard by one Pillai, a Japanese appointed judge of the Syoman Kotohoin, At the first hear ing the Defendant was represented, but on the adjournment for argument his representative was absent Judgment in the appellant's favour was given by Pillai on June 18th, 1945, and it was declared that Muhammadan Law was applicable to the gifts contained in the two Deeds and that the two gifts were void and of no effect, so that the pro perties with which they dealt reverted to the appellant as sole beneficial owner thereof. When the Japanese were driven out in September, 1945 there followed a period during which authority was exercised by a British military administration, but on April 1st, 1946, a new and separate Colony of Singapore was created by the Singapore Colony Order in Council, 1946 (S. R & O 1946, No. 464) made under the Straits Settlements (Repeal) Act, 1946. By section 14 of this Order in Council the Supreme Court of the Colony of Singapore, was established, and it is this Court which has been functioning in the Colony of Singapore since that date. Judicial proceedings which had been commenced before the Japanese occupation in the former Supreme Court of the Straits Settlements were linked with the newly created Supreme Court of the Colony of Singapore by section 44 of the Order in Council, which provided : " All proceedings (other than proceedings in the Prize Court) commenced before the 15th day of February, 1942, in any Court of Justice in or having jurisdiction in, the territory comprised in Colony may be carried on in like manner as nearly as may be as if this Order and the Act of 1946 had not been made or passed, but in the corresponding Court of the Colony, and any such proceeding may be amended in such manner as may appear necessary or proper in order to bring it into conformity with the provisions of the Act of 1946 and of this Order." It was considered necessary, as a consequence of the end ing of Japanese occupation and the establishment of the Supreme Court of the Colony of Singapore, to provide an opportunity (1) for carrying on before the appropriate Court of the Colony proceedings which had been commenced but not concluded before a Japanese Court during the occupation, and (2) for reviewing decrees made by a Japanese Court in the appropriate Court of the Colony with a view to enabling an Appeal to be brought against such decree or with a view to setting aside such decrees at sought not to stand. These objects were secured by the Japanese Judgments and Civil Proceedings Ordinance, 1946 (Singapore Ordinance No. 37 of 1946), the long title of which reads : " An Ordinance to make provision with regard to judg ments, orders and decrees of Japanese Courts and for the carrying on of proceedings instituted in such Courts during the period of Japanese occupation." Section 4 of this Ordinance provides :- (1) A party to any proceedings commenced before a Japanese Court which were pending at the cessation of the Japanese occupation, may apply to the appropriate Court, within three months from the commencement of this Ordinance or such extended time as the appropriate court may allow, for leave to carry on such proceedings as proceeding of the appropriate Court. (2) Upon the hearing of the application the appropriate Court may order such proceedings to be carried on as though they had been instituted before the appropriate Court and may order such amendments and give such consequential or other directions in the matter as may seem just." And section 3 of the Ordinance provides :‑ "(1) Any party to the proceedings in which a Japanese decree was made or given or any person aggrieved by such decree may, within three months from the commencement of this Ordinance, or within such extended time as the appro priate Court may allow, apply in the prescribed manner to the appropriate Court for an order‑ (a) that such decree be set aside either wholly or in part; or (b) that the applicant be at liberty to appeal against such decree. (2) Upon the hearing of an application under the provi sions of subsection (1) of this section the appropriate Court may, subject to the provisions of this section make such order or orders thereon as, in the circumstances of the case, may seem just. (3) No Japanese decree shall be set aside on the ground that the person or persons constituting the Court whose decree is in question was or were not appointed in accordance with the provisions of, or did not possess the qualifications specified in, the existing laws. (4) Without prejudice to the generallity of the provisions of subsection (2) of this section, the Japanese decree may be set aside on any of the grounds following‑ (a) that it was obtained as a result of such force or threat of force, injury or detriment to any party to the proceedings or other personas in the opinion of the appropriate Court was sufficient to render the action of the party in relation to the proceedings involuntary ; (b) that any necessary party did not appear personally but was represented by any person appointed by any Japanese authority; (c) that it was based on principles unknown to the exist ing laws ; or (d) on any other ground which the appropriate Court consider to be sufficient." Under this Ordinance Abubakar, the first respondent, together with the two other respondent as trustees, took out an Originating Summons in the High Court of the Colony of Singapore, claiming that they were persons aggrieved by the decree of June 18th, 1945, of the Japanese Court in the appel lant's favour, and applying to set aside this decree, or alter natively asking for liberty to appeal against the Japanese decree on grounds therein stated. Upon learning that the Originating Summons had been issued, the appellant's solici tors entered a conditional appearance on his behalf, which was followed up by a Summons before the judge in Chambers, in which the appellant applied that the Originating Summons might be set aside and all further proceedings under it stayed on the ground that the Court had no jurisdiction over the appellant, who claimed to be "a sovereign ruler." It is the decision on this summons which now comes before Their Lordships on appeal. The appellant's application was heard in the. High Court by Gordon Smith, J. in March, 1949, and by Order dated April 7th, 1949, the Summons was dismissed with costs. The learned Judge held that at the material time the appellant was a sovereign ruler, but that he had waived his immunity by issuing the Originating Summons in the Syonan Kotohoin during the Japanese occupation. He held that the proceedings now sought to be .stayed were not new proceedings, but were a continuation of the earlier proceedings in which the appel lant had for the time being succeeded. The appellant appealed from Gordon Smith J's. decision to the Court to Appeal of the Colony of Singapore. His Appeal was dismissed, but the reasons given by the three learned Judges materially differ and must be separately summarised. Murray‑Aynsley C. J., held that the appellant's claim to be a sovereign ruler could not be established otherwise than by a statement made on behalf of His Majesty George VI to that effect and that the communications then before the Court from His Majeste's Secretary of State for the Colonies did not amount to such a statement. He further held, that, if the sovereign status of the appellant had been duly established, there would have been no waiver by the appellant of his result ing immunity from the proceedings now taken against him by the respondents. Sir H. C. William C. J., on the other hand, held that, in a case where certificates from the Colonial Office were not conclusive one way or the other, the Court was not precluded from looking to other evidence in order to determine whether the appellant was an independent sovereign. He considered that the right view to take on all the material before him was that the appellant was an independent sovereign. On the question of waiver, however, he held against the appellant. Waiver of a sovereign's immunity, in a case where the sovereign has himself instituted proceedings, continued, in his view, to operate if the application now made by the respon dents to reverse the decree which the appellant had obtained was a continuance of the proceedings instituted by the appel lant in the Japanese Court. He held that the provisions of the Ordinance of 1946 above set out had the effect of making the present application a continuation of such proceedings, and therefore the claim by the appellant of immunity from the jurisdiction of the High Court of the Colony of Singapore failed. The third Judge, Mr. Justice Evans, discussed the question whether other material can be considered on the question of sovereignty when there is no conclusive certificate from a Secretary of State before the Court. He held that the Syonan Kotohoin was not the same Court as that in which the respon dents brought the present proceedings, and that the present proceedings were not the same as the proceedings started by the appellant. But his judgment was not based on his conclu sion on these issues. The ground on which this learned judge gave his decision against the appellant was that the appellant, notwithstanding his claim to be an independent sovereign and notwithstanding the view that he had not waived his immunity, was none the less subject to the jurisdiction of the Court inasmuch as the matter to be determined was "one concerning land, which is undoubtedly within the jurisdiction and which is the subject of a private and personal claim of the Sultan, and not a claim of public property of the State." Mr. Mac Kenna for the respondent cited various dicta, both English and foreign, in support of this view and referred in this con nection to the statement of Sir Robert Philimore at p. 97 of the Charkieh L R 4 A. & E. 59‑a statement which was not in fact necessary for the decision‑where that learned civilian stated that a sovereign's exemption from suit "is admitted not to apply to immovable property" and that this is one of "the universally acknowledged exceptions to the general rule of the sovereign's immunity," As will appear hereafter, Their Lord ships do not find it necessary to pronounce upon this proposi tion in the present Appeal. There are thus three main questions which have been raised in this litigation, the answers to which may be material in deciding it. First, is the appellant in the litigation to be regarded as a foreign sovereign ? Secondly, if so, has he waived his immunity so as to disentitle him to a stay of proceedings on the respondents' Originating Summons ? And thirdly, if both the above questions are answered in the appellant's favour, does this sovereign immunity extend to exclude the jurisdic tion of the Court in a case where proceedings are connected with his claim to be entitled to immovable property situate within the jurisdiction of the Court ? The first of these questions, which gave so much trouble to the Court below, appears to Their Lordships to be now definitely answered in the appellant's favour. Subsequent to the Judgment and Order of the Court of Appeal, correspon dence passed between twelve Rulers of the Malay States and the then Colonial Secretary in which the former complained that the replies hitherto sent from the Colonial Office in answer to the request of the Courts in Singapore for informa tion as to the status of the appellant were ambiguous, and that the Secretary of State, instead of issuing the required certi ficate, appeared to wish to leave the Courts to decide the matter in the light of the recent establishment of the Malay Federation. However, on February 1st, 1951, the Secretary of State wrote a further letter to the Rulers of the Malay States in which it is categorically asserted that "His Majesty's Government regard your Highnesses as independent sovereigns in so far as your relations with His Majesty are concerned." At the hearing before the Board this document was ten dered to Their Lordships, without objection from the respon dents, as containing the necessary and conclusive information from the proper quarter. Their Lordships to accept it and take judicial notice of the fact so certified, They can therefore proceed on the admitted basis that the applicant recognised by His Majesty's Government at the relevant time as an independent sovereign entitled to the immunities in respect of litigation which attach to that status. This renders it unnecessary to decide in this Appeal a point on which some difference of opinion appears to be expressed in the speeches of the majority in Duff Development Co. Ltd. v. Kelantan Government (1924) A C 797, viz., whether the status enjoyed by a foreign sovereign in a British Court can be established, in case of doubt, only by certificate issued by the appropriate Secretary of State on behalf of the Crown, or where the a Court might be entitled, if the Crown failed to answer the inquiry in conclusive terms, to accept and act upon "secondary information" of another' kind, (Contrast the speeches of Viscount Cave and Viscount Finlay with that of Lord Summer). The second question concerns waiver. The appellant him self started the proceedings before the Japanese Court, thereby invoking its jurisdiction on his behalf. As plaintiff, he obtained the decree declaring that he was the beneficial owner of the properties in question. If, therefore the steps taken by the respondents with a view to revrsing this decision are in the nature of an appeal from it to a Court having jurisdiction to reverse the decision which the appellant has obtained, he could not object to being made respondent in these appeal proceedings, for his original submission to the original Court binds him to accept the jurisdiction on Appeal. If, on the other hand, the respondents' application to the High Court of the Colony of Singapore to reverse the decree is a "new" proceeding, and not a continuation of the previous one, the appellant's objection that he is a foreign sovereign would prevail, so far as the new proceeding impinged upon his sovereign immunity. In Duff Development Company Ltd. v. Kelantan Government (above cited), after the Kelantan Govern ment, which was recognised by the British Crown as a sovereign state, had agreed to arbitration and had itself applied to the British Court to set aside the award, it was held that, when proceedings were taken against it to enforce the award this was a different proceeding in which it was entitled to set up its sovereign immunity, notwithstanding that it had waived this immunity in the previous proceedings, Viscount Cave, at p. 810, put the contrast thus :‑ "The application for leave to enforce the award is a new proceeding, and though connected with the earlier applica tion is distinct from it." Here, as William C. J. points out, the application of the respondents is concerned with the very matter raised by the appellant in the Japanese Court, viz., the title to these properties Their Lordships are of opinion that section the Ordinance of 1946 upon its true construction autho rises an application in the nature of an appeal from the Japanese decree. The Ordinance does not treat Japanese decrees as of no effect. Neither does it treat them as conclusive. It provides for their review, with the result that they might either be confirmed or modified or reversed. The procedure authorised is essentially .a carrying on of the proceeding already instituted and not a new and distinct proceeding. The language of section 3 actually speaks of an Appeal, and the purpose of the Order is to provide a means of revising and, if necessary, correcting decrees made by the Japanese Court during the occupation. No doubt it is anomalous for a tribunal set up by one authority to, operate as a Court of Appeal from the decisions of a tribunal set up by a different and previous authority, but this is what the Ordinance of 1946 does, and subsection (4) of section 3 indicates good and necessary reasons for doing it. Other wise, an erroneous decision given by the Japanese Court affecting private rights would stand without the possibility of correction. In the present instance, the Japanese Court has decided, whether rightly or wrongly, that Deeds previously executed by the appellant which purported to convey his, private property in Singapore to others were invalid and that the properties still belong to him. In deciding this issue, the proper law to apply to the question of title is the same as it was before the Japanese occupation, inasmuch as military occupation and even annexation, does not in itself change the law in the area occupied ; the only change is in the Court and in the judges who are to apply the law. The question therefore, which is raised by the Originating Summons issued by the respondents and which is to be determined by the High Court of the Colony of Singapore is whether the decision of the Japanese Court was right or wrong, and to determine this the appellant is made respondent in what is in substance an appeal in proceedings which, by force of the Ordinance of 1946, are a continuance of the proceedings which the appellant himself instituted, and in any case are put in the same position as an appeal by section

3. The conclusion that the appellant must be treated as having submitted to the jurisdiction in the respondents' current proceedings makes it irrelevant to consider the third question which would otherwise have called for decision. That is the question whether the principal that affords to a foreign independent sovereign immunity from process in our Courts is subject to any exception in the case of proceedings that concern the title to immovable property situate within the area of the Court's territorial jurisdiction. The point was however very fully argued during the course of the hearing and moreover in view of its public importance their Lordships invited and received the assistance of the Attorney General to aid their consideration. While, therefore, they think that it would be wrong to express an opinion on an issue that does not, properly speaking. now arise, they are unwilling to conclude their advice to Her Majesty without making reference to one aspect of this controversy which was much canvassed before them. Their Lordships do not consider that there has been finally established in England (from whose rules the rule to be applied in the Court at Singapore would not differ) any absolute rule that a foreign independent sovereign cannot be impleaded in our Courts in any circumstances. It seems desirable to say this much having regard to inferences that might be drawn from some parts of the Court of Appeal's judgment in The Parlement Belge 5 P D 197 and from the speech of Lord Atkin in The Christina 1938 A C

485. The word "implead" is capable of more than one meaning when used in relation to judicial proceedings which themselves comprehend a great variety of forms, acid further distinctions have been suggested between what is direct and what is indirect impleading : but for the present purpose the definition of "impleading" can be that which is laid down. by Sir Balliol Brett in the former case where he compares the position of a ship‑owner, whose vessel is seized in proceedings alleging liability arising from a collision, with the position of a subsequent innocent purchaser of the vessel. The Lord Justice says at p. 219 : "Either is affected in his interests by the judgment of a Court which is bound to give him the means of knowing that it is about to proceed to affect those interests and that it is bound to hear him if he objects. That is, in our opinion, an impleading. Impleading, in this sense, does not depend merely on an answer to the more technical question whether a person is actually a party or ought to be regarded as a necessary party to the proceedings. There have certainly been cases in the Court of Chancery in which a foreign sovereign has been impleaded to the extent that the rights to a trust fund under the jurisdiction of the Court have been the subject of adjudication despite the fact that the sovereign has a possible interest in the fund. The best known case is Lariviere v. Morgan L R 7 Ch. App. 550 ; and, although the decision in that case was reversed on its facts when it reached the House of Lords Lord Cairns seems to have felt no doubt as to the propriety of the jurisdiction exercised ; see his speech reported in L R 7 H L C 423 at.

430. Indeed, in Duke of Brunswick v. King of Hanover 6 Beav. 1, Lord Langdale evidently contemplated that in proceedings of such a kind the name of the foreign sovereign would be included among those of the defendants (see p. 39). An action in rem against a ship impleads persons who are interested in the ship. That is settled law. There is even high authority for the view that such persons are or may be directly. impleaded by such proceedings (The Cristina, supra, at pp. 491, 505). If however it had been definitely determined that in no case could a foreign sovereign be impleaded without his consent, there could have been no justification for reserving the case of a Sovereigns ship engaged in ordinary commerce‑‑a reservation that was in fact made by the majority of the House of Lords in The Christina. For a sovereign is impleaded by an action in rem against his ship whether it is engaged in ordinary commerce or is employed for purposes that are more usually distinguis hed as public. The extent of the impleading is the' same in the one case as in the other. Indeed, a great deal of the reasoning of the judgment in The Parlement Belge would be inexplicable if there could be applied a universal rule without possible exception to the effect that once the circumstance of a foreign sovereign being impleaded against his will can be established, a proceeding necessarily becomes defective by virtue of that circumstance alone. To say this is merely to disavow an alleged absolute and universal rule. It does nothing to throw doubt upon the existence of general principle. Nor is it necessary for Their Lordships to express any opinion in this case upon the question whether and, if so, to what extent proceedings which concert the title to immovable property within the jurisdiction from an exception from this general rule. Their Lordships will humbly advise Her Majesty that the appeal should be dismissed. The appellant must pay the costs of the Appeal. A. H. Appeal dismissed.