[JUDICIAL COMMITTEE]

AND

ON APPEAL FROM THE COURT OF APPEAL OF THE COLONY OF SINGAPORE.

International Law - Foreign sovereign - Immunity from process - No absolute and universal rule - Waiver - Submission to jurisdiction - Japanese Judgments and Civil Proceedings Ordinance, 1946 (Singapore Ordinance No. 37 of 1946), s. 3.

By section 3 of the Japanese Judgments and Civil Proceedings Ordinance, 1946, of Singapore: "(1) Any party to the proceedings in which a Japanese decree was made or given or any person aggrieved by such decree may ... 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."

The appellant, the Sultan of Johore, in proceedings instituted by him before a Japanese court during the occupation of Singapore by the Japanese, obtained from that court in June, 1945, a judgment to the effect that he was the sole beneficial owner of certain land in Singapore. After the Japanese occupation had ended the respondent, the appellant's son, together with others, took out an originating summons under the Japanese Judgments and Civil Proceedings Ordinance, 1946, claiming that they were persons aggrieved by the Japanese decree of June, 1945, and applying to set it aside, or alternatively asking for liberty to appeal against it. The appellant thereupon sought to have the originating

summons set aside and all further proceedings under it stayed on the ground that he was an independent foreign sovereign over whom the court had no jurisdiction:-

Held, first, that in the light of a letter of February 1, 1951, from the Secretary of State to the Rulers of the Malay States, of whom the appellant was one, in which it was categorically asserted that "His Majesty's Government regard Your Highnesses as independent sovereigns in so far as your relations with His Majesty are concerned," which letter was tendered to the Board, without objection from the respondents, as containing the necessary and conclusive information from the proper quarter, and accepted by the Board who took judicial notice of the fact so certified, the appellant was at the relevant time an independent sovereign entitled to the immunities in respect of litigation which attached to that status:-

Held, secondly, however, that section 3 of the Ordinance of 1946 authorized an application in the nature of an appeal from the Japanese decree; that the procedure authorized was essentially a continuation of the proceedings already instituted and not a new and distinct proceeding; and that the appellant had been made respondent to the originating summons which was in substance an appeal in proceedings which, by force of the Ordinance of 1946, were a continuance of the very proceedings which he had himself instituted, and accordingly he must be treated as having submitted to the jurisdiction in the respondents' current proceedings and to have therefore waived his immunity.

Duff Development Co. Ld. v. Kelantan Government [1924] A.C. 797 considered.

There has not been finally established in England (or in Singapore, where the rules applicable are the same) any absolute and universal rule that a foreign independent sovereign cannot be impleaded in the courts in any circumstances.

The Parlement Belge (1880) 5 P.D. 197, The Cristina [1938] A.C. 485 and Larivi�re v. Morgan (1872) L.R. 7 Ch. 550; 7 H.L. 423 considered.

Order of the Court of Appeal of Singapore affirmed.

APPEAL (No. 45 of 1950) from an order of the Court of Appeal of Singapore (November 1, 1949) affirming an order of the High Court of Singapore (April 7, 1949).

By an originating summons taken out by the respondents, the son of the appellant, the Sultan of Johore, and others under the Japanese Judgments and Civil Proceedings Ordinance, 1946, on April 14, 1947, the respondents applied to the High Court of Singapore for leave to appeal against, or to set aside, a decree of a Japanese court, dated June 18, 1945, which had been made in proceedings instituted by the appellant, the Sultan, in May, 1945, when the Japanese were in occupation of Singapore. The effect of the Japanese decree was that the Sultan had been held to be

the sole beneficial owner of certain immovable property in Singapore.

Section 3 of the Japanese Judgments and Civil Proceedings Ordinance, 1946, provided that: "Any party to the proceedings in which a Japanese decree was made or given or any person aggrieved by such decree may ... 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."

The Sultan thereupon issued a summons asking that the respondents' originating summons might be set aside and all further proceedings under it stayed on the ground that he was an independent foreign sovereign over whom the court had no jurisdiction.

The High Court (Gordon Smith J.) dismissed the Sultan's summons. He held that at the material time the Sultan was a sovereign ruler, but that he had waived his immunity by issuing the originating summons in the Japanese court during the 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 appellant had for the time being succeeded.

An appeal by the Sultan to the Court of Appeal of Singapore (Murray-Aynsley C.J. of Singapore; Willan C.J. of the Federation of Malaya, and Evans J.) was dismissed.

The Sultan now appealed.

The facts and the material statutory provisions are stated more fully in the judgment.

1952. January 14, 15, 16, 17, 21, 22, 23 and 24. C. P. Harvey Q.C., Megaw and E. Lauterpacht for the appellant. There are three main points. First, aye or no, is the Sultan of Johore a foreign sovereign and recognized as such by His Majesty's Government? Since this appeal was lodged a communication has been made by His Majesty's Secretary of State for the Colonies which, it is submitted, puts beyond doubt the sovereignty of the Sultan of Johore. Secondly, assuming that the Sultan is an independent foreign sovereign, has he waived his immunity? Thirdly, assuming that he is a foreign sovereign entitled to immunity as such, and assuming further that he has not waived the immunity to which he is entitled, does the doctrine of immunity from process of foreign sovereigns recognized as such apply at all in a case where the proceedings are connected

with real property situate within the jurisdiction of the court? On the first question, a letter of February 1, 1951, from the Secretary of State to the Rulers of the Malay States said that: "His Majesty's Government regard Your Highnesses as independent sovereigns in so far as your relations with His Majesty are concerned." It is submitted that that certificate, though not issued to this Board in response to a request from the Board, and, indeed, not issued in response to a request from any court, is nevertheless a sufficient piece of information; it is sufficiently formal and public and sufficiently authentic for this Board to found judicial notice on it of the status of the Sultan of Johore. There is authority to show that it is not necessary that the information should be given directly to the court so long as it emanates from His Majesty's Secretary of State.

Sir Lionel Heald A.-G. and Gahan as amici curiae. The letter of February 1, 1951, does in fact contain the best information that the Secretary of State can give, and information which will enable the Board to come to a conclusion on the matter. The question is whether the Sultan is or is not an independent sovereign and so capable of claiming immunity under the application of international law to the domestic forum. It was said in Duff Development Co. Ld. v. Kelantan Government¹ that: "It has for some time been the practice of our courts, when such a question is raised, to take judicial notice of the sovereignty of a State, and for that purpose (in any case of necessity) to seek information from a Secretary of State; and when information is so obtained the court does not permit it to be questioned by the parties." It is not necessary for the communication to be addressed to the court itself; there are cases in which letters have been written to the solicitors of the parties: see the Duff Development Co. case² and also Aksionairnoye Obschestvo A. M. Luther v. James Sagor & Co.³ I cannot answer this question otherwise than in the sense in which it is stated in the Duff Development Co. case.⁴ There appears to be no distinction between the position arising on this letter of February 1, 1951, and that which arose in the Duff Development Co. case.⁴

It is agreed that in 1945 the Sultan was an independent sovereign in every sense of the word, subject to the fact that he was under the domination of the Japanese. Next came the suggested Malay Union, which did not go through. Then the

1 [1924] A.C. 797, 805.

2 Ibid. 827.

3 [1921] 1 K.B. 456, 460.

4 [1924] A.C. 797.

Federation of Malaya was formed. That state of affairs gave rise to a complicated legal situation. The view was taken that had the Union gone through it might very well have destroyed the Sultan's sovereignty. According to the view which has been expressed the Federation did not have the effect of abrogating his sovereignty. So, whatever the difficulties at any earlier stage, it is now clear that the Sultan of Johore is an independent sovereign.

B. MacKenna Q.C. (for the respondents): I accept the letter of February 1, 1951, as recognition of the sovereignty of the Sultan at that time. The process issued by the respondents, however, was served in 1947. The letter of February 1 should be read as recognition of the position created as from February, 1948. I do not wish to abandon the point that the relevant date may be that when the process was served.

C. P. Harvey Q.C. In substance this litigation arose out of a domestic dispute between the Sultan and his son, as to which of them is entitled to receive the rents and profits of certain plots of land in Singapore. In form it is something quite different - in form it is an originating summons brought by the respondents on April 14, 1947, under the Japanese Judgments and Civil Proceedings Ordinance, No. 37 of 1946, for leave to appeal against, or to set aside, a decree of a Japanese court of June 18, 1945, which had been made in proceedings instituted by the Sultan in 1945, and by which he was held to be the sole beneficial owner of the property in question. The Sultan thereupon applied to have the respondents' originating summons set aside and all proceedings thereunder stayed on the ground that he was an independent foreign sovereign. It is submitted that at all times when the courts below gave their respective judgments the Sultan was an independent sovereign, whether or not he was so at the time when he entered his conditional appearance to the originating summons on October 8, 1947.

Secondly, he has not waived his immunity. Willan C.J., in the Court of Appeal, said that by their originating summons the respondents "were disputing about the very matter - nothing more and nothing less - about which the Sultan himself instituted proceedings in the Japanese court. In my view that is the crux of this case as regards the question of waiver. ... I hold that the application ... under section 3 of the Japanese Judgments and Civil Proceedings Ordinance, 1946, is not a new proceeding, but is a continuation of the very same proceedings which the Sultan instituted in the Japanese court." That

view, it is submitted, was completely wrong. Reliance is strongly placed on the Duff Development case,⁴ and the present is an a fortiori case. It is difficult to see how the existence of the Sultan's previous application to the foreign court - the Japanese court - can be regarded as a submission to the Singapore court having regard to the Duff Development case.⁴ The Sultan has not consented to be impleaded nor has he submitted to the jurisdiction of His Majesty's courts in respect of the proceedings out of which this appeal arises, nor has he in any manner or at any time waived his right to claim sovereign immunity in respect of these proceedings.

[At the suggestion of the Board the third question - whether foreign sovereign immunity extends to proceedings relating to real property situate within the jurisdiction - was left to be dealt with first by counsel for the respondents.]

B. MacKenna Q.C. and Ian C. Baillieu for the respondents. The submissions for the respondents are made first on these assumptions: that the High Court of the Colony of Singapore was a different court from that which heard and determined the Sultan's claim in 1945; that the Japanese Custodian did not represent the present respondents in 1945; and that the respondent trustees could not be considered as appellants under section 3 of the Japanese Judgments and Civil Proceedings Ordinance, 1946, but only as persons given a right to have a judgment set aside.

The first submission, by way of a general proposition, is that by commencing proceedings in Singapore in 1945 the Sultan consented to his claim in those proceedings being dealt with in all respects as if he were a private litigant. There is no authority against that proposition, and there are some indications that it is supported by authority. And if a judgment obtained in such proceedings by any private litigant would be defeasible either by appeal or by some other revisionary procedure, then judgment obtained by a ruler was equally defeasible. If the law is changed after a foreign ruler begins to sue, and if the altered law would be applicable to a suit brought by a private litigant in the same circumstances, then the foreign ruler cannot claim that the altered law is not applicable to his suit. When the Sultan began proceedings his consent is not to be limited to the decision of the court of first instance, but extends to the revisionary jurisdiction

4 [1924] A.C. 797.

of a court established after the Japanese occupation had ended - it is a consent to be dealt with by any court which then had jurisdiction or which might thereafter acquire jurisdiction under the laws of that territory. It is not unreasonable to take the Sultan as consenting in advance to the correction of any judgment which he might obtain in the proceedings which he began; there is something shocking in the contrary view, and unless the Board are driven to it by authority they should not so hold.

Where anybody, whether sovereign, crown prince, private individual or corporation, commences a suit in Singapore he is consenting to the jurisdiction of the Singapore courts in relation to that suit. That is a general rule. When he acts as a plaintiff he submits freely to the jurisdiction. It cannot make any difference that the claimant has under section 3 of the Ordinance of 1946 to go to the court and get leave to appeal. That section gives revisionary powers in respect of Japanese judgments to the re-established courts: it is the duty of the Court of Appeal to decide whether the judgment of the court of first instance (the Japanese court) is a good one and ought to be allowed to stand. The Sultan must be taken as having consented to any change of the laws from time to time that were or could be put into force in relation to his suit. Alternatively, it is submitted that here is an ordinance passed in Singapore governing all cases of Japanese judgments and decrees, no exception being made in respect of persons in the position of the sovereign of Johore, and its terms must therefore be applied to his case just as to any other.

The passages in the cases which, it is submitted, support the proposition that a sovereign who commences proceedings is consenting to be treated as an ordinary litigant are: King of Spain v. Hullet and Widder⁵; South African Republic v. La Compagnie Franco-Belge du Chemin de Fer du Nord,⁶ where it was said: "I treat this as an action by a foreign Government which submits to the jurisdiction of the court as regards all matters properly appertaining to the action so brought"; United States v. National City Bank of New York,⁷ which is also in the Annual Digest and Reports of Public International Law Cases, 1935-37, pp. 218, 220; Duff Development Co. v. Kelantan Government⁸ - it was said for the appellant here that the position in the Kelantan case and this case was really the same, because leave was needed

5 (1833) 1 Cl. & F. 333, 352-3.

6 [1897] 2 Ch. 487, 492.

7 (1936) 83 Fed.R. (2nd series) 236.

8 [1924] A.C. 797, 817.

in each case and therefore it followed that there were new proceedings in which the sovereign could not be said to have consented to the jurisdiction. That, it is submitted, does not follow at all. "Occupation [of the territory of a State] does not displace or transfer sovereignty": McNair, Legal Effects of War, 2nd ed., p. 320. For the effect of a submission to the jurisdiction in Singapore made at a time when the English King was still the sovereign of Singapore, though temporarily ousted, see Oppenheim's International Law (Lauterpacht), 6th ed., vol. 2, pp. 348-9, para. 172.

With regard to permitting "aggrieved" persons to appeal, see The Annual Practice, 1951 ed., p. 1244, order 58, rule 1: "What persons may appeal," and order 27, rule 15 (notes): "Application by person not a party." Those are cited to meet the suggestion for the appellant that there was a new proceeding.

To turn to the second branch of the argument, which relates to the question of immunity from process in respect of land within the jurisdiction, it will be seen that there is almost complete unanimity on this point by textbook writers in this country and in other countries, and to a very large extent in the judgments of authorities. They do recognize that suits respecting title to land stand in a peculiar position, and form an exception to the general rule about sovereign immunity. Much of the authority is that of foreign writers and foreign courts, and it is submitted that that is a strong reason why our courts also should refuse to recognize that the general rule of immunity applies also in the case of real property. Referring first to the textbooks, it is stated in Westlake's Private International Law, 7th ed., p. 267, para. 189, that: "But the exception of ex-territoriality does not extend to the forum rei sitae, for no country can be expected to renounce the determination of the property in its soil." That and similar passages in the 5th and 6th editions of Westlake all recognize that disputes about the title to land stand on a different footing from other disputes and are outside the immunity. Oppenheim's International Law, 6th ed., vol. 1, p. 239, para. 115a (note 4), states: "But there is probably no immunity when the State is sued as owner of real property"; and Hall's International Law, 7th ed., p. 181, para. 49, says that "when a sovereign holds property in a foreign country, which clearly belongs to him as a private individual, the courts of the State may take cognizance of all questions relating to the property, and the property itself is affected by the result of the proceedings taken in them." And the footnote says that: "It

is considered by some writers that real property held by a sovereign in a foreign country as a private individual is alone subject to the local jurisdiction, and that personal property is exempt." And at p. 184 of Hall: "The immunities from civil jurisdiction possessed by a diplomatic agent, though up to a certain point they are open to no question, are not altogether ascertained with thorough clearness." Hall says that he thinks that it would be better if the rule applied to personal as well as to real property: his clear view is that real property stands outside the immunity, and he is in line with Westlake. See also Foote's Private International Law, 5th ed. (1925), pp. 198-9.

With regard to the authorities, it was said in The Charkieh⁹ that "the exemption from suit is admitted not to apply to immovable property." And in Magdalena Steam Navigation Co. v. Martin,¹⁰ quoting from paragraph 180 of Phillimore's Commentaries upon International Law, vol. 2, Pt. VI, chap. 8, it was said that the exemption "has not yet been, and probably never will be, extended to real property, if an ambassador should happen to possess any in the country of his mission." And much to the same effect is said in Wheaton's Elements of International Law, Pt. III, chap. 1, para. 18: "The personal effects ... are entirely exempt from the local jurisdiction; so also of his dwelling-house; but any other real property, or immovables, of which he may be possessed within the foreign territory, is subject to its laws and jurisdiction." One finds throughout the judgment in The Parlement Belge¹¹ that Brett L.J. talks about "movable property"; he makes that distinction clear throughout. The Cristina¹² is used chiefly to show that to found the immunity it must be established that the immunity was one universally recognized by foreign countries: per Lord Maugham¹³; but in that case Lord Thankerton said that: "I have some doubt whether the proposition that the foreign sovereign State cannot be impleaded is an absolute one; the real criterion being the nature of the remedy sought."¹⁴ [Reference was also made to Republic of Mexico v. Hoffman,¹⁵ and to The American Journal of International Law, 1928, vol. 22, p. 566, which contains an article by Prof. Fairman on "Some Disputed Applications of the Principle of State Immunity" and which deals with the question "where the State is sued as owner of real property"; to

9 (1873) L.R. 4 Ad. & Ecc. 59, 97.

10 (1859) 2 El. & El. 94, 99.

11 (1880) 5 P.D. 197, 204, 214.

12 [1938] A.C. 485.

13 Ibid. 518.

14 Ibid. 494.

15 (1945) 324 U.S. 30.

an article by Prof. Walton on "State Immunity in the Laws of England, France, Italy and Belgium," in the Journal of Comparative Legislation, 3rd series, vol. 2, pp. 252, 255; to Dalloz, Jurisprudence Generale (1849), pp. 1, 7, 8 - there appears to be nothing in the French books inconsistent with that; to Revue Generale de Droit International Public (1895), vol. 2, p. 396 (article by Prof. Audinet); to Journal du Droit International PrivŽ (1895), vol. 22, pp. 31, 34, 37 (article by P. de Paepe); and to Revue du Droit International, 3rd series, vol. 3, pp. 301, 318 (article by Prof. Visscher).] The two last cited articles are by Belgians.

The German authorities are Journal du Droit International PrivŽ (1907), vol. 34, pp. 161, 168, and Von Hellfeld v. Russian Government, which appears in The American Journal of International Law (1910), vol. 5, p. 490, and which, at p. 516, says that: "It is true that by the law of nations there are exceptions to the exterritoriality of States, in such cases as proceedings affecting real property, and of a voluntary submission to the foreign jurisdiction." Gustav Salling v. United States Shipping Board, referred to in the Revue International du Droit Maritime (1922), vol. 33, pp. 868-9, merely reaffirms what was said in the Von Hellfeld case (supra). See also the article by Prof. L. Von Bar in the Journal du Droit International Prive (1885), vol. 12, pp. 645-6. As regards Italy, there is a decision of the Tribunal Civil de Rome, reported in the Journal du Droit International (Clunet) (1924), vol. 52, p. 1113, and also the case of Little v. Riccio and Fischer, in the Annual Digest and Reports of Public International Law Cases, 1933-34, p. 177; see also the article by Prof. Gabba in The Journal of Private International Law (1890), vol. 17, pp. 27, 39. And lastly, as regards Russia, the position is dealt with by Prof. Allen in the "Position of Foreign States before National Courts," 1933 ed., p. 293.

By his summons the Sultan asked for two things - to set aside all proceedings and to stay further proceedings. It is submitted that the first part of that on no view of the matter can be acceded to, because the service was perfectly proper at the time - 1947 - when it was made, when he was not an independent sovereign. There is no certificate from the Secretary of State saying that in 1947 the Sultan was an independent sovereign entitled to immunity. The only clear statement is the 1951 certificate. If my arguments about waiver and real property be wrong, still the right order would have been to stay further proceedings on the originating summons, and not to set aside the service.

C. P. Harvey Q.C., in reply, dealt first with the question of real property. There are certain principles of international law on which States have agreed, but they have often applied those principles in different ways in their own municipal courts, in that sense making their own rules derived from the principles of international law: The Cristina.¹⁶ Whether it has become a rule of France, of Italy, or of Belgium that real property is not subject to immunity may or may not be the case, but it has not become a rule of English law. Of the statements on which the respondents relied, that in Westlake appears to be the broadest - that "no country can be expected to renounce the determination of the property in its soil" - but it is difficult to see why this alleged exception of real property follows on his proposition. Hall, in the 7th ed., at p. 181, said that he could not really see why a distinction should be made between real property and movable property. In the 7th ed. of Oppenheim, vol. 1, at p. 716, it is said that "the local courts also have jurisdiction as regards immovable property held within the boundaries of the receiving State by an envoy, not in his official character, but as a private individual."

The question of renouncing jurisdiction seems to be completely different from the question whether there shall be immunity. Dicey's Conflict of Laws, 6th ed. (1949), at p. 131, states that, subject to the exceptions he mentions, the court has no jurisdiction to entertain an action or other proceeding against any foreign sovereign, and his first exception is "the court has jurisdiction to entertain an action against a foreign sovereign ... if such defendant ... appears before the court, voluntarily waives any privilege and submits to the jurisdiction of the court"; and the second exception is that "the court has jurisdiction to entertain an action against a person belonging to the suite of an ambassador or diplomatic agent, if such person engages in trade." And the footnote on p. 169 says that "how far jurisdiction as to land is subject to the restrictions in rule 19 [p. 131] is not clear." The above are the only exceptions to his broad proposition. If the pronouncements of Westlake are taken as good, they raise a swarm of questions to which jurists have never addressed themselves at all. [Reference was also made to Hals-bury's Laws of England, 2nd ed., vol. 1, pp. 27-8, and to Wolff's Private International Law, 2nd ed. (1950), p. 57.]

16 [1938] A.C. 485, 496-7.

With regard to the Continental jurists, the exception for immovables by foreign jurists arises from the distinction which they make between jure gestionis and jure imperii - that is completely unknown to English law. De Paepe's statement in the Journal du Droit International PrivŽ, vol. 22, at p. 34, must be regarded as that of one who is schooled in that distinction. It is difficult to believe that Lord Atkin would have stated the position so dogmatically in The Cristina¹⁷ if he had thought that there was an exception of immovable property; and it is plain from the judgment of Lord Wright¹⁸ that something had been said in regard to it. It has never been decided in this country. The Italians seem to have given greater latitude to the exceptions; they say, let us look at in what character the foreign sovereign has purported to act, and then it becomes easy to decide whether the transaction is private or not; they went so far as to say that their rule was based on the nature of the act.

There are two French cases in which the court held that there is no rule as to immunity of immovable property, and that there could not be a distinction between his sovereign and private property: Robine v. Consul de Grand Bretagne, and Rossignol v. ƒtat Tchecoslovique, which are in 1951 Darras, Revue Critique de Droit International PrivŽ, at pp. 307 and 305 respectively. Those, at any rate, are two decisions of the French courts which get nearer than anything which has been cited for the respondents to the question whether lawyers of the Continent do accept this exception from the doctrine of immunity, and it is said expressly in those cases that they do not.

Sir Robert Phillimore's observations in The Charkieh¹⁹ were obiter. That was a case about a ship, not land, and he held that the Khedive was not a sovereign. He said²⁰: "It was ingeniously argued ... that it mattered not whether the suit was in rem or in personam, because the object of the jus in rem was to enforce the jus in personam ... but this argument in its relation to the present case appears to me to be fallacious." [Reference was also made to Taylor v. Best.²¹] In foreign countries if a foreign sovereign does come in he is regarded as having made a submission to the jurisdiction. That is not the law in this country since the decision in The Parlement Belge,²² and if that is right the foundation goes from beneath the proposition that somehow or other proceedings in rem can be taken

17 [1938] A.C. 485.

18 Ibid. 506.

19 L.R. 4 Ad. & Ecc. 59, 86.

20 Ibid. 97.

21 (1854) 14 C.B. 487, 522.

22 5 P.D. 197.

against a foreign sovereign without disturbing his independence or dignity. With regard to the suggestion that immunity is waived if the person claiming it incorporates himself into the jural system of the State, Duke of Brunswick v. King of Hanover²³ appears to be the only case in which anyone has incorporated himself into the jural system of a State; it was put expressly by Lord Langdale M.R. on the ground that the British subject on becoming King of Hanover did nothing to renounce his character as a British subject but, on the contrary, reaffirmed it, and took the oath of allegiance to Queen Victoria, took his seat in Parliament and exercised his rights as an English Peer. In those circumstances this concept of incorporating himself into the jural system seems to suggest that the test is allegiance, in other words, his subjection to the State as a subject. [Reference was also made to Strousberg v. Republic of Costa Rica²⁴ and to In re Russian Bank for Foreign Trade.²⁵]

Sir Robert Phillimore in The Charkieh²⁶ also said that the Khedive by his conduct waived the immunity. In saying that he was clearly speaking as a civilian. That might have been the law at the time of his judgment, but since then the law has been absolutely crystallized for our purposes by the Kelantan case,²⁷ Mighell v. Sultan of Johore²⁸ and Kahan v. Pakistan Federation,²⁹ by the last of which, it is submitted, the door was finally locked. The courts have established that there is no such thing as a waiver in advance, even by express words. The whole basis of the argument for the respondents that there is an immunity in respect of real property is simply not sound.

Sir Lionel Heald A.-G., recalled on the question of the alleged exception of real property, stressed the importance of maintaining so far as possible the current of established authority, and the question was whether this matter was not really settled already by English case law, with the result that all the refinements of foreign lawyers and tribunals were really unnecessary to the determination of the matter. He continued: The proposition of English law is that there is no such thing as international law in our courts, except such principles as have been incorporated into, or grafted on to, our law by statute or case law: Chung Chi Cheung v. The King³⁰; Mortensen v. Peters.³¹ The next point

23 (1844) 6 Beav. 1, 50-51.

24 (1880) 44 L.T. 199, 201.

25 [1933] Ch. 745, 768.

26 L.R. 4 Ad. & Ecc. 59.

27 [1924] A.C. 797.

28 [1894] 1 Q.B. 149.

29 [1951] 2 K.B. 1003, 1020.

30 [1939] A.C. 160, 167-8.

31 (1906) 8 F. (J.) 93, 101.

is whether there is not already in fact incorporated in our law a legal principle which covers this case. It is submitted that there is such a statement of the legal principle in The Parlement Belge,³² and that may be underlined by a reference to what Lord Wright said in The Cristina.³³ I emphasize that the fundamental principle is the impropriety of any proceeding against a sovereign himself, and it is immaterial in the application of that principle what was the subject-matter of the dispute. It may well be that there could be legislation to alter that position. The statements of Lord Atkin in The Cristina³³ and of Scrutton L.J. in The Porto Alexandre³⁴ do not admit of any qualification. The former said plainly that there is no limit to the immunity: "the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages." It is submitted that if a matter in respect of a sovereign's own personal private property came before the court that sentence of Lord Atkin's would be regarded as decisive authority. If the third secretary of a foreign embassy entered into a transaction in relation to land, and broke his contract, one can do nothing about it. It is said, on the other hand, that the doctrine of immunity stated by Lord Atkin goes further than is recognized by international law. The difficulty is to find any principle on which the other countries are proceeding; the only one apparently is this distinction between jure gestionis and jure imperii. The foreign cases should be regarded with great care, because it is difficult to arrive at their real value without considering in each particular case the limitations which the country has adopted on this subject. The Charkieh³⁵ is not, it is submitted, a very firm rock to found on.

C. P. Harvey Q.C. Turning now to the argument for the appellant on the question whether the Sultan has submitted to the jurisdiction, extracts from Oppenheim and Hall seem fairly to express the points which were taken and on which reliance was placed for the respondents. The propositions may be accepted as a fair sample of the propositions for which the respondents contend in this case. It is submitted, however, that pronouncements of that sort by international jurists are unsafe guides for decisions on points of law, because the task of a judge who tries

32 5 P.D. 197, 217.

33 [1938] A.C. 485, 510.

34 [1920] P. 30, 36.

35 L.R. 4 Ad. & Ecc. 59.

the case is completely different from that of the jurists. Whatever may have been the position of His Majesty King George VI in Singapore, the effective authority was that of the Japanese, and it is impossible to say that the court addressed was in any sense the court of His Majesty, and that by going to such court the Sultan can be said to have submitted to the exercise of any sovereignty in His Majesty. It may be that he can be said to have submitted to the Japanese, but there is nothing to show that they recognized him as a sovereign. To say that the Japanese court is the same court is really begging the question, and not addressing oneself to the question whether the court is an emanation of the sovereign. It is not for juristic purposes the same court. As Evans J. said in his judgment in the Court of Appeal: "In fact a proclamation of annexation was issued and the name of the court was changed, indicating a changed court." [Reference was made to Haile Selassie v. Cable & Wireless Ld.³⁶ and Haile Selassie v. Cable & Wireless Ld. (No. 2).³⁷]

The next proposition for the respondents was that a foreign sovereign by going to the courts of a country submits himself not merely to the jurisdiction of the court, but to the judicial system of the country. That is simply not true: the Kelantan case.³⁸ The Japanese Judgments and Civil Proceedings Ordinance is legislation, and legislation is prima facie confined to those people who owe allegiance to the legislative power: Ex parte Blain, In re Sawers,³⁹ where it was said "that the legislation of any country binds its own subjects and the subjects of other countries who for the time bring themselves within the allegiance of the legislating power." Applying that to the present case, one is at once brought up against the rule that no sovereign owes allegiance to another sovereign. Had it been intended to make the new rights given by the ordinance available against a foreign sovereign it would have said so; not having said so it does not. [Reference was also made to R. v. Keyn.⁴⁰] A country can legislate specifically so as to include a foreign sovereign and so catch him in respect of this particular subject-matter, namely, jurisdiction of the courts, and it was actually done in the "Chinese Aircraft in Hong Kong" case, see the International Law Quarterly, 1951, vol. 4, pp. 159 and 176: there

36 [1938] Ch. 839.

37 [1939] Ch. 182.

38 [1923] A.C. 395, 400, 413-4.

39 (1879) 12 Ch.D. 522, 528.

40 (1876) 2 Ex.D. 63, 84-5.

was there a Supreme Court of Hong Kong (Jurisdiction) Order in Council, 1950. That appears to be unique, but it has been done, and that is the sort of thing that should have been done to make the ordinance of 1946 available against the sovereign in this case.

B. MacKenna Q.C. in reply on the real property question. If what has been said about Ex parte Blain³⁹ and R. v. Keyn⁴⁰ were applied to this case it would mean that not only the judgment of the Sultan would not be subject to review under section 3 of the ordinance but also the judgment obtained by any foreigner. There were cases in the United States where the question arose as to the validity of acts done and judgments given during the occupation in the American civil war by courts which were not courts of the United States: Johnson v. Atlantic, Gulf and West India Transit Co.⁴¹; Hickman v. Jones⁴²; United States v. Rice⁴³ and Fleming v. Page.⁴⁴

Turning to the question of land, the Board may be reminded how limited is the relief the respondents are claiming in these proceedings. They are not claiming damages, or an order for delivery up of the land, or an injunction, or possession. All that they seek is a declaration by the court in Singapore that the judgment which impeaches their title to the land should be set aside, and the question is whether there is any immunity in the Sultan in respect of proceedings seeking that limited relief. A short general proposition which covers this case is that our courts have jurisdiction to adjudicate on the title to immovable property in this country and for that purpose to deliver judgments binding on foreign States, and it may be added, except possibly in the case of a foreign State's embassy or legation or other lands held by that State for public purposes. The authorities which I have cited support that proposition: Westlake, 7th ed., para. 191, p. 270; Dicey's Conflict of Laws, 5th ed., p. 195, note 1; and Phillimore's International Law, 3rd ed., vol. 2, pp. 141-2, 221, which shows that his view about real property being an exception to the general rule of immunity was unaltered by the decision in The Parlement Belge.⁴⁵

The argument in support of this proposition is that the general rule of immunity of foreign sovereigns from litigation is a universally recognized rule of international law. That general

39 12 Ch.D. 522, 528.

40 2 Ex.D. 63, 84-5.

41 (1895) 156 U.S. 618, 645.

42 (1869) 76 U.S. 197.

43 (1819) 17 U.S. 246.

44 (1850) 50 U.S. 603.

45 5 P.D. 197.

rule is qualified by an exception in favour of immovable property, and the assumption is that the rule as qualified by the exception forms part of our law because it is universally accepted. There is no authority which establishes that the general rule in England is not qualified by the exception. In support of the existence of that exception are Phillimore, Westlake, Hall and Oppenheim, and the two Italian decisions and the Russian. There are therefore three cases more or less in point, and there are also various dicta of foreign tribunals in favour of the exception. Against that view there are the two recent French cases of Robine⁴⁶ and Rossignol.⁴⁷ Whether those cases are right or wrong, they have to be viewed in the light of the other decisions which have been brought to the Board's attention which, by way of decision or dicta, laid down that this question of immovable property stands outside the immunity. The trust cases are inconsistent with any general unqualified rule that English courts cannot adjudicate on questions of title to property so as to bind foreign States.

April 22. The judgment of their Lordships was delivered by 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 Evans J.) which arises in the following circumstances.

The appellant became Sultan of Johore, by succession to his father, in 1895. By an indenture dated December 1, 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 8, 1926, the lady died intestate, leaving surviving her the appellant and their only son, Abubakar Tunku (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 22, 1926, between the appellant and Abubakar purported to convey these two properties to the appellant to hold on trust for the eldest daughter of Abubakar during her life, and after her death for any of her issue then living. On March 1, 1939, this eldest daughter died intestate, an infant and unmarried, and Abubakar was on January 23, 1940, granted letters of

46 1951 Darras, Rev.Crit.de Droit Int.PrivŽ. 307.

47 Ibid. 305.

administration of her estate. By Mohammedan law, on the girl's death intestate, her father, Abubakar, would become entitled to five-sixths of the properties and her mother, Ungku Fatimah, would be entitled to one-sixth. By an indenture dated June 28, 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 properties above mentioned.

In the course of the late war, the whole of Malaya (including Johore) and the Colony of Singapore were invaded, and for a time occupied, by Japanese military forces. Singapore itself was thus occupied on February 16, 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 Malay 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 "Syonan Kotohoin," staffed with judges appointed by the Japanese administration, which exercised a jurisdiction generally corresponding with that belonging to the former Supreme Court of the Straits Settlements. The practice and procedure of the Syonan Kotohoin was, in all respects material to this appeal, indentical with the practice and procedure of the former Supreme Court of the Straits Settlements.

On May 3, 1945, the appellant took out an originating summons in the court of the judge at Syonan (Singapore), naming as defendant the Custodian of Enemy Property, Syonan. By this summons he applied to the Japanese court to determine the construction of the deeds of December 1, 1903, and of December 22, 1926, above referred to, and to decide whether, having regard to the fact that the parties to these deeds were Mohammedans, 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 Syonan Kotohoin. At the first hearing 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 18, 1945, and it was declared that Mohammedan 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 properties 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 1, 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 the Colony may be curried 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 ending 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 as ought 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 judgments, 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 proceedings 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 appropriate 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 provisions 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 generality 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 person as 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 existing 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 respondents 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 18, 1945, of the Japanese court in the appellant's favour, and applying to set aside this decree, or, alternatively, asking for liberty to appeal against the Japanese decree on grounds therein stated. On learning that the originating summons had been issued, the appellant's solicitors 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 7, 1949, the summons was dismissed with costs. The 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 appellant had for the time being succeeded.

The appellant appealed from Gordon Smith J.'s decision to the Court of Appeal of the Colony of Singapore. His appeal was dismissed, but the reasons given by the three judges materially differ and must be separately summarized. 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 King George VI to that effect, and that the communications then before the court from His Majesty'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 resulting immunity from the proceedings now taken against him by the respondents.

Sir H. C. Willan 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 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 respondents to reverse the decree which the appellant had obtained was a continuance of the proceedings instituted by the appellant 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, Evans J., 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 respondents 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 conclusion on these issues. The ground on which this 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. MacKenna, for the respondents, cited various dicta, both English and foreign, in support of this view, and referred in this connexion to the statement of Sir Robert Phillimore in The Charkieh⁴⁸ - a statement which was not in fact necessary for the decision - where that learned civilian stated that a sovereign's exemption

48 L.R. 4 Ad. & E. 59, 97.

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 Lordships do not find it necessary to pronounce on this proposition 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 this 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 jurisdiction 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 courts 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, correspondence 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 information as to the status of the appellant were ambiguous, and that the Secretary of State, instead of issuing the required certificate, 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 1, 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 tendered to their Lordships, without objection from the respondents, as containing the necessary and conclusive information from the proper quarter. Their Lordships so accept it and take judicial notice of the fact so certified. They can therefore proceed on the admitted basis that the appellant was recognized 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. Ld. v. Kelantan Government,⁴⁹ namely, 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 whether a court might be entitled, if the Crown failed to answer the inquiry in conclusive terms, to accept and act on "secondary information" of another kind. (Contrast the speeches of Viscount Cave and Viscount Finlay with that of Lord Sumner.)

The second question concerns waiver. The appellant himself 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 reversing 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 on his sovereign immunity. In Duff Development Co. Ld. v. Kelantan Government,⁴⁹ after the Kelantan Government, which was recognized 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 put the contrast thus⁵⁰: "The application for leave to enforce the award is a new proceeding, and though connected with the earlier application is distinct from it."

Here, as Willan C.J. points out, the application of the respondents is concerned with the very matter raised by the appellant in the Japanese court, namely, the title to these properties. Their Lordships are of opinion that section 3 of the Ordinance of 1946 on its true construction authorizes an application in the

49 [1924] A.C. 797.

50 Ibid. 810.

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 authorized 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. Otherwise, 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 principle 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 which 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 rules 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,⁵¹ and from the speech of Lord Atkin in The Cristina.⁵² 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, and 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 taken to be that which is laid down by Brett L.J. in the former case where he compares the position of a shipowner, 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 says⁵³: "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 Larivi�re v. Morgan⁵⁴; and, although the decision in that case was reversed on its facts when it reached the House of

51 5 P.D. 197.

52 [1938] A.C. 485.

53 5 P.D. 197, 219.

54 (1872) L.R. 7 Ch. 550.

Lords, Lord Cairns seems to have felt no doubt as to the propriety of the jurisdiction exercised.⁵⁵ Indeed, in Duke of Brunswick v. King of Hanover⁵⁶ 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.⁵⁷

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 Cristina⁵⁸. 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 sovereign's ship engaged in ordinary commerce - a reservation that was in fact made by the majority of the House of Lords in The Cristina.⁵⁸ 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 distinguished 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 Belge⁵⁹ 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 on the existence of the general principle. Nor is it necessary for their Lordships to express any opinion in this case on the question whether and, if so, to what extent, proceedings which concern the title to immovable property within the jurisdiction form 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.

Solicitors: E. F. Turner & Sons; Peacock & Goddard.

55 L.R. 7 H.L. 423, 430,

56 6 Beav. 1.

57 Ibid. 39.

58 [1938] A.C. 485, 494, 505.

59 5 P.D. 197.