Allied Company v Netherlands Indies Government

• Jurisdiction: Singapore
• Judgment Date: 05 December 1947
• Date: 05 December 1947
• Docket Number: Case No. 13
• Court: Court of Appeal (Singapore)

Singapore Colony, Court of Appeal.

(Murray-Aynsley, C.J., Willan, C.J. (Malayan Union), and Jobling, J.)

Case No. 13

Allied Company

and

Netherlands Indies Government.

Conclusiveness of Statements of Executive — Sovereignty over Non-Self-Governing Territory — Netherlands Indies.

Unions of States — International Legal Personality — Right of Government to Sue — Netherlands Indies — Recognition of Juristic Personality of Dependent Territory — Conclusiveness of Statements of Executive — Legal Relationship of Netherlands Indies to Kingdom of Netherlands — Netherlands Indies Accountability Act, 1864 — Law of Singapore Colony.

The Facts.—In the present case the appellant, the Allied Company, was sued by the Netherlands Indies Government for the recovery of certain property. The appellant took out a summons calling upon the Netherlands Indies Government to show cause why the action should not be dismissed on the ground that the Netherlands Indies Government was not a juristic person entitled to the right to sue in the courts of Singapore Colony. At the hearing on the summons judgment was given in favour of the Netherlands Indies Government. It was against that judgment that the present appeal was brought. In support of the appeal counsel argued that no such juristic entity as the Netherlands Indies Government existed and that, if it did exist, it had not been recognised by the British Government as a separate entity from the Kingdom of the Netherlands and as such entitled to sue on its own behalf. The appellant substantiated this contention by producing a certificate by the Foreign Office in which it was stated that His Majesty's Government had since September 1, 1939, continuously regarded the sovereignty in the territory of the Netherlands East Indies as vested de jure in Her Majesty the Queen of the Netherlands. Counsel for the respondent contended that there was no absolute rule of law that, as regards a monarchical foreign State, a suit can only be brought in the name of the sovereign of that State, and that in any event the sovereign of the Kingdom of the Netherlands had, in conformity with Netherlands law, delegated sufficient powers to the Netherlands Indies Government for it to sue for the recovery of property belonging to it.

Held (Jobling, J., dissenting): that the appeal should be dismissed. Notwithstanding that the Foreign Office certificate declared that sovereignty in the territory of the Netherlands Indies was recognised as being vested de jure in the Queen of the Netherlands, there had been a delegation by the sovereign of the Netherlands authorising and empowering the Netherlands Indies Government to institute legal proceedings in connection with property belonging to it.

Murray-Aynsley, C.J., said:

“Prima facie if a person, natural or juristic, issues a writ disclosing a known cause of action, that is sufficient. The cause of action here is for the recovery of certain property alleged to be the property of the plaintiff. Is the plaintiff a person? On this all the evidence is that the plaintiff is a juristic person by the law of the Netherlands Indies. This is unequivocally set out in the affidavit of Jonkheer Elias.1

“It is, however, argued that in the case of a monarchical state proceedings must be taken in the name of the monarch. This theory seems to be exploded by the case of Yzquierdo v. Clydebank Engineering and Shipbuilding CompanyELR2 especially the judgment of Lord Robertson. It is true that this was an action for contract, but, in my opinion, that reasoning would also apply to an action for tort.

“The person who should sue is the person who is designated to do so by the law of the particular state. I distinguish the case of Colombian Government v. RothschildENRENR3 as explained in United States of America v. WagnerELR4 on the ground that in the

former case the Columbian Government was not a juristic person

“A suggestion was made that the defendants might be exposed to further proceedings by some other party. I think that that is disposed of in paragraph 14 of Jonkheer Elias's affidavit: ‘the use of any other name in such suits would be contrary to the law of the Netherlands Indies’.

“In my opinion the appeal should be dismissed.”

Willan, C.J. (Malayan Union), said:

“At the hearing of this appeal Mr, Hatchard, counsel for the appellants, directed his argument solely to the point that the Netherlands Indies Government is not a legal entity and therefore not competent to sue in the High Court of the Colony of Singapore. He submitted that if the Court is in doubt as to the status of a foreign sovereign that doubt can be resolved by reference to the proper officer of state—in this case the Special Commissioner, a foreign office representative stationed in Singapore. Reference to the Special Commissioner as to the status of the appellant produced the following reply, which was put in evidence:

‘In reply to your letter of the 19th September (ref. KEWH/HE) I am directed by the Special Commissioner to inform you that His Majesty's Government continue as heretofore to recognise Dutch Sovereignty over the Netherlands East Indies.

‘The Dutch Government in Batavia is normally referred to as the Government of the Netherlands East Indies.

‘His Majesty's Government do not recognise any other Government in the territories concerned.’

That reply is dated the 23rd of September, 1946. Mr. Hatchard pointed out that that reply made no reference to the Netherlands Indies Government.

“There is also in evidence a certificate of the Foreign...