WORLD WAR 2 & THE LAW

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WORLD WAR 2 & THE LAW


North Korea nuclear tests has raised fears once again of the world plunging into a World War. The last World War took place in the 1940s of the last century. My grandfather who passed away recently used to speak about a mansion he once owned in Sandakan that was seized by the Occupying Forces in 1942. The property was purchased subsequently by a businessman in 1945. After the war my grandfather tried to initiate legal proceedings to recover the property but was unable to do so due to insufficient evidence since all documents of title were destroyed during the war. Whenever my grandfather told this story tears would run down his eyes. I am sure my grandfather was not the only one who had claims to make arising from the War. Can you feature stories about cases on claims revolving around World War 2?

Kay Jay Ill



LEX BORNEO: World War II generated a considerable amount of litigation. Some of these claims were for injuries suffered in war-time and claims for property loss or damage or return of property seized by the enemy. We feature 3 of these cases, the facts and law of which make interesting and challenging reading.

THE CASE OF THE LOST PIANO - PENANG

In Martin v The World Piano Company the lady plaintiff claimed the return of a Weisbrod baby-grand piano from The World Piano Company.In their defence, the World Piano Company denied the plaintiff’s ownership of the piano or even if the plaintiff was the owner she abandoned the piano in December 1941 and made no provision for its future care and maintenance. The World Piano Company said they bought the piano on 30th April 1946 in a dilapidated condition and had expend a sum of $425 in material and labour to repair it.
The plaintiff had bought the piano in question in Colombo, Ceylon (now known as Sri Lanka) and was in possession of it for at least ten years prior to 1941. In December 1941 when the plaintiff was compulsorily evacuated from Penang in anticipation of the impending Japanese occupation of the island, the piano was at her husband’s residence, 9 Lim Mah Chye Road, Penang. She was obliged to leave the piano there. The plaintiff’s husband, an internee during the Japanese occupation, returned to Penang on 21st October, 1946. He unsuccessfully endeavoured to recover possession of the house, 9 Lim Mah Chye Road which he had held on a monthly tenancy before the war. A list of furniture then in his house did not disclose the piano.
On making further enquiries and searching, he found the piano in the shop of the The World Piano Company in Bishop Street and was able to identify it. His wife arrived in Penang shortly afterwards and he and she examined and identified the piano. Thereupon a claim for its return was made by the plaintiff’s solicitors. The plaintiff’s husband alleged that when he first saw the piano in defendant company’s premises he enquired of a man there, where the piano came from and he was informed it came from “Sumatra”, and he says that on that and the next occasion a key-board lid bearing a name “Naussens” was carved on the piano. The suggestion therefore was that The World Piano Company was endeavouring to mislead as to the origin and disguise the identity of the piano.The piano was sold in the first instance by one Macartney, a Welfare Officer, dressed in a military type of uniform, on the 10th April, 1946, at the Salvation Army Club in Burmah Road, Penang to a photographer, one Sheik Sulieman Rafee of 235, Burmah Road for $175. Sheik Sulieman Rafee finding that repair of the piano would cost too much, re-sold to The World Piano Company for $330, and handed over the receipt given to him by Macartney.

On 3rd April 1947 the British judge held there was never any contract whereby the ownership or possession of the piano was passed by the plaintiff to Macartney,Sheik or The World Piano Company. Being private personal property it did not pass to the occupying power, nor after the enemy occupation period, to members of the relieving forces. Whether it was removed from 9, Lim Mah Chye Road by the Japanese troops or by the Allied Forces on re-occupation or looted by any other unauthorised person, Macartney, Sheikh and The World Piano Company had every reason to suspect that there was not a good title to the ownership in the seller. In short the piano was not purchased in good faith without knowledge of the defective title. It was therefore ordered that the piano in question be returned to the plaintiff and The World Piano Company do pay the plaintiff’s costs of this suit.
LEX BORNEO POSER: The decision may have been just to the plaintiff but was it fair to The World Piano Company? According to the evidence in this case The World Piano Company said they bought the piano on 30th April 1946 in a dilapidated condition and had expend a sum of $425 in material and labour to repair it.
Had it not been for the sale transactions of the piano involving Macartney, Sheikh and The World Piano Company the piano would have been rendered worthless? Should not the judge have awarded the cost of repairs to The World Piano Company since the piano was ordered to be returned to the plaintiff? We like to hear your views.

THE CASE OF THE WARTIME MARRIAGE – SELANGOR
In De Alwis v De Alwis a wife who was married to her husband during the Japanese Occupation wanted to divorce her husband on the ground of adultery by the husband. Howcver before that could be done the Court first had to determine whether the wife and the husband had been legally married. If their marriage which took place during the Japanese Occupation was not recognized in law then there was no question of a divorce decree being granted. Second and perhaps more importantly no damages could be claimed by the petitioner against her husband.
On the trial of all matrimonial causes the first step is to prove the marriage and, in accordance with the usual practice, the wife petitioner put in evidence the certificate of her marriage with the respondent. That certificate disclosed that the marriage of the petitioner and the respondent was solemnised in Kuala Lumpur on the 29th day of October, 2604 (1944) before the Registrar of Civil Marriages for the State of Selangor. The year 2604 is the year according to the Japanese Calendar.Since the marriage took place during the Japanese occupation, this immediately raised the question as to whether the marriage was valid. By virtue of Part VI of the Christian Marriage Enactment (Cap. 109) of the Federated Malay States, Christian marriages may be solemnised by a Marriage Registrar. Marriage Registrars are appointed by the Residents of States, under the provisions of section 6 of that Enactment, the relevant portion is as follows:— ”The Resident of any State may appoint one or more Christians, either by name or as holding any office for the time being, to be the Marriage Registrar or Marriage Registrars for such State or for any place therein and may revoke any such appointment.” On the question of the validity of this particular marriage the Court heard the evidence of Mr. P. Samuel, Assistant Registrar, Supreme Court, who was appointed Marriage Registrar for the State of Selangor during the Japanese occupation, and also the evidence of Mr K. K. Benjamin, an Advocate and Solicitor of the Supreme Court, who, during the Japanese occupation, was appointed by the Japanese Authorities Legal Adviser and Judge for the State of Selangor. The evidence of Mr. Benjamin was that during the first half of the year 1942 it came to his notice that there were a number of persons in Selangor who wished to get married before a Marriage Registrar under the provisions of the Christian Marriage Enactment. He suggested to the Japanese Governor of the State of Selangor that Mr. Samuel should be appointed Marriage Registrar for that State. The Japanese Governor concurred and this appointment was published in the Malay Mail (New Order) on the 26th day of May, 2602 (1942), as a Government Notice. That Government Notice reads as follows:—
NOTICE UNDER THE CHRISTIAN MARRIAGE ENACTMENT. Mr. P. Samuel, Registrar, Supreme Court, Kuala Lumpur, has in addition to his own duties, been appointed Marriage Registrar for the State of Selangor with effect from 20th May, 2602.
Dated:- 20th May 2602.
THE SELANGOR ADMINISTRATION.
Mr. Benjamin gave further evidence that the Malay Mail (New Order) was the medium by means of which the Japanese Authorities brought official communications to the notice of the public, and that publication of official notifications herein was equivalent to notifications being published in the present Government Gazette. Mr. Samuel’s evidence is that he was appointed Registrar of Christian Marriages for the State of Selangor with effect from the 20th day of May, 1942, and continued in that appointment until Malaya was liberated by the British Forces in September, 1945. Accordingly, when he solemnised this particular marriage on the 29th day of October, 1942, he was Registrar of Christian Marriages appointed by the Japanese Governor of the State of Selangor. Mr Samuel, being a Christian, fulfils the qualification prescribed by section 6 of the Ordinance. He further gave evidence that in this particular marriage, and in all other marriages solemnised by him, he followed the procedure prescribed by the Christian Marriage Enactment in exactly the same way as it was followed with regard to marriages which took place prior to the Japanese occupation.
The question now before the Court was whether to recognize this marriage since it took place during the period of enemy occupation.To decide this issue the Judge turned to International Law, Article 43 of the Hague Regulations respecting the Laws and Customs of War on Land is as follows:— The authority of the legitimate Power having actually passed into the hands of the occupant, the latter shall take all steps in his power to re-establish and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. Thus, subject to the over-riding power vested in an occupant to take all steps necessary for the maintenance and safety of his army and for the realisation of the purpose of war, the occupying power has the duty of administering an occupied country according to the laws as they existed immediately prior to the occupation. In this particular case the Court was satisfied that the Japanese Authorities respected the provisions of the Christian Marriage Enactment in the State of Selangor. The Japanese Governor of that State was the official of the occupying Power equivalent to the Resident of Selangor appointing Mr Samuel to be a Registrar of Marriages under that Enactment.
The Court also satisfied that Mr. Samuel solemnised this particular marriage in accordance with the provisions of that Enactment. The Court now had to decide whether this marriage was valid at the time it was solemnised under the authority of the Japanese Authorities and whether it remains valid now that Malaya has returned to the authority of the legitimate Power. In order to answer the question the Court considered the right of postliminium under international law. The right of postliminium is defined as follows:— When territory which has been occupied and population which has been controlled by an enemy comes again into the power of its own state during the progress of war,the legal state of things existing prior to the hostile occupation is re-established. However it does not, except in very few cases, wipe out the effects of acts done by an invader, which for one reason or another it is within his competence to do. Thus judicial acts done under his control, when they are not of a political complexion, administrative acts so done, to the extent that they take effect during the continuance of his control, and the various acts done during the same time by private persons under the sanction of municipal law, remain good. Were it otherwise, the whole social life of a community would be paralysed by an invasion. Accordingly, since the act of the Japanese Authorities in appointing Mr. Samuel a Marriage Registrar for the State of Selangor was an act which it was within their competence to do and which was done in accordance with the existing law, and since this marriage was solemnised in accordance with the provisions of the Christian Marriage Enactment (Cap. 109), the Court held it was valid at the time it was solemnised and also that it still remains valid. The marriage between the petitioner and the respondent was held to be valid on 5th July 1947 and then the Court proceeded to continue with the examination of whether the husband was gulty of adultery.

THE CASE OF THE CONTRABAND SHANGHAI CIGARS - SINGAPORE Five parcels were parcels of cigars of a declared value of $2,100 Shanghai currency, were sent from Shanghai addressed to the German Ambassador Graf von der Schulenburg, Moscow. These parcels were detained in Singapore on 21st May 1940 aboard the vessel the M.V. Conte Rosso which was on a voyage from Shanghai to Brindisi in Russia. The Crown sought an order for the seizure and sale of the cigars as they alleged that the goods were of enemy origin or were enemy property
The cigars were the property of the person who was the German Ambassador at Moscow which was at all material times the capital of a neutral State. The German Ambassador however was and is an enemy national since the British Empire was in 1941 at war with Germany. The issue for the Courts to decide was whether the cigars which are the property of an enemy national living in a neutral country which was not at the time occupied by Germany ‘enemy property’. If they were held to be enemy property then they would be seized and sold by the Crown in Singapore. Under the existing law of that time goods which are enemy property includes goods belonging to any person in any territory under enemy occupation or control. These cigars were the personal property of the German Ambassador as they were not purchased out of an entertainment allowance provided by the German Government. According to the judge Enemy property means property owned by an enemy and that destination of the property is irrelevant, unless perhaps if that destination were within the British Empire. The purpose of the law at that time was “for restricting further the commerce of Germany”. What may be detained are goods which are enemy property found in a ship which sailed from a port other than an enemy port after 4th December 1939. An Englishman or a neutral who is in Germany or in German occupied territory was regarded as an alien enemy, but a German resident in England was not an alien enemy. So goods the property of an Englishman or of an ally or of a neutral living in or carrying on business in Germany or in German occupied territory are tainted with Enemy character. To hold otherwise would be to defeat the whole purpose of English law to damage German trade since an enemy individual in a neutral country might import goods, the benefit of which might directly or indirectly be transferred to Germany. Directly, because the goods themselves might reach Germany, indirectly because the trade in those goods might build up a German credit in a neutral country. The purpose of the law was to hit German trade and credit. Probably these cigars were intended to be for the Ambassador’s own use, but the Court said it cannot inquire into the purposes to which the enemy individual intends to put his goods. The lawyer for the Crown suggested the cigars were destined for German territory in as much as they were destined for a German Embassy. However the Court did not buy into this argument and entertained considerable doubt as to whether an Ambassador’s official residence, whether held under a lease from a subject of the State to which the Ambassador is assigned, or held in perpetuity by the assigning State, is part of the latter State.
The Court asked if it possible that the doctrines of international law are so rigid that a local burglar who has broken and entered a foreign embassy and, having completed his crime, is arrested in his own country, cannot be tried in the Courts of the country?In the mind of the Court there was clear indications that foreign state owned ship and land are not, when within the territory of another state, exterritorial and, part of the foreign state
In the words of the Judge “the view I take the cigars are the property of an enemy, and such immunity as an Ambassador enjoys as to his private property is the immunity accorded to it in the state to which he is accredited. The privilege affording Ambassadors and other accredited representatives of foreign countries immunity from all writs and processes is an ancient doctrine of the common law declared in terms by the Diplomatic Privileges Act, 1708.
I have no doubt that in normal times courtesies are extended to Ambassadors accredited by a friendly nation to another nation while they are in transit through our country, but I do not imagine that similar facilities would be given to an enemy Ambassador if he attempted to pass through our territory on his way to assume his duties in a neutral state. There is no reason why the words ‘enemy property’ should not be given their ordinary meaning of property owned by a person who is an enemy national irrespective of the destination of the property. I conclude that these cigars the property of a German national who was not residing in any part of the British Empire at the time when the cigars were seized must be regarded as enemy property, and I make an order that the proceeds of the sale of these cigars be retained in Court. Decision made on 26th September 1941.LEX BORNEO POSER: A harmeless box of cigars? Enemy property? Did the Judge correctly apply the law by making a distinction between ‘enemy’ ambassadors living in neutral territory? Do you agree with the decision of the British Judge who decided to deprive the poor German Ambassador in the midst of a Russian winter in Moscow his much needed pleasure of smoking Shanghai cigars?

Do you have an interesting story about cases or suits that took place during or after World War II? Share your memories with LEX BORNEO by sms: 0198220778 or email: marceljude@msn.com