Van Hoogstraten v Low Lum Seng

• Jurisdiction: Malaysia
• Court: Obsolete Court (Malaysia)
• Judgment Date: 16 October 1939
• Docket Number: Case No. 16
• Date: 16 October 1939

Federated Malay States, Supreme Court.

Case No. 16

H. C. van Hoogstraten

and

Low Lum Seng.

War — Parties to — Protected States — Federated Malay States.

War — Effect on Enemy Aliens — The Rights to Sue — Enemy Alien Suing as Executor or Administrator.

Protectorates — Status of — Whether Automatically Involved in War of Protecting State — Federated Malay States — Alien Enemies — Locus standi of Alien Enemies in the Courts — The Right to Sue — Alien Enemies Suing as Executors or Administrators.

The Facts.—The plaintiff, a Dutch subject, obtained letters of administration and attorney for the father of the deceased, a German subject living in Germany. The deceased was one Ferdinand Volker, also a German national, who, at the time of his death, was living at Singapore. On September 30, 1938, in a collision between his motor-car and the defendant's lorry, Volker received injuries from which he died shortly after. In this action the plaintiff claimed damages, inter alia, in respect of loss of expectation of life. The action was commenced in March, 1939, and fixed for hearing on September 19, 1939. On September 11, 1939, after the outbreak of war between Great Britain and Germany, the defence was amended by the addition of a paragraph alleging that the plaintiff was an enemy alien and/or sued on behalf of enemy aliens. For the plaintiff it was argued that the State of Selangor where the action was brought, or the Federated Malay States generally, were not at war with Germany; or, alternatively, that if such a state of war existed, the plaintiff was not an alien enemy as defined by the English Common Law; or, alternatively, if the plaintiff was an alien enemy, or was coloured by the enemy character of his principal, still, as administrator of the estate of the deceased, he would, even at Common Law, be allowed to sue. Counsel for the plaintiff submitted further that there was no absolute rule banning an alien enemy from the courts, and that where it is in the interest of the State that the suit of an alien enemy should be allowed to continue, he should be permitted to do so. For the defendant it was submitted that no suit can be maintained by an alien enemy during the continuance of the state of war; that an alien enemy was “a subject of a State at war with the King who is not within the realm with the leave and licence of the Crown, and also a British subject who is resident of his own volition in enemy territory”; that a state of war existed between the...