The Ministry of Rural Development, Fishery, Craft Industry and Environment of the Union of Comoros v Chan Leng Leng and another

Choo Han Teck J:

[2] The plaintiff is a department of the Government of the Union of Comoros and was the department in charge of issuing fishing permits to fish within Comoran territorial waters. The first defendant is the liquidator of the second defendant. The second defendant carried on fishing activities in Comoran waters. The plaintiff commenced legal proceedings in the Union of Comoros in 2005 after it discovered that the second defendant was fishing illegally in its waters. The plaintiff obtained judgment in the court of first instance for a sum of €3,298,000 on 15 November 2005. There is a dispute as to whether the judgment was properly obtained but the defendant’s appeal to the Court of Appeal of the Union of Comoros was dismissed on 17 March 2008. The second defendant went into voluntary liquidation on about 7 September 2011.

[3] On the judgment thus obtained, the plaintiff filed a proof of debt on 5 January 2012. The first defendant rejected the plaintiff’s proof of debt and consequently, the plaintiff commenced proceedings in Singapore by way of Originating Summons No 328 of 2012. The defendants applied for that Originating Summons action to be converted into a writ action. Their application was allowed, transforming Originating Summons No 328 of 2012 into this present suit.

[4] The defendants challenged the plaintiff’s claim on the ground that the claim could not be properly proved in that the judgment obtained was either improperly obtained or had wrongly cited the second defendant as the owner of the ships that were used for illegal fishing in Comoran waters. These are all disputes of fact.

[5] The second defendant’s alternative defence was that as a matter of law, our courts would not enforce the penal laws of Comoros. Mr Rajaram, counsel for the plaintiff, accepted that principle of law but he submitted that the plaintiff’s claim was not a claim for such enforcement. It was a claim for recovery of a judgment debt, which was an award for compensation to the Comoros government for illegal fishing.

[8] Whatever the ultimate merits might be, the procedure for every legal process must be followed to maintain the consistency that is required to establish a clear and useful precedent. The rule of law is a meaningless cry if the law can be sidestepped for the convenience of parties. This is not a case in which the courts exceptionally allow a deviation from the rules of procedure. The defendants’ claim of impecuniosity is not sufficient. First, the problems of the second defendant might be addressed by applying for a trial of a preliminary issue. In this instance, that would be a trial of the same issue raised by the second defendant, namely, that the plaintiff was seeking to enforce a penal law of a foreign country. The second defendant applied to strike out the claim instead. There are important differences between a striking out application and an application for a trial of a preliminary issue.

[9] In the former, the defendant applicant has to satisfy the court that the claim was frivolous or vexatious or discloses no cause of action. The defendants here had mistakenly believed that their alternative defence in law (enforcing penal law of Comoros) entitles them to strike out the plaintiff’s claim. The defence, even if on a point of law without involving facts, must still be considered by the trial judge. If the defendant wishes to move ahead for financial or other reasons, he can apply to have that defence heard as a preliminary issue. That means that a determination of that issue can be made by the trial judge without the interlocutory process (such as discovery), and will fully and finally determine the action.

[10] The second defendant’s alternative defence appears to be solely one of a question of law if not challenged; but Mr Rajaram denies that this was an enforcement of the penal laws of Comoros. The facts relating to the judgment in Comoros are therefore relevant, if not on the substantive merits then for the court to decide whether to dispose of the case on a point of law.