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COURT OF APPEAL In re JAMES (AN
INSOLVENT) (ATTORNEY-GENERAL INTERVENING) Authoritative
report at: [1977] Ch. 41 DATES: 1976 July 14, 15, 16, 19, 20, 21; Oct. 22 COUNSEL: David Sullivan Q.C. and Edward Evans Lombe for
the appellant brother of the insolvent. Louis Blom-Cooper Q.C., Peter Gibson and Christopher Bathurst for
the Attorney-General. Andrew Bateson Q.C. and Michael Crystal for the receiver. SOLICITORS: Kenneth Elliott & Rowe, Romford; Treasury
Solicitor; Charles Russell & Co JUDGES: Lord Denning M.R., Scarman and Geoffrey Lane
L.JJ. APPEAL from Mr. Registrar Hunt. October 22. The following judgments were read. LORD DENNING M.R. David Emlyn James is a lawyer who has
gone astray. He was a partner in a firm of five lawyers practising at Lasaka in
Zambia. The firm’s name was Ellis & Co. The names of the four
partners were: Green, Moxon, Quirk and Hadden. They sound as if they came
originally from England. The four say that David Emlyn James went off with a
sum of £160,000 belonging to the firm or its clients. He disappeared. But the
story goes that, with the money in his pocket, he gambolled round Europe and
came to rest for a while in England. He put these funds into safe hands here,
or, at any rate, into hands where he thought they were safe from his four
partners. Some of it in cash at a bank, some in shares and some in getting a
half-share in a house at Bromley. None of it, I suppose, in his own name, but
in the names of other persons, real or fictitious. Having tucked a lot of it
away, out of reach, as he thought, he went back to Africa. But he did not dare
show up in Zambia again. Instead he went next door to Rhodesia. There, we are
told, he got into trouble again. But a different kind of trouble. It was
something to do with pornography. He was arrested and put into the remand
prison at Salisbury, Rhodesia. It was there that the other four partners found him. They were
anxious to bring him to book, if they could: or, at any rate, to get some of
their money back. Until he was found, they could do nothing. And, when he was
found, they had to go against him in Rhodesia. That was the only place in which
they could get redress. It is a universal rule that, to proceed against a man,
you must go against him in the place where he is personally present. So they
issued a writ against him in Rhodesia and it was served on him in the prison at
Salisbury. He put in a so-called defence, but it was no good. Judgment was
given against him for $214,351.18. When he did not pay, he was made bankrupt
under the insolvency laws of Rhodesia, and a trustee was appointed to collect
his assets. Now the assets of David James were in England. The trustees wanted
to collect them. So on April 16, 1974, the Chief Justice of Rhodesia, Sir Hugh
Beadle, issued a letter of request asking the English courts to help [*59] in collecting
them. Following that request, an application was made to the High Court of
Justice here in England. It was served on David James in the prison in
Rhodesia. In reply he wrote a long letter to the registrar in bankruptcy here
in England. In it he said: “I am not prepared to collaborate
with those seeking to deprive me of the few assets of which I stand possessed
outside Zambia, but this must not be construed as in any way challenging the
status of the High Court of Rhodesia… As your granting of the
application would be tantamount to the English courts accepting the validity of
the High Court of Rhodesia and is almost certain to be supported by the
plaintiffs in other countries of the world, I am prepared to waive any
illegality in the constitution of the High Court of Rhodesia so far as this may
affect me.” In short, David James himself took no objection to the English
court exercising jurisdiction in the matter. On October 11, 1974, the registrar in bankruptcy acted on the
letters of request. He appointed a chartered accountant here in England as a
receiver to get in the assets of David James here, sell them and remit the
proceeds to the trustee in Rhodesia. The English receiver was, however, a good deal in the dark. He did
not know just what David James had done with the money or property. He did not
know in whose names it stood. He required much more information before he could
do anything effective. David James by this time had been released from the
prison in Rhodesia. He had gone underground somewhere or other. He had
disappeared again without trace. But there was one man who might know a good
deal. It was his brother Geoffrey James who was living in the house at Bromley,
in which David James was said to have a half share. So the English receiver
sought to get information from him. The brother Geoffrey was not willing to
give it voluntarily. So the English receiver issued a summons against him. He
summoned the brother Geoffrey James to attend before the registrar in
bankruptcy to give evidence and to produce any material relating to David James
or his dealings. Geoffrey James objected. He took the point which David James had
earlier declined to take. He said that the High Court in Rhodesia was an
illegal court — that it was the instrument of an illegal regime
— and that the English courts should not recognise it or anything that
it did. In particular, it should give it no help whatever to collect the assets
of David James. The registrar in bankruptcy (Mr. Registrar Hunt) overruled this
objection. So had another registrar, Mr. Registrar Parbury, in a similar case
in 1969. The registrar ordered Geoffrey James to attend to give information.
But Geoffrey James still objected. He entered a notice of appeal to this court.
But before the appeal was heard, his solicitors told the Attorney-General about
it in case the Crown should be interested. The Attorney-General was so
interested that he applied to be made a party to the appeal. He was made a
party on condition that he paid the costs of the receiver. The appeal came before us last term. At the hearing it was the
Attorney-General, through his counsel, Mr. Blom-Cooper, who launched [*60] the main attack
on the Rhodesian courts. It was he who asked us to give no recognition whatever
to what the Rhodesian courts had done. He said that we should give no help
whatever to get in the money or property of David James — so as to
restore it to the rightful owners. It was, he said, in the interests of high
policy. All I would say about his argument is this. If it be in the interests
of high policy, it is not in the interests of justice. I see no justice
whatever in letting David James get away with his ill-gotten gains and letting
the rightful owners go away empty-handed Section 122
“The High Court, the county courts,
the courts having jurisdiction in bankruptcy in Scotland and Ireland, and every
British court elsewhere having jurisdiction in bankruptcy or insolvency, and
the officers of those courts respectively, shall severally act in aid of and be
auxiliary to each other in all matters of bankruptcy, and an order of the court
seeking aid, with a request to another of the said courts, shall be deemed
sufficient to enable the latter court to exercise, in regard to the matters
directed by the order, such jurisdiction as either the court which made the
request, or the court to which the request is made, could exercise in regard to
similar matters within their respective jurisdictions.” On that section the question is whether the High Court of Rhodesia
at the material time — that is, in 1974, when it exercised its
jurisdiction in insolvency — was a “British court…
having jurisdiction in bankruptcy or insolvency.” In considering it, there is this complication. The various orders
in Rhodesia were made by different judges appointed at different times. The
first two orders (for judgment against David James and provisional
sequestration) were made on January 28, 1974, by Beck J., who was appointed
after the unilateral declaration of independence (U.D.I.). The next two orders
(for final sequestration and for letters of request to be issued) were made by
Goldin J., who was appointed before U.D.I. The letters of request themselves
were issued by the Chief Justice, Sir Hugh Beadle, who was appointed a judge in
1950 and Chief Justice in 1961, long before U.D.I. If those judges, in making their various orders, were all
exercising the jurisdiction of a “British court… having
jurisdiction in… insolvency,” then section 122 enabled the
High Court of Justice here in England to give its aid to collect the assets.
Otherwise not. The general principle We heard argument on the constitutional position last July. There
has since been a significant change. At that time there was an illegal regime
in control in Southern Rhodesia. It looked as if it would continue
indefinitely. The United Nations had imposed sanctions in the hope of bringing
the illegal regime to an end. These amounted to an economic [*61] blockade. We
were urged to impose a legal blockade as a counterpart of the economic
blockade. The outlook is now altered beyond measure. There is a reasonable
prospect that in the near future the illegal regime will come to an end. It
will be replaced by a lawful regime. There will be a new government under a new
constitution. It will be entitled to universal recognition. No longer will
Southern Rhodesia be a colony under the British Crown. It will be an
independent country. There will no longer be any need for an economic blockade.
Nor for any legal blockade. But this leaves us with the problem: What was the position during
the interregnum? That is, during the time when the illegal regime was in
control. That is, during the 11 years from 1965 to 1976. It started on November
11, 1965, when the white settlers of Southern Rhodesia made a unilateral
declaration of independence — U.D.I., as it is called. The white
settlers made no complaint against the lawful sovereign, the Queen of England.
They pledged their loyalty and allegiance to her. But they rebelled against her
ministers in Whitehall. They set up their own parliament instead of the
previous legislative assembly. They set up their own “officer
administering the government,” instead of the previous governor. They
appointed their own executive council, instead of the previous
governor’s council. But they left the judges undisturbed. They left
the judges still pledged under their oath of allegiance to the Queen: and under
their judicial oath well and truly to serve her in the office of a judge. They
left the courts to carry on with their daily tasks. They made emergency
regulations, of course. But, apart from these, they left the existing law as it
was. After all, they were as much concerned as anyone to see that law and order
were maintained. In this, too, they were supported by the lawful sovereign, the
Queen of England. On the very day of U.D.I., November 11, 1965, the Governor,
as the representative of the Queen herself, made this important announcement: “It is the duty of all citizens to
maintain law and order in this country and to carry on with their normal tasks.
This applies equally to the judiciary, the armed services, the police and the
public service.” That announcement has never been altered, countermanded or
superseded. The citizens of Southern Rhodesia obeyed it. They carried on with
their normal tasks. So did the police. So did the judges. So did the officers
of the courts. It was absolutely necessary for them to do it. Otherwise there
would be utter chaos. I would ask this question: if the judges and officers of the
courts had not carried on with their normal tasks, what was to happen to the
criminal law? Were murderers to go free? Were thieves to go unpunished? And, I
would add, what was to happen to the civil law? Were debtors absolved from
payment? Were contracts no longer binding? Or wrongdoers not to be compelled to
make compensation? If law and order were to be maintained, it was imperative
that the judges should continue in office and that the courts should continue
to function. That was, I am sure, the intendment of the lawful sovereign, the
Queen of England, as well as of the unlawful regime itself. [*62] Not only was the Queen’s intendment shown by the
announcement. It was also shown by an Order made by the Queen in Council on
November 16, 1965, five days after U.D.I.: Southern Rhodesia Constitution Order
1965 (S.I. 1965 No. 1952). It made it clear that during the interregnum the new
parliament in Rhodesia could make no new laws or regulations, nor could the new
ministers exercise any executive authority. Whatever the new parliament did, or
the new ministers did, was void and of no effect. But the significant thing is
that under the Order in Council the existing laws were left untouched. None of
the judges was dismissed. No court was disbanded. The implication is
irresistible that the lawful sovereign authorised the judges to continue in
office and the courts to continue to function — just as the Governor
had told them it was their duty to do. It intended them to enforce the criminal law, as they had
theretofore done, that is, to clear the innocent and convict and punish the
guilty. It intended them to enforce the civil law, that is, to see that
contracts were fulfilled and to award damages for wrongdoing. It intended them
to enforce the law of insolvency as it had existed ever since 1923. In so doing, the lawful sovereign was only doing what it was its
duty to do. As I understand it, it is the duty of the lawful sovereign of a
country to see that law and order is maintained therein. It is a duty owed by
the lawful sovereign to every one of its subjects resident in the country. That
duty is not dispelled by some of its subjects setting up an unlawful regime
there. The duty remains towards the others. In this case the lawful sovereign
did all it could to fulfil that duty. It told the judges and officers of the
courts to carry on with their normal tasks. It is true, of course, that during
the interregnum the lawful sovereign did not pay the salaries of the judges or
officers of the courts. That was left to the unlawful regime. And, when any of
the judges or officers retired, the lawful sovereign did not appoint a
successor to fill the vacancy. That, too, was left to the unlawful regime. But
that did not mean that the lawful sovereign disowned them or deprived them of
their authority to act on its behalf. It only meant that the lawful sovereign
accepted the realities of the situation. The Crown was still under the
fundamental duty of maintaining law and order: and it did it in the only way
open to it, namely, by authorising the judges and officers of the court, so
paid and so appointed, both new and old, to carry on with their normal task of
enforcing the law. If such authority was not given expressly, it is at least to be
implied. Hugo Grotius himself said as much. When a lawful sovereign is ousted
for the time being by a usurper, the lawful sovereign still remains under a duty
to do all he can to preserve law and order within the territory: and, as he can
no longer do it himself, he is held to give an implied mandate to his subjects
to do what is necessary for the maintenance of law and order rather than expose
them to all the disorders of anarchy: see his book on War and Peace (De Jure
Belli ac Pacis, Bk. I, Ch. IV, Sect. XV) as translated in 1738 (1st ed., p.
121). This principle was said by Lord Pearce to be “sound common
sense”: Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645,
736. It was looked on with favour by Lord Wilberforce in Carl Zeiss Stiftung
v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853, 954; [*63] and by Lord Reid in Madzimbamuto
v. Lardner-Burke [1969] 1 A.C. 645, 729; or, at any rate, not with disfavour. If this principle is correct — as I believe it to be
— it follows inexorably that during the interregnum the courts of
justice in Southern Rhodesia were lawfully exercising jurisdiction over matters
coming before them — under a mandate, implied in that behalf, from the
lawful sovereign — provided always that they applied to those matters
the laws as they existed on November 11, 1965, the date of U.D.I., and not the
laws passed by the unlawful regime. The orders in this case were all made by the courts of Rhodesia in
1974 under the law of insolvency as it had existed in Rhodesia ever since 1923.
They applied the law of insolvency as it had existed before U.D.I. They did not
apply any laws made by the unlawful regime. So the courts were, in my opinion,
lawfully exercising jurisdiction under an implied mandate in that behalf from
the lawful sovereign. “British court” There remains the question: were the courts, so exercising
jurisdiction in insolvency, “British courts” within section
122 of the Act of 1914? The word “British” is often used in
statutes. Usually it is defined. Sir Kenneth Roberts-Wray says in his book on
Commonwealth and Colonial Law (1966), pp. 69-72: “It is a word which
should not be used by the draftsmen except with a definition or in a well
understood connection.” But it is not defined at all in the Bankruptcy
Act 1914. It seems to me that the word “British” in that Act
was there used in the same sense as it was often used at that time in the
phrase “British Empire,” see Roberts-Wray, op. cit., pp.
19-22. It meant any part of Her Majesty’s dominions outside Great
Britain and Ireland. It included colonies and protectorates. It included, and
includes, Southern Rhodesia. Despite the presence of an unlawful regime,
Southern Rhodesia is still, in the eyes of English law, a British colony: and
the lawful sovereign is still the Queen of England. But are the courts there “British courts”? They are
certainly “courts.” The term “court” means
that place where justice is judicially administered: see Halsbury’s
Laws of England, 4th ed., vol. 10 (1975), para. 701. Undoubtedly, the courts in
Rhodesia are places where justice is judicially administered. To my mind the
decisive factor is that they are courts sitting in a British colony. They are
administering the laws of insolvency as enacted in the days of the lawful
sovereign and still in force with the authority of the lawful sovereign. When
properly administering those laws, they may properly be described as
“British courts.” Sir Hugh Beadle, the Chief Justice,
certainly thought so: because he issued letters of request under section 122
itself. My colleagues, however, think it quite inappropriate to regard the
courts there today as “British courts.” But, it is no more
inappropriate than it is to regard Rhodesia today as a “British
colony”: and that it certainly is, in the eyes of the law. So are the
courts “British courts.” Thus far have I considered the matter in principle. Now I must
turn to the cases. [*64] Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645. In 1966 after U.D.I. the unlawful regime made new emergency
regulations for the detention of subjects. Mr. Madzimbamuto was detained under
them. He went to the High Court in Rhodesia asking that court to hold that the
regulations were invalid. On January 29, 1968, that court held that they were
valid and that Mr. Madzimbamuto was lawfully detained under them. Mrs. Stella
Madzimbamuto appealed to the Privy Council. They allowed the appeal. They held
that the new regulations were invalid. Now these are the important points in the case. First, the Privy
Council entertained the appeal. They held that they had jurisdiction to do so
under section 71 (5) of the Constitution of Southern Rhodesia 1961 (the lawful
Constitution), as amended by the Constitution Amendment Act 1964, which said: “Any person aggrieved by any
determination of the appellate division of the High Court [of Southern
Rhodesia]… may appeal therefrom to Her Majesty in Council.” Secondly, the Privy Council in its formal decision declared: “… the determination of the
High Court of Southern Rhodesia with regard to the validity of emergency
regulations made in Southern Rhodesia since November 11, 1965, is erroneous and
that such regulations have no legal validity, force or effect.” That case decides beyond doubt that the court which sat in Salisbury,
Rhodesia, on January 29, 1968, calling itself “the High Court of
Rhodesia” was in strict constitutional law the High Court of
SouthernRhodesia sitting under the Constitution of 1961 — the lawful
constitution. Otherwise the Privy Council could not have entertained any appeal
from it. And the Privy Council themselves, in their declaration, with becoming
formality, described it as “the High Court of Southern
Rhodesia.” In coming to that decision, the Privy Council, in two places,
stated that the judges in Rhodesia considered themselves “sitting as
courts of the lawful sovereign, and not under the revolutionary constitution of
1965”: see pp. 718A and 725F. Those statements were the subject of
severe criticism a few weeks later by Sir Hugh Beadle and his colleagues, in Reg.
v. Ndhlovu (1968) (4) S.A. 515, 533. So much so that it would seem as though
the Privy Council were under a misapprehension on the point. But the
misapprehension does not mean that the decision of the Privy Council was
erroneous. To my mind, the status and the standing of a court within a country
depends on the correct constitutional law of that country. It does not depend
on what the judges sitting in that court say about it, or think about it. If these
judges sat at all as a court — giving orders and pronouncing judgments
— as they clearly did, they must have been sitting under the
Constitution of 1961. It is the only constitution under which they could
lawfully sit. At any rate in the eyes of the lawful sovereign. If they did not
sit under that constitution, they did not sit at all. And their judgments and
orders would, every one of them, be null and void and no one need obey them.
And that, as Grotius said, would lead to anarchy. [*65] Reg. v. Ndhlovu (1968) (4) S.A. 515. In September 1968 the appellate division of the High Court of
Rhodesia gave a judgment on a preliminary point of law. It was whether a new
Act passed by the unlawful regime — creating a new offence —
was valid, or not. They said that it was valid. That decision was quite
contrary to the ruling of the Privy Council in Madzimbamuto’s case [1969] 1 A.C.
645. In order to reach that conclusion, the High Court of Rhodesia held that
the unlawful regime “is now the de jure government and the 1965
Constitution the only valid constitution.” That decision was wrong. It
was wrong according to the correct Constitution law of Rhodesia, as laid down
by the Privy Council in the Madzimbamuto case. But that wrong decision does not
alter the status and standing of the court in constitutional law. Adams v. Adams (Attorney-General intervening) [1971] P. 188. On December 29, 1965, that is, after U.D.I., an Englishwoman in
Rhodesia married a man domiciled there. The marriage was valid under the law as
existing before U.D.I. In 1970 after U.D.I. she went to the High Court of
Rhodesia and obtained a divorce. This was also valid under the law existing
before U.D.I. Neither the marriage nor the divorce were dependent in any way on
any new law made by the unlawful regime. The divorce was effected by the High
Court as a part of the normal task of administering the existing law. I should
have thought for myself that it was valid. The divorce was pronounced by a
competent court in the territory of the husband’s domicile. It should,
therefore, have been recognised in England. But Sir Jocelyn Simon P. held
otherwise. He held that it all depended on the date on which the judge of the
High Court was appointed a judge. If he was appointed before U.D.I., the
divorce would be valid and be recognised in England. But if he was appointed
after U.D.I., it was invalid and could not be recognised. In Adams v. Adams the judge in Rhodesia was Macaulay J. who had
been appointed since U.D.I. On that ground Sir Jocelyn Simon P. held that the
divorce could not be recognised in England. I am
afraid that I cannot agree with that decision. I cannot think it right that the
validity of a divorce should depend on which particular judge hears the case.
The decision, if correct, applies to any case coming before the High Court of
Rhodesia during the interregnum. It makes the validity depend on which
particular judge makes any particular order. That seems to me absurd. Not only
absurd, but quite unjust. When a person applies after U.D.I. to the court in
Rhodesia seeking justice, he cannot choose his judge. He cannot say whether his
case will come in front of a judge of that court who was appointed before
U.D.I. or a judge who was appointed afterwards. He may not even be able to find
out. At any rate, he cannot say “I will not have Beck J. — I
want Goldin J.” Simple justice demands that it should make no
difference. No matter by whom the man was appointed a judge, no matter at what
date he was appointed, he is sitting as a judge of the court and the order made
by him is an order of the High Court of Rhodesia. He sits in the seat of a
judge. [*66] He wears the
robes of a judge. He holds the office of a judge. Maybe he was not validly appointed.
But, still, he holds the office. It is the office that matters, not the
incumbent. I remember when I was first appointed a judge, a senior but
disappointed member of the Bar raised his hat to me, saying: “I raise
my hat, if not to you, at any rate to the office.” So long as the man
holds the office, and exercises it duly and in accordance with law, his orders
are not a nullity. If they are erroneous, they may be upset on appeal. But if
not erroneous they should be upheld. Such is the theme which runs through the
important case in the Supreme Court of Connecticut — The State v.
Carroll (1871) 38
Conn. 449; and the Court of Appeal in New Zealand in In re Aldridge (1893) 15 N.Z.L.R. 361. The point
is well put in the United States Supreme Court in Norton v. Shelby County (1886) 118 U.S. 425, 444-445: “Where an office exists under the
law, it matters not how the appointment of the incumbent is made, so far as the
validity of his acts are concerned. It is enough that he is clothed with the
insignia of the office, and exercises its powers and functions… The
official acts of such persons are recognised as valid on grounds of public
policy, and for the protection of those having official business to
transact.” In the light of these cases, I think that the decision of the
Court of Criminal Appeal in Rex v. Cronin (1940) 56 T.L.R. 457 was wrong. So was Adams
v. Adams [1971] P. 188. In holding Adams v. Adams to be wrongly
decided, I believe my opinion conforms to the intention of the lawful sovereign
of Rhodesia, the Queen of England: because in 1972 an Order in Council was made
(S.I. 1972 No. 1718) which said that a ceremony of marriage or divorce given in
Rhodesia should not be regarded as unlawful because the judge had been appointed
after U.D.I. I do not regard the Order in Council as any approval of the
decision in Adams v. Adams as being good law. It was only an acceptance
of it as an existing decision which needed rectifying. The rectification can
and should be given by this court, as well as by the Order in Council:
especially as there is a wider principle involved. Bilang v. Rigg [1972] N.Z.L.R. 954. In May 1969, after U.D.I., a man died in Rhodesia intestate. Under
the existing law (as it existed before U.D.I.) his estate went to his father
and mother in equal shares. The High Court of Rhodesia made an order appointing
an attorney in Bulawayo, Rhodesia, to be executor of his estate. It made a
grant of administration to that attorney. The order was made by a master of that
High Court who had been appointed in 1966 after U.D.I. The Rhodesian executor
then asked the Supreme Court in New Zealand to reseal the grant to enable the
attorney to collect the assets in New Zealand. It was objected that the
Rhodesian order was invalid because it had been made by a master appointed
after U.D.I. The Supreme Court of New Zealand overruled that objection. It
declined to follow Adams v. Adams [1971] P. 188. Henry J. gave reasons which
correspond to those I have given. He said [1972] N.Z.L.R. 954, 961: [*67] “It is sought to enforce the existing
law” (that is, existing at the date of U.D.I.) “on matters
which rise from day to day concerning the property of those citizens who are
unable to exercise such a right. To do so, I think,… is the presumed
intention of the United Kingdom Government….” The American cases There remained the cases in the courts of the United States, which
followed the unsuccessful rebellion of the southern states. They are referred
to in the judgments in the Madzimbamuto case [1969] 1 A.C. 645, 726-728,
733-735. The Privy Council in the Madzimbamuto case considered them
inapplicable: because at that time in Rhodesia the unlawful regime was still in
control: whereas in the United States the rebellion had ended. That is a
legitimate distinction: because as Lord Pearce said, at p. 733: “… during a rebellion it may
be harmful to grant any validity to an unlawful act, whereas, when the
rebellion has failed, such recognition may be innocuous.” In our present case, in the last few weeks hopes have arisen that
the rebellion in Rhodesia will come to an end. The economic blockade is to be
lifted. So also should the legal blockade be lifted. I see no reason why we
should not apply now the principle of the United States to the position in
Rhodesia during the interregnum. We should adopt the principle stated by the
Supreme Court of the United States in Texas v. White (1868) 7 Wallace 700,
733 (74 U.S.) quoted in Madzimbamuto’s case [1969] 1 A.C.
645, 727: “It
may be said, perhaps with sufficient accuracy, that acts necessary to peace and
good order among citizens, such for example, as acts sanctioning and protecting
marriage and the domestic relations, governing the course of descents,
regulating the conveyance and transfer of property, real and personal, and
providing remedies for injuries to person and estate, and other similar acts,
which would be valid if emanating from a lawful government, must be regarded in
general as valid when proceeding from an actual though unlawful
government.” That passage speaks of “acts necessary to peace and good
order among citizens.” Those acts certainly include the decisions and
orders of the courts of law. On this principle we should recognise the orders
of the Rhodesian courts applying pre-existing laws during the interregnum as
being valid, and give effect to them. Conclusion So, after all this long discourse, I would hold that during the
interregnum in Rhodesia, while there was an unlawful regime in control of the
legislative and executive branches of government, nevertheless the judicial
branch remained subject to the lawful sovereign, the Queen of England. The
country remained, in the eyes of the law, a British colony: and the courts
remained, in the eyes of the law, British courts. The Chief [*68] Justice of
Southern Rhodesia must have regarded his court as a British court when he
issued letters of request for aid to the High Court of Justice here in England:
for he relied on section 122 for the purpose. And the High Court here, in my
opinion, was quite right to assent to his request. It is one way in which
justice can be done between the parties. It is the only way. I would dismiss
the appeal. SCARMAN L.J. David Emlyn James is an insolvent
debtor, whose estate has been sequestrated by an order of the High Court of
Rhodesia made final on February 21, 1974. On April 8, 1974, a Mr. Wood was
appointed in Rhodesia as trustee of his estate. On April 16, 1974, Sir Hugh Beadle, Chief Justice of the High Court of Rhodesia, sought the aid of the English bankruptcy court, invoking section 122 of the Bankruptcy Act of 1914. On October 11, 1974, Mr. Registrar Hunt, acceding to Sir Hugh Beadle’s request and upon the application of the Rhodesian trustee, appointed Mr. Davies, an English chartered accountant, receiver of Mr. David James’ movable property in England. On December 5, 1974, on the application of the receiver under section 25 of the Bankruptcy Act 1914, Mr. Registrar Hunt ordered the issue of a summons to Mr. Geoffrey James, the brother of the debtor, to attend for examination. Mr. Geoffrey James seeks the discharge of the order. His application is made under section 108 (1) of the Bankruptcy Act 1914 which empowers the bankruptcy court to review, rescind, or vary any order made by it. On April 16, 1975, Mr. Registrar Hunt refused his application,
taking the view that the order appointing Mr. Davies as receiver was a proper
order inasmuch as it was made after the English bankruptcy court had acceded to
a request for aid by a British court having jurisdiction in bankruptcy and
that, accordingly, Mr. Davies was able to seek an order under section 25. Mr.
Geoffrey James appeals to this court. His notice of appeal was as long ago as
May 23, 1975. The events so far described did, somewhat surprisingly, escape the
notice of Her Majesty’s Government, though at all material times the
control of Rhodesia, a colony known to English law as Southern Rhodesia, was in
the hands of men who had unilaterally and illegally declared their independence
of the British Crown. However, on May 25, 1976, the Attorney-General obtained
leave of this court to be made a party to the appeal: and at the hearing of the
appeal he has submitted strongly that the English bankruptcy court had, and
has, no jurisdiction — under section 122 of the Bankruptcy Act 1914 or
at all — to act in aid of the High Court of Rhodesia. It is to be
noted that Mr. Registrar Hunt’s decision of October 11, 1974, was not
the first occasion on which the English bankruptcy court has acted in aid of
the High Court of Rhodesia. Mr. Registrar Parbury has done likewise in another
case. Before this court the following parties are represented and have
made submissions: the Attorney-General and Mr. Geoffrey James for allowing the
appeal and rescinding the order for the examination of Mr. Geoffrey James; the
receiver for dismissing the appeal and upholding the registrar’s order
for his examination. The debtor, Mr. David James, has taken no part in the
proceedings. [*69] The argument has ranged over a wide field of constitutional law.
But as I see it, the appeal turns upon a short question of the interpretation
of section 122 of the Bankruptcy Act 1914. The crucial question is the meaning
to be given to “British court” where that term is used in the
section. In Rhodesia law and fact are at variance. By law the territory is
the British Colony of Southern Rhodesia enjoying a constitution granted by the
Queen in Parliament: see the Constitution of Southern Rhodesia 1961 (Annex to
S.I. 1961 No. 2314). In fact, those in control of the territory have, at least
for the time being, excluded the power and authority of the British Crown. The
revolution (for that is what it is) began on November 11, 1965, with a
unilateral declaration of independence by the ministers then in office under
the lawful Constitution of 1961. Notwithstanding recent events to which Lord
Denning M.R. has referred, the revolution continues. Faced with U.D.I., Her
Majesty has taken executive action and Parliament has approved legislative
action, the combined effect of which has been to suspend certain provisions of
the Constitution of 1961: see the Southern Rhodesia Act 1965, and orders made
thereunder. When U.D.I. was declared, the Governor dismissed the ministers
then in office but called upon the judiciary, the armed services, the police
and the public service to carry on with their normal tasks. Undoubtedly the
High Court of Southern Rhodesia, established by law under the lawful
Constitution of 1961, survived U.D.I.: and, as an institution it still exists
on paper. Faced with the fact of revolution in a colony thousands of miles away
from Great Britain, and landlocked, the British Crown did not resort to armed
force in an attempt to reestablish its authority. Instead, it has collaborated
in international action designed to put pressure on the colony to end the
revolution, and has backed this up with legal action. By an Order in Council
made on November 16, 1965 (S.I. 1965 No. 1952) the legislative and executive
authority conferred on the colonists by the Constitution of 1961 was suspended.
They could make no new laws: the men in de facto control of the government
could exercise no lawful authority. But the court system and the existing laws
were left in being. This is still the legal position today. English law,
therefore, recognises the continued existence in the territory of the High
Court of Southern Rhodesia. So much for theory. Now for the facts. Since 1965 the white
settlers have governed the colony, refusing to recognise any executive or
legislative authority emanating from outside Rhodesia. In 1965 the colonists
introduced by local legislative action a constitution (known as the 1965
constitution). This constitution purported to establish a High Court of
Rhodesia. It was, of course, an unlawful constitution. Nevertheless they
governed themselves according to its terms: and the courts of the territory
have recognised it. Whatever the legal position, the fact is that the High
Court of the territory has since 1965 administered justice as the High Court of
Rhodesia established under the 1965 constitution. It is true that in 1969 the
Privy Council in Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645,
entertained an appeal from the High Court of Rhodesia, treating it as the High
Court of Southern Rhodesia. They [*70] appear to have done so because, as they saw
it, the judges in the territory considered themselves to be sitting as “courts
of the lawful Sovereign, and not under the revolutionary constitution of
1965”: see the references at pp. 718 and 725. It is to be noted that the 1965 constitution, though unlawful, did
recognise the sovereignty of the British Crown: it was, therefore, possible to
find as a fact that the courts, whatever they said themselves about the source
of their jurisdiction, were the courts established under the lawful
Constitution of 1961. But since 1969 the revolution has become more complete,
and the rejection of the authority of Queen and Parliament total. First, Sir
Hugh Beadle, sitting judicially in the Rhodesian capital, Salisbury, in Reg.
v. Ndhlovu (1968) (4) S.A. 515, 533, declared that it was now legally
impossible for the courts to sit in Rhodesia under the Constitution of 1961.
Since Ndhlovu’s case, which it is clear has been accepted by all those
who continue to administer justice in the territory, it is no longer possible
to say, as the Privy Council said of an earlier period, that the judges do not
consider themselves as sitting under the revolutionary constitution. The truth
is that they do. But that is not all. The 1965 constitution has been scrapped.
In 1969 a new republican constitution eliminating totally the power and authority
of the British Crown was introduced. If it was possible to say that, as the
Queen was recognised under the 1965 constitution to be the lawful sovereign,
the courts of the territory were still her courts, that is British courts,
since the promulgation of the republican constitution of 1969 this has not been
possible. In 1974 — the year that matters in this case — the
Queen and the British Parliament, whatever their legal powers, were effectually
excluded from exercising any authority in the territory. Power, including
judicial power, was exercised under a constitution which did not recognise the
existence of the British connection. By 1974, therefore, the break between law and fact was total. The
basis of the judgment of Lord Denning M.R., as I understand it, is that justice
requires a reconciliation at least to the extent that the courts in England
will recognise the judicial acts of the courts in Rhodesia so that the normal
tasks of maintaining law and order in the colony — tasks which in law
must certainly continue to be the responsibility of the British Crown
— may be effectually accomplished. He invokes the doctrine of
recognition of the de facto judge, and the doctrine of implied mandate or
necessity. I agree with much of the thinking that lies behind his judgment. I
do think that in an appropriate case our courts will recognise the validity of
judicial acts, even though they be the acts of a judge not lawfully appointed
or derive their authority from an unlawful government. But it is a fallacy to
conclude that, because in certain circumstances our courts would recognise as
valid the judicial acts of an unlawful court or a de facto judge, therefore the
court thus recognised is a British court. In my judgment these doctrines do not
solve the question raised by this appeal. That question is simply: Was the High
Court of Rhodesia in 1974 a British court? To that question I now turn. On April 16, 1974, Sir Hugh Beadle, asserting himself to be
“Chief Justice of the High Court of Rhodesia” sought the aid
of “The English [*71] Bankruptcy Court, The High Court of Justice,
London,” invoking section 122 of the Bankruptcy Act 1914. There is no
British territory bearing the name Rhodesia, and no British court entitled the
High Court of Rhodesia. There is a British Colony of Southern Rhodesia, and
there is a High Court of Southern Rhodesia, which is a British court. Had the omission of the word “Southern” from Sir
Hugh Beadle’s written request been shown to be a slip, it could have
been corrected. But it was no slip. The evidence, to which I have already
referred, and which has been received without objection by this court, is
clear: at the time he made his request, Sir Hugh, though he remained the Chief
Justice of the High Court of Southern Rhodesia, was not acting in that
capacity. He was, as he said he was, acting as Chief Justice of the High Court
of Rhodesia. That is a court set up by a body of men who have severed the
British connection and under the terms of a constitutional document neither
authorised nor recognised by the British Crown. Section 122 includes
“every British court… having jurisdiction in bankruptcy or
insolvency.” I find it hard to think of any greater legal absurdity
than to treat as British an institution set up by men who, without the consent
of the Queen in Parliament, claim by their own constitutional document to have
excluded from the territory which de facto they control the power and authority
of Her Majesty. The High Court of Rhodesia is such an institution: See Chapter
IV of the constitutional document known as the Constitution of Rhodesia 1969,
which establishes in the territory known to British law as Southern Rhodesia a
state called Rhodesia, with a republican form of government and a president as
head of state. In the course of his very concise and clear judgment Mr. Registrar
Hunt said: “It is accepted by both sides that the High Court
of Rhodesia is, within the meaning of section 122, a ‘British court
having jurisdiction in bankruptcy or insolvency.’” If that concession were binding upon this court, I would reach the
same conclusion as Mr. Registrar Hunt did. But since the point is one of
jurisdiction, it is not. Moreover on May 24, 1976, the Attorney-General sought
and obtained from this court an order that he be made a party to the appeal.
The Attorney-General, by the evidence which he has led, which includes a
certificate from Her Majesty’s Secretary of State for Foreign and Commonwealth
Affairs to the effect that Her Majesty’s Government does not recognise
Southern Rhodesia (or Rhodesia) as a state either de facto or de jure, and by
the oral submissions made on his behalf, has plainly and unconditionally
asserted that in the view of Her Majesty’s Government the High Court
of Rhodesia is not a British court. Of course, neither the Secretary of State’s certificate,
nor the Attorney-General’s submissions, can compel the court to an
interpretation of statutory words which it believes to be false: and it remains
the duty of the court to construe the statute. But in a matter as political as
the status of territories overseas our courts have always attached [*72] importance to
information obtained from a Secretary of State or the Attorney-General: see for
example, Duff Development Co. Ltd. v. Kelantan Government [1924] A.C. 797. Such
information is helpful and relevant in a case such as the present. We must,
therefore, disregard the concession before Mr. Registrar Hunt — one to
which assuredly neither Her Majesty’s Government nor the
Attorney-General was a party. Mr.
Bateson for the respondent took two points on the construction of the section.
He submitted that on its true construction it does not require the court from
which aid is sought to look beyond the order and the request of the court
seeking its aid: in particular, it is not the court’s duty to
investigate whether the court seeking aid is constitutionally a British court.
Secondly, he submitted that the words “British court” mean a
court situate in British territory, and therefore include a court situate in a
British colony, whether or not there is a state of revolution or de facto loss
of British control in the colony. The first point fails, in my judgment, because it conflicts with
the general principle that a court may not act in excess of its jurisdiction.
As I read the section, it applies only to British courts: it could not be
invoked to enable, for instance, the English High Court to act in aid of a
foreign court, merely because it had notice of an order and a request for aid.
The High Court must, in my judgment, satisfy itself that it has jurisdiction
before acting under the section. The second point fails because, as it seems to me, the section is
concerned not with geography but with courts. It does not matter where the
court is, provided it is a British court. Inevitably one is driven to consider
the constitution of the court. The section speaks of a “British court.” The dictionary meaning (I take it from the Shorter Oxford
English Dictionary, 3rd ed. (1944), p. 223) of British is “of or belonging
to Great Britain or its inhabitants.” In 1604 King James I was
proclaimed “King of Great Britain,” and that name was by a
British statute adopted for the United Kingdom in 1707: see the Act of Union,
article 1. While I can accept that the High Court of Rhodesia is a
“court” — for, as Coke (Co. Litt. vol. 1, 58a)
remarked, “a court is a place where justice is judicially
administered” — I am not prepared to interpret a statute of
the British Parliament as including within the category
“British” a court which in no way appertains to, or
recognises, the authority of the British sovereign in the territory where it
administers justice, and which has been established by a constitution
introduced in defiance of the Queen in Parliament. In my judgment the High
Court of Rhodesia is not a British court: section 122 is not available to it;
nor has the English court jurisdiction to aid it under the section. Taking the view that I do of the meaning of section 122, I find it
unnecessary to consider Sir Jocelyn Simon’s reasoning in Adams v.
Adams
[1971] P. 188. In my judgment, it is immaterial whether the Rhodesian judges
were appointed before or after U.D.I. The court whose jurisdiction they were
exercising in 1974 was not a British court, but one established by persons who
had cast off their allegiance to the British Crown. I think the High Court of
Rhodesia was and is a court: but not a British one. [*73] I would allow the appeal, rescind the order under section 25 and
declare the order made in aid of the Rhodesian court one which the English
bankruptcy court had no jurisdiction to make. GEOFFREY LANE L.J. David Emlyn James was one member of a
partnership in Zambia. He incurred debts totalling some £160,000 to his
fellow-partners, who obtained judgments for that sum against him in the courts
of Southern Rhodesia. It has proved difficult to trace the whereabouts of the
debtor’s assets, and the creditors have had to go to great lengths to
try and recover at least some of the money to which they are undoubtedly
entitled. Geoffrey James is the brother of the debtor and resides in the United
Kingdom. The creditors believe that he is in a position to help them trace some
of the assets. They therefore took steps in the courts of Southern Rhodesia to
enlist the aid of the bankruptcy court in this country to compel the brother to
provide information. As a result Mr. Registrar Hunt on October 11, 1974, appointed John
Davies, a chartered accountant, as receiver of all the debtor’s
movable property in the United Kingdom with authority to take steps to obtain
possession of and to sell the same and remit the proceeds to the trustees of
the debtor’s estate in Southern Rhodesia. On December 5, 1974, the registrar made an order ex parte under section 25 of
the Act that the brother should appear to give evidence and produce documents
relating to the debtor’s assets in this country. In January 1975 there
was a motion to discharge that order under the provisions of section 108 of the
Act. A number of hearings ensued and eventually in April 1975 the registrar
dismissed the motion to discharge. Thus the order under section 25 was to
stand. Geoffrey James now appeals against that refusal by the registrar
to discharge his order of October 11, 1974. The Attorney-General has elected to
intervene and appeared before this court through Mr. Blom-Cooper to lend his
support to the submission that the appeal should be allowed and the order
discharged. The argument, broadly speaking, is simply that the
registrar’s order was made without jurisdiction, for the following
reasons. First, it was Sounded on judicial acts by persons who had ceased to
bear allegiance to Her Majesty the Queen, the only lawful sovereign in the
Colony of Southern Rhodesia, and such acts should accordingly be ignored as
having no validity in Southern Rhodesia or the United Kingdom. Secondly, the
registrar purported to act under section 122 of the Bankruptcy Act 1914. The appellant contends, supported by Mr. Blom-Cooper, that the
court in Rhodesia issuing the request, as it did, could not properly be described
as a court at all and certainly not a “British court” in the
light of events in that country since 1965. This point was not taken before the
registrar. It goes, however, to jurisdiction and furthermore is advanced on
behalf of the Attorney-General who did not appear before the registrar. There
is accordingly no valid objection to its being raised in this appeal. Before
this court it has proved to be the chief, if not the only point in issue. If
the appellant is correct in that submission the whole foundation of the
registrar’s jurisdiction disappears. In order to understand the appellant’s contentions it is
necessary to [*74] have in mind the chronology of events. On November 11, 1965, the
Prime Minister of Southern Rhodesia and his ministers issued a declaration of
independence purporting to decree that the colony was thenceforward to be an
independent sovereign state and to promulgate a new constitution. On the same day under article 43 (1) of the Constitution of 1961
Her Majesty the Queen dismissed her ministers in Southern Rhodesia and
thereupon they ceased lawfully to administer the powers of their office. Also
on the same day the Governor issued a message to the people of Southern
Rhodesia informing them that the declaration of independence was
unconstitutional, that the prime minister and his ministers no longer held
office, and calling upon the people to refrain from assisting the illegal
regime. He added: “It
is the duty of all citizens to maintain law and order in this country and to
carry on with their normal tasks. This applies equally to the judiciary, the
armed services, the police and the public service.” The Governor remained in office until June 24, 1969, since when no
one has held the office. On November 16, 1965, that is, five days after U.D.I.,
the Southern Rhodesia Act 1965 was passed. The Southern Rhodesia Constitution
Order 1965 (S.I. 1965 No. 1952) made under authority of that Act amended the
Constitution of 1961 but specifically preserved it. That constitution still
exists. What have gone are the local executive and legislative powers. These
now rest in the Secretary of State. In particular Chapter V, which deals with
the judicature, remains intact. In short, there was a lawful constitution for Southern Rhodesia.
That is the Constitution of 1961 as amended in 1964. There was a High Court,
comprising a general and an appellate division, which operated under the
authority of the Queen. However, there was no lawful ministerial power in the
territory, nor had anyone in the territory any lawful power to legislate. The
regime in physical control of affairs was illegal and the 1965 constitution
which that regime purported to set up had no legal effect in English law either
here or in Southern Rhodesia. The Southern Rhodesia Constitution Order 1965
contained the following express provisions: section 2 (1): “It
is hereby declared for the avoidance of doubt that any instrument made or other
act done in purported promulgation of any Constitution for Southern Rhodesia
except as authorised by Act of Parliament is void and of no effect.” Section 6: “It
is hereby declared for the avoidance of doubt that any law made, business
transacted, step taken or function exercised in contravention of any
prohibition or restriction imposed by or under this Order is void and of no
effect.” The prime minister, the other ministers and the members of the
legislative assembly paid no regard to these orders. The assembly purported to
adopt a new constitution dispensing with the office of governor [*75]
and making alterations in the forms of
judicial appointment and the forms of judicial acts. The new forms of oath of
loyalty read as follows: “I…
do swear that I will, in accordance with the Constitution of Rhodesia, 1965, be
faithful and bear true allegiance to Her Majesty Queen Elizabeth, Queen of
Rhodesia, Her Heirs and Successors, and that I will be loyal to
Rhodesia….” The new judicial oath was as follows: “I…
do swear that I will, in accordance with the Constitution of Rhodesia, 1965,
well and truly serve our Sovereign Lady Queen Elizabeth, Queen of Rhodesia, in
the office of… and that I will respect and uphold the aforesaid
Constitution….” By section 128: “(1)
The High Court of Southern Rhodesia in existence immediately prior to the
appointed day shall be deemed to have been duly constituted as the High Court
of Rhodesia under this Constitution. (2) Every person who immediately prior to
the appointed day holds the office of Judge of the High Court shall, subject to
subsections (3) and (4) of this section, continue to hold the like office as if
he had been appointed thereto under the corresponding provisions of this
Constitution.” By subsection (3) it is provided that persons already holding
judicial office are deemed to have complied with the requirements as to the
taking of oaths on appointment. However, subsection (4) provides that such
existing judge might be required to state forthwith whether he accepts the 1965
constitution and “will” take the new oath of loyalty and
judicial oath, failing which he would cease to hold office. At that stage the existing judges were in a position of some
difficulty. On the one hand they had the words of the Governor exhorting them
to maintain law and order and to carry on with their normal tasks. On the other
hand it might be said that by continuing to act as judges under a regime which
might at any time require them to choose between taking an illegal oath and
dismissal they were aligning themselves with an illegal regime and against the
lawful authority of the Crown. In July 1968 came the decision of the Privy Council in Madzimbamuto
v. Lardner-Burke [1969] 1 A.C. 645. Their Lordships held, inter alia, that the
1965 constitution was void and of no effect. They assumed, at p. 718, that the
appellate division in Southern Rhodesia had never recognised the 1965
constitution and further assumed that the appellate division had when hearing
the Madzimbamuto case (1968) (2) S.A. 284, considered itself to be a court sitting
under the lawful Constitution of 1961. It is in the reaction of the Rhodesian
judges to that opinion of their Lordships that the solution of the present case
becomes clear. On September 13, 1968, judgment was delivered by the appellate
division of the High Court in Salisbury in Reg. v. Ndhlovu (1968) (4) S.A. 515.
The court consisted of Beadle C.J., Qunet J.P. and MacDonald J.A. Beadle C.J.
in a lengthy judgment made it clear that so far as he was concerned it was now
legally impossible for the courts in Rhodesia to sit [*76] as 1961 Constitution
courts “or for any public servant to continue to serve under that
constitution.” He goes on, at pp. 533-534: “…
With respect, I do not share Lord Pearce’s view on all he says of the
factual situation as it exists in Rhodesia today, because today the majority of
the judges do not still consider themselves as sitting as a court under the
1961 Constitution… The judge is simply forced into a position of
accepting the facts and the laws as they are, whether he likes them or not. He
has… simply been overtaken by events… Acceptance of a
situation and responsibility for that situation are two entirely different concepts.
And so it is with the 1961 Constitution. That constitution… is no
more. The judges, by taking cognisance of the fact that this is so, cannot
justly be accused of being in any way responsible for the change, nor can it be
implied that by accepting the fact of the change they approved of it…
The choice which faces a judge in Rhodesia today may be an agonising one, but
the choice itself is straightforward enough. It is simply this: Is it better to
remain and carry on with the peaceful task of protecting the fabric of society
and maintaining law and order, or is it better to adhere to the old 1961
Constitution and go with it even though ‘… this may cause
chaos…’? If a judge decides that it is better to maintain law
and order he will remain, but if he decides that because he was appointed under
the 1961 Constitution he should not continue to serve under another, then,
despite the resulting chaos, he will go.” And later he goes on, at p. 535: “In
the circumstances, if the judges carry on at all they can only do so by taking
cognisance of the fact that the present government is the lawful government and
the 1965 Constitution the only lawful constitution. On this alternative
approach this case is determined, therefore, by the judges deciding whether to
stay or go. If they decide to remain and carry on with their tasks, as I think
they should, they, because of the new situation in which they now find
themselves, can only remain as a court taking cognisance of the 1965 Constitution,
and as such a court they must arrive at the conclusion that the present
government is the only lawful government, that the 1965 Constitution is the
only lawful constitution….” It is worth reminding oneself, having read that extract, that the
“Declaration of Independence” of November 11, 1965, purported
to assert that Southern Rhodesia was no longer a Crown colony but was an
independent sovereign state. What then was the effect of the Chief Justice’s
pronouncements in Ndhlovu? It can be safely assumed that all the judges in
Southern Rhodesia, whenever they were appointed, would be well aware of what
the Chief Justice had said. If they agreed with his formulation of the
arguments they could either resign or carry on. If they carried on it was
professedly not as a British court but as a court of the so-called
“independent and sovereign state of Rhodesia.” If any judge
disagreed [*77] with what the Chief Justice said it was plainly for him to say
so. There is no evidence that any did. Therefore it seems plain to me that the judges in Southern
Rhodesia whether of the general or the appellate division after September 1968
were sitting, as they (expressly or impliedly) acknowledged to be the case, not
as a court under the lawful 1961/64 Constitution, but under the illegal 1965
Constitution. They were purporting to act as courts of a sovereign state
independent of the Crown and therefore independent of Britain. It is not
necessary to decide whether those “courts” can rightly be
described as courts at all in the eyes of the law in this country. What is
certain is that they are not British courts. This conclusion is reinforced by the fact that in 1969 a new
republican constitution for Rhodesia was enacted by the so-called
“Parliament of Rhodesia” and the so-called “Officer
Administering the Government.” Any judges continuing to sit thereafter
in the courts of the territory put their position beyond doubt. With great respect to Lord Denning M.R. I find it impossible to
accept the proposition that a judge who in measured and considered terms states
that he is sitting as a “Rhodesian” court under a
constitution avowedly in rebellion against the Queen is nevertheless sitting as
a British court. The doctrines of implied mandate and necessity do not, as I
see it, affect the question of whether the court can properly be called British
or not. For the reasons already advanced I do not find it necessary to
draw any distinction between the actions of judges in Rhodesia appointed before
U.D.I. and of those appointed after. As a matter of history the original
judgment against the debtor and the order for provisional sequestration were
pronounced by Beck J. appointed after U.D.I. The orders for final sequestration
and for issue of the letter of request were made by Goldin J. appointed before
U.D.I. The letters of request themselves were signed by Beadle C.J., also
appointed before U.D.I. I would respectfully agree with Sir Jocelyn Simon P.’s
judgment in Adams v. Adams (Attorney-General intervening) [1971] P. 188, in so
far as he declined to recognise the validity of the acts of any judge appointed
after U.D.I. because his appointment was ex hypothesi illegal and void. I find
myself in unhappy disagreement with that part of the President’s
judgment in which he says, at p. 216: “But,
apart from Greenfield J. and Macaulay J.,” (both post-U.D.I.
appointments) “the judges of the High Court of Rhodesia were all
validly appointed under the 1961/64 Constitution. In the eyes of English
law… they can only cease to be judges of the High Court of Rhodesia in
accordance with the machinery of the 1961/64 Constitution. A mere declaration
by a judge that he is not sitting under the 1961/64 Constitution does not
satisfy such machinery.” If a judge in Rhodesia says “I shall in future not sit in
the capacity to which I was appointed. I do not regard those who appointed me
to be any longer in legal or actual control of the country in which I am a
judge,” it seems to me difficult to hold that that judge is labouring
under a misapprehension and that despite everything he says he is in fact
exercising his powers in his original capacity unaltered by any declaration he
[*78] may have made.
The fact that he has not formally resigned, under the provisions of Chapter V
of the Constitution Amendment Act 1964, section 56A (2) seems to me to be
irrelevant when he is saying “That constitution is no more.” For these reasons, as well as those advanced by Scarman L.J., with
which I respectfully agree, I would allow this appeal. Appeal allowed. Order of registrar set aside. Appellant’s and respondent’s costs against
Attorney-General from date of intervention; otherwise no order as to costs. |