[PROBATE, DIVORCE & ADMIRALTY DIVISION]

ADAMS v. ADAMS (ATTORNEY-GENERAL INTERVENING)

Husband and Wife - Divorce - Foreign decree, validity - Domicile, decree by court of - Judge appointed after U.D.I. by rebellious government in Rhodesia - Whether decree entitled to recognition.

International Law - Recognition - Crown colony - Territory under effective control of usurping government - Whether conception of de facto or de jure status applicable to judge appointed by usurping government - Southern Rhodesia.

Rhodesia - Constitution - Declaration of Independence - Divorce decree granted to wife domiciled in Rhodesia by judge appointed after U.D.I. - Whether decree entitled to recognition.

Law Reform - Whether necessary - Domicile - Outmoded rule that wife's domicile depends on that of husband.

In 1923, the territory known as Southern Rhodesia was annexed by the Crown and given the status of a colony. In 1961, the territory received a constitution by the Southern Rhodesia (Constitution) Order in Council, 1961. The provisions of that order dealing with the judicature were repealed and replaced by the Constitution Amendment Act, 1964, which was rendered necessary by the break-up of the Central African Federation. Under that constitution (the 1961/64 Constitution) judges of the High Court of Southern Rhodesia were appointed "by the Governor, on the advice of the Prime Minister" and a judge could not enter upon the duties of his office unless he had taken before the Governor or some person authorised by him an oath of allegiance to the Queen and the judicial oath in prescribed form, by which he promised to serve the Queen in his office.

On November 11, 1965, the Prime Minister of Southern Rhodesia and his colleagues issued a Declaration of Independence (U.D.I.), purporting to declare that Southern Rhodesia was no longer a Crown colony. On the same day, the Governor declared that the Declaration of Independence was unconstitutional and that the Prime Minister and his colleagues had ceased to hold office. The Prime Minister and his colleagues, however, disregarded their dismissal from office and the members of the legislative assembly disregarded their suspension and purported to adopt a new constitution ("the 1965 Constitution"). They replaced that constitution in 1969 by a new, republican constitution ("the 1969 Constitution").

On March 2, 1970, the Secretary of State for Foreign and Commonwealth Affairs stated in Parliament that those who continued to serve a régime which asserted illegally that Southern Rhodesia was a republic, like those appointed by the régime, could not be regarded as serving the Crown in Southern Rhodesia.

On July 21, 1970, the Secretary of State for Foreign and Commonwealth Affairs certified that the British Government did not recognise Southern Rhodesia (or Rhodesia) as a state, either de facto or de jure.

On April 9, 1970, a wife, an Englishwoman who had, on December 29, 1965, married in Southern Rhodesia a man who was domiciled there, was granted a decree of divorce in the High Court of Rhodesia by Macaulay J., who was

appointed a judge on November 2, 1968, under the 1965 Constitution.

The wife desired to remarry in England but could not obtain a marriage licence because the Registrar-General of Births, Deaths and Marriages would not recognise her Rhodesian divorce decree as a valid judgment of a lawful court. The wife therefore petitioned the court for a declaration that the Rhodesian decree was valid. She conceded that the 1961/64 Constitution was the only legally valid constitution, but contended that her decree should be recognised under the doctrine of "necessity," alternatively, that Macaulay J., though not a judge de jure, was a judge de facto, and that, as such, his judgments were entitled to recognition. The Attorney-General intervened in the suit and opposed the wife's contention:-

Held, dismissing the petition, that for a judgment to be recognised by the English courts, it must be pronounced by a court competent to pronounce it (1), according to our rules of private international law and (2), by its municipal law. The Rhodesian court satisfied the first condition, but in considering the second condition, which was crucial in the present case, the courts of Rhodesia must be taken to be correctly applying the law as laid down by the Queen in Parliament in the United Kingdom, and, in particular, the 1961/64 Constitution (post, p. 207G). The court would assume that Macaulay J. was personally qualified under the 1961/64 Constitution, but as he failed to comply with section 55 (5) which required him to be appointed by the Governor, or with section 54 (3) of the Constitution Amendment Act, 1964, which required him on his appointment to take the oath of allegiance and the judicial oath in the prescribed form before the Governor or some person authorised by him, he was not a judge de jure of the High Court of Rhodesia (post, p. 208G) and the wife's decree should not be accepted by the courts of Rhodesia as validly dissolving the marriage by their municipal law (post p. 214H). Further, although the doctrine of the validity of acts of de facto officers was part of English law, neither that nor the doctrine of "necessity" entitled the English court to accord recognition to the judicial acts of Macaulay J.

Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645; [1968] 3 W.L.R. 1229; [1968] 3 All E.R. 561, P.C. followed.

Per Sir Jocelyn Simon P. It would be a constitutional anomaly for our courts to recognise the validity of the acts of Macaulay J. as a de facto judge while the executive acts of those appointing him (which must include his very appointment) are refused recognition de facto by the executive here (post, p. 214F).

This case is yet one further illustration of the unsatisfactory basis of the divorce jurisdiction of the English court and of the now completely outmoded legal concept that the domicile of a married woman is dependent on that of her husband (post, p. 216E-F).

The Attorney-General has a right of intervention in a private suit wherever it may affect the prerogatives of the Crown, including its relations with foreign states, and also, at the invitation or with the permission of the court, where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court (post. p. 198A-B).

The following cases are referred to in the judgment:

Aldridge, In re (1897) 15 N.Z.L.R. 361.

Arantzazu Mendi, The [1939] A.C. 256; [1939] 1 All E.R. 719, H.L.(E.).

Bowman v. Secular Society Ltd. [1917] A.C. 406, H.L.(E.).

Duff Development Co. Ltd. v. Kelantan Government [1924] A.C. 797, H.L.(E.).

Engelke v. Musmann [1928] A.C. 433, H.L.(E.).

Harris v. Jays (1599) Cro.Eliz. 699.

Horn v. Lockhart (1873) 17 Wallace 570 (84 U.S.).

Indyka v. Indyka [1969] 1 A.C. 33; [1967] 3 W.L.R. 510; [1967] 2 All E.R. 689, H.L.(E.).

Knowles v. Luce (1580) Moo.K.B. 109.

Le Mesurier v. Le Mesurier [1895] A.C. 517, P.C.

Lord Advocate v. Jaffrey [1921] 1 A.C. 146, H.L.(Sc.).

Luther v. Borden (1849) 7 Howard 1 (48 U.S.)

Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645; [1968] 3 W.L.R. 1229; [1968] 3 All E.R. 561, P.C.

Mirehouse v. Rennell (1833) 1 Cl. & F. 527.

Ndhlovu v. The Queen (1968) (4) S.A. 515.

Norton v. Shelby County (1886) 118 U.S. 425.

Papadopoulos v. Papadopoulos [1930] P. 55.

Parker v. Kett (1701) 1 Ld.Raym. 658.

Parlement Belge, The (1879) 4 P.D. 129; (1880) 5 P.D. 197, C.A.

Practice Direction (Rhodesian Grants: Resealing) [1970] 1 W.L.R. 687; [1970] 1 All E.R. 1248.

Rex v. Bedford Level Corporation (1805) 6 East 356.

Rex v. Cronin [1940] 1 All E.R. 618, C.C.A.

Southern Rhodesia, In re [1919] A.C. 211, P.C.

State of Connecticut v. Carroll (1871) 38 Conn. 449; 9 Am. 409.

Travers v. Holley [1953] P. 246; [1953] 3 W.L.R. 507; [1953] 2 All E.R. 794, C.A.

The following additional cases were cited in argument:

Anisminic Ltd. v. Foreign Compensation Commission [1968] 2 Q.B. 862; [1967] 3 W.L.R. 382; [1967] 2 All E.R. 986, C.A.; [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; [1969] 1 All E.R. 208, H.L.(E.).

Attorney-General v. Pontypridd Waterworks Co. [1908] 1 Ch. 388.

Buckley v. Edwards [1892] A.C. 387, P.C.

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1965] Ch. 596; [1965] 2 W.L.R. 277; [1965] 1 All E.R. 300, C.A.; [1967] 1 A.C. 853; [1966] 3 W.L.R. 125; [1966] 2 All E.R. 536, H.L.(E.).

Castrique v. Imrie (1870) L.R. 4 H.L. 414, H.L.(E.).

Crane v. Director of Public Prosecutions [1921] 2 A.C. 299, H.L.(E.).

Frazer v. Walker [1967] 1 A.C. 569; [1967] 2 W.L.R. 411; [1967] 1 All E.R. 649, P.C.

Papadopoulos v. Papadopoulos [1936] P. 108.

Pemberton v. Hughes [1899] 1 Ch. 781, C.A.

Salvesen or Von Lorang v. Administrator of Austrian Property [1927] A.C. 641, H.L.(Sc.).

SUIT for declaratory judgment.

On December 29, 1965, the petitioning wife, Joanna Sylvia Adams, who was born and brought up in England, went through a ceremony of

marriage in Salisbury, Rhodesia, with the respondent husband, Raymond Thomas Every Adams, who had acquired a domicile of choice in Rhodesia. There was one child of the marriage, Robin Mary, who was born on March 5, 1967. In March, 1969, the wife left the husband and returned to England. She then instituted proceedings in Salisbury for the restoration of her conjugal rights and, failing compliance therewith, for divorce. On February 12, 1970, the suit came before Goldin J. in the General Division of the High Court of Rhodesia. Goldin J. had been appointed to the bench before November 11, 1965, the date of the Declaration of Independence (U.D.I.). The husband apparently put in no defence in the suit, although he appeared in person before the court. Goldin J. granted the wife a decree of restitution of conjugal rights and called upon the husband, in the event of non-compliance with that decree, to show cause why the court should not grant the wife a decree of divorce on April 9, 1970. The husband failed to comply with the order of February 12, with the result that on April 9, the matter came before Macaulay J., who had been appointed to the bench on November 2, 1968. Macaulay J. pronounced a decree of divorce, with costs, and made a custody and maintenance order in respect of the child. Thereafter, the wife wished to remarry in England, but the superintendent registrar of marriages, to whom application for a licence was made, refused, on the advice of the Registrar-General of Births, Deaths, and Marriages, to grant a licence, the Registrar-General taking the view that a divorce decree granted by a Rhodesian court, whether or not granted by a judge appointed before U.D.I., would not be recognised as a valid judgment of a lawful court.

The wife petitioned the court under R.S.C., Ord. 15, r. 16 and Ord. 112, r. 3 for a declaration that the marriage was validly dissolved by the decree of the High Court of Rhodesia dated April 9, 1970. The Attorney-General intervened in the suit. The husband took no part in the proceedings.

Michael Havers Q.C., Geoffrey Leach and T. Ellis-Lewis for the wife. The proceedings in the Rhodesian court should be regarded as being, in essence, a restitution suit, to which the divorce was merely a sequel consequent upon the husband's disobedience to the decree of restitution of conjugal rights granted by Goldin J. to the wife on February 12, 1970. As Goldin J. had been appointed a judge before U.D.I., there was no basis for challenging the validity of the decree made by him. If that decree were recognised the divorce decree could be regarded as ancillary to it and a matter of routine and equally entitled to recognition. Alternatively, the change in the wife's status brought about by the divorce should be recognised under the doctrine of necessity: see Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645.

It is conceded that the purported supplanting by the illegal régime of the 1961/64 Constitution and the purported adoption first of the 1965 Constitution and later of the 1969 Constitution are all invalid in English law. However, the divorce decree granted to the wife, being a matter of personal status and not a matter concerning the state, should not be affected by constitutional changes. It is therefore immaterial whether the judge who pronounced the divorce decree was appointed before or after U.D.I.

Considerations of natural justice require that this divorce decree should be recognised by this court so long as it is a decree which would have been valid if it had been pronounced before U.D.I. and relates to a branch of the law which has not been changed by U.D.I. and in which the only effect of U.D.I. is that the judge who pronounced the decree was not appointed in accordance with the 1961 Constitution.

The regulations made by the United Kingdom Parliament under the Southern Rhodesia Act, 1965, enabled the Secretary of State to approve or reject any post-U.D.I. appointment to the Rhodesian judiciary. The appointment of Macaulay J. was not questioned and should therefore be regarded as impliedly approved by the Secretary of State. This would entitle any order made by Macaulay J. to recognition.

If the argument on behalf of the Attorney-General were correct, it would mean that all civil marriages celebrated in Rhodesia since U.D.I. were invalid in the eyes of English law. Parliament could not have intended to produce that result. [Reference was made to Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147 and Buckley v. Edwards [1892] A.C. 387.]

Louis Blom-Cooper Q.C. and Gordon Slynn for the Attorney-General. The role of the Attorney-General in this suit is not to oppose the wife's prayer for relief but to assist the court in arriving at a legally correct decision. He views with no relish the application of a legal rule which might have the effect of denying recognition to a colonial divorce decree, simply on the ground that Her Majesty's Ministers in the colony whose courts have pronounced the decree are in rebellion against the Crown. But the Attorney-General sees it as his duty to place before the court the relevant law, even if the result of its application is to deny recognition to this or any other Rhodesian decree of divorce.

If the effect of the Rhodesian rebellion is to cause a number of persons to suffer the consequence that what the Rhodesian courts have done is a nullity, any injustice may well be short-lived. Section 40 (1) (b) of the Matrimonial Causes Act, 1965, is available to wives after three years of ordinary residence here. Moreover, if this court refuses to recognise a Rhodesian decree of divorce, it will be for the government and Parliament to consider what action, if any, is appropriate. [Reference was made to Attorney-General v. Pontypridd Waterworks Co. [1908] 1 Ch. 388.]

Recognition of foreign decrees of divorce

The normal principle of recognition of foreign divorce decrees, which includes decrees pronounced in dependent territories of the Crown, is that if such decrees are made by competent courts exercising jurisdiction on the basis of the parties' real and substantial connection with that foreign country, English courts will recognise them: Indyka v. Indyka [1969] 1 A.C. 33.

There has been some doubt whether English courts have power to deny recognition where either (1) the substance of the decree is in question, i.e., where the decree of procedural steps taken to obtain the decree contravene natural or substantial justice, or (2) where there has been a fraud on the court.

It is not altogether clear whether the court is bound to treat the decree as invalid, or whether the court has a discretion to refuse recognition.

In the absence of any contravention of natural justice or fraud an English

court is bound to recognise and give effect to foreign decrees, whatever the ground upon which the divorce was granted. But (1) the decree must relate to matters within the lawful control of the state under whose authority the court sits, i.e., there must at least be international jurisdiction (Pemberton v. Hughes [1899] 1 Ch. 781) and (2) the sovereign authority of the state must have conferred jurisdiction on the court to grant the decree: Castrique v. Imrie (1870) L.R. 4 H.L. 414, 429, 448. In other words, the court must have both international and municipal authority: see Papadopoulos v. Papadopoulos [1930] P. 55.

Marriage and divorce are not strictly res, but both have been treated as savouring of a res: per Lord Dunedin in Salvesen or Von Lorang v. Administrator of Austrian Property [1927] A.C. 641, 662. The rules relating to the recognition of judgments in rem therefore apply.

Issue before the court

The short point is whether the decree was the act of a court in Rhodesia. The court must be a court invested with jurisdiction by the sovereign authority, and the judge must be a validly appointed person to exercise the jurisdiction of a competent court. To answer this question it is necessary to examine the constitutional background of Rhodesia.

Constitutional status of Rhodesia at U.D.I.

Since 1923, Rhodesia has been a colony which the British Government and the United Kingdom Parliament has had responsibility for and jurisdiction over: see In re Southern Rhodesia [1919] A.C. 211; Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, 711.

In 1961, the Southern Rhodesia (Constitution) Order in Council, 1961, gave the colony a constitution. That constitution was fully reviewed in Madzimbamuto's case, except for chapter V, which dealt with the judicature. That chapter was repealed and replaced by the Constitution Amendment Act, 1964. Section 50 of that Act made provision for a High Court of Southern Rhodesia; section 54 dealt with the qualification of judges, and section 55 with their appointment: section 56A dealt with the tenure of office of the judges; section 56B laid down a code relating to their removal from office; section 56D provided that the law was that in force in Cape Colony on June 10, 1891, as subsequently modified.

Although extensive legislative powers were given to the colonial legislature there were extremely important limits placed upon those powers. In particular, there was no power to remove the governor or to withdraw the executive power in the state from the Crown. Although under the 1961 Constitution the powers of the Queen in Council to legislate were limited, the powers of the United Kingdom Parliament to legislate were in no way cut down. The Statute of Westminster 1931 does not apply to Rhodesia.

Constitutional events post-U.D.I.

On November 11, 1965, Mr. Smith and his colleagues issued a declaration of independence and a new constitution. Chapter VI of the new constitution was identical to chapter V of the 1961 Constitution.

On November 16, 1965, the Southern Rhodesia Act, 1965, was enacted by the U.K. Parliament.

The Southern Rhodesia (Constitution) Order, 1965, made under the authority of that Act, modified and amended the 1961 Constitution but it specifically preserved it. The effect of the Order of 1965 was to abolish the governor's council and the powers of the legislative assembly but leaving the substantial part of the 1961 Constitution intact. In particular, chapter V dealing with the judiciary remained untouched. Constitutionally there was a constitution for the territory - the 1961 Constitution - with a High Court, consisting of a General Division and an Appellate Division, functioning under the authority of the Queen. There was, however, no lawful ministerial system or legislative power in Rhodesia. The 1965 Constitution, introduced by a clearly illegal régime, had no legal force whatsoever in English law or Rhodesian law. Section 2 of the Colonial Laws Validity Act, 1865, makes the 1965 Constitution void as being repugnant to the 1961 Order.

Until the decision in Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, the majority of the judges in Rhodesia considered that they were continuing to sit under the 1961 Constitution. Macdonald J.A. stated that he was exercising his powers under the 1965 Constitution, but Beadle C.J. considered that he was sitting as a member of a de facto court, neither under the 1961 Constitution nor the 1965 Constitution. The other seven judges regarded themselves as Her Majesty's judges sitting under the 1961 Constitution, but asking themselves whether they could give effect to executive actions of rebel ministers.

So far as this court is concerned, the status of Rhodesia is not a question of policy or of fact to be determined by a certificate. There is no possibility for the British Government to "recognise" a "State of Rhodesia," since any such recognition would be contrary to an Act of Parliament. Paragraph (a) of the Secretary of State's certificate merely restates what Parliament has declared to be the law. Paragraphs (b) and (c) are legal, not policy, consequences of the law stated in paragraph (a). There is thus no room for the concepts of international law. If the word "recognition" in relation to the rebel régime were used to connote no more than the forming of a view whether or not persons exercising governmental power were also persons authorised to do so by the 1961 Constitution, i.e., were properly in office, there would be no harm. But that is not recognition in international law.

Madzimbamuto's case [1969] 1 A.C. 645 proceeded on the basis (1) that the High Court of Rhodesia was at that time lawfully constituted; (2) that the court had to apply Rhodesian law, which on constitutional matters included English law, together with the Act of 1965 and the 1965 Order in Council, (3) that the court was bound to apply the legislation of the United Kingdom Parliament, which precluded the application of any doctrine of necessity such as would give legal validity to the executive actions of a rebel minister: see per Lord Reid [1969] 1 A.C. 645, 730, 731. Lord Pearce, at p. 732, dissented on the basis that there was an implied mandate that acts done by those actually in control without lawful validity might be recognised if done in the interests of the orderly running of the state, peace, order and good government. Lord Reid, at p. 729, held that any such doctrine was overridden by the Order in Council.

As at the time of the Madzimbamuto decision, it was impossible under English or Rhodesian law for any post-U.D.I. "law" of the rebel régime to have any legal effect. The Appellate Division of the High Court of

Rhodesia was at that time still functioning as a court constituted under the 1961 Constitution.

By September 13, 1968, in Ndhlovu v. The Queen (1968) (4) S.A. 515, the judges had, however, materially changed the position. The Appellate Division held that the 1961 Constitution had been annulled by a change in the factual situation in Rhodesia. The judges purported not to act disloyally to the Queen, but they gave full effect to the 1965 Constitution and in reality acknowledged, by implication if not expressly, their adherence to the 1965 Constitution and regarded themselves as a 1965 Constitution court.

The status of the rebel régime

The recognition of governments is a function exercisable only by the Crown. Courts must defer to the Crown in this regard because court and Sovereign may not speak with different voices: The Arantzazu Mendi [1939] A.C. 256. If the court may not recognise a foreign government which the Crown refuses to recognise, a fortiori it may not recognise a rebel régime within Her Majesty's dominions.

It was suggested in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. [1967] 1 A.C. 853 that some acts of an unrecognised government might be recognised in an English court, but that possibility could not arise where an Act of Parliament and an Order in Council state in unmistakable terms that Her Majesty's courts must deny validity to the constitution to which the Rhodesian judges look for their authority, namely, the 1965 Constitution. And quite apart from the relevant U.K. legislation all judicial authority is against the recognition by a sovereign court of any act of a rebel régime within the sovereign's dominions.

General submission

The so-called decree granted to the wife by Macaulay J. was not the act of a court in Rhodesia. The judge, appointed under the 1965 Constitution, must have taken the oath under that instrument and hence could not have been sitting under the only lawful constitution for the colonial territory. Indeed, it would not matter which judge had pronounced the decree. Even if Beadle C.J., who was lawfully appointed under the 1961 Constitution had granted the decree it could not be recognised. There is no judge purporting to sit under the only lawful constitution for Rhodesia. In the result, an English court is precluded from recognising this divorce decree.

Michael Havers Q.C. in reply. It is immaterial whether the appointment of Macaulay J. was valid in English law since even if he were not a judge de jure he was a judge de facto and therefore his judicial acts were valid by the doctrine of necessity. That doctrine was expounded by Dixon J. in the Australian Legal Journal, Res Judicata, Vol. 1 (1940), pp. 285-292.

Louis Blom-Cooper Q.C. was invited by the court to make his submissions on the "de facto judge" issue, first raised by the wife's counsel in reply.

The doctrine that the court may, in certain circumstances, accept as valid the acts of a de facto officer has never been received into English law. If it had been, Rex v. Cronin [1940] 1 All E.R. 618 would have been decided differently. There, the appellant had been convicted at borough quarter sessions before D., who purported to act as deputy recorder by virtue of

an appointment under the hand of the recorder. D., being a solicitor and not a barrister, was ineligible to sit as a recorder, by virtue of section 166 (2) of the Municipal Corporations Act 1882. If ever there were a case for the application of the doctrine relied on by the wife, that was such a case. The Court of Criminal Appeal held, however, that the proceedings were void ab initio and the conviction was set aside. [Reference was made to Crane v. Director of Public Prosecutions [1921] 2 A.C. 299.]

Even if (contrary to the Attorney-General's submission) the doctrine of de facto officers does exist, it has fallen into desuetude. Even if it be only obsolescent or the court has power to revive it, the doctrine is wholly inapplicable in the instant case.

First, for the doctrine to apply at all, the de facto officer's acts cannot be validated if the circumstances giving rise to the legal defect are notorious: Rex v. Bedford Level Corporation (1805) 6 East 356, 368, 369. It is notorious (a) that the judges in Rhodesia have, since the Ndhlovu case (1968) (4) S.A. 515 at least, joined the rebellion and are no longer the judges lawfully appointed under the 1961 Constitution, and (b) that whatever the position may be regarding the judges appointed pre-UDI, Macaulay J. was appointed post-UDI by Mr. Dupont, a rebel minister, under an unlawful constitution.

Secondly, the de facto doctrine exists, if at all, as a matter of public policy and of necessity to protect the rights of individuals from the results of defects in governmental administration: see State of Connecticut v. Carroll (1871) 38 Conn. 449. [Reference was made to Frazer v. Walker [1967] 1 A.C. 569.] The doctrine of necessity cannot be applied to an act of rebellion, and, for similar reasons, the de facto doctrine cannot be applied here.

Thirdly, the doctrine cannot be applied, and (so far as the Attorney-General has been able to ascertain) has never been applied, so as to affect adversely the rights of the Sovereign. The validation of the judicial acts performed during the Commonwealth was effected by statute; see the Act for Confirmation of Judicial Proceedings 1660. The wording of that statute makes it clear that it was not declaratory of the common law. If the common law doctrine had extended to judicial acts affecting the sovereign, the Act of 1660 would have been a piece of eccentric supererogation.

Fourthly, it would be grotesque to apply the doctrine so as to accord recognition to official acts of the judiciary during a rebellion but not to recognise non-judicial official acts. The doctrine would apply, if at all, to quasi-judicial as well as judicial acts.

Fifthly, there can be no recognition by an English court of a judicial act of a de facto judge in a colonial court in the face of what the United Kingdom Parliament has laid down in the Southern Rhodesia Act 1965.

July 31. SIR JOCELYN SIMON P. read the following judgment.

The issue and its repercussions

By her petition dated April 29, 1970, the wife petitions the court under R.S.C., Ord. is. r. 16 and Ord. 112, r. 3 for a declaration that her marriage

to the respondent husband was validly dissolved by a purported decree of divorce of the High Court of Rhodesia dated April 9, 1970.

The wife wishes to remarry in this country. But the Registrar-General of Births, Deaths and Marriages, to whom the superintendent registrar of marriages looks for advice, has in turn been advised that the purported decree of divorce of April 9, 1970, would not be recognised by English law as validly terminating the marriage, with the result that in the eyes of English law the wife still remains married and cannot contract a fresh union in England. Since she wished to dispute this view of the law, she presented the petition to which I have referred.

The wife is not the only person similarly situated. I have been informed that since January 1, 1969, eight marriages have not been allowed to proceed in this country where a purported prior divorce had been pronounced in Rhodesia after November 11, 1965 (U.D.I.). Of these, two were pronounced before September 13, 1968, by Greenfield J. (appointed after U.D.I.). In six cases the decree was pronounced after September 13, 1968; five of them by Macaulay J. or Greenfield J. (both appointed after U.D.I.), one by a judge appointed before U.D.I.: Ndhlovu v. The Queen 1968 (4) S.A. 515. (The significance of this break-down will become apparent as I review the arguments.) There may, of course, be others who are uncertain of their status but who have not applied to a superintendent registrar of marriages.

The case therefore affects the personal lives of a number of people besides the wife. It also raises grave constitutional issues. I should have liked to have had more time for consideration of my judgment - particularly as an extremely important and difficult point emerged at a very late stage of the argument, so that it was not the subject of the extensive research and close scrutiny which counsel would otherwise have devoted to it. Nevertheless, we are now at the end of the term; and, having come to a conclusion, I feel that it would not be fair to the wife to keep her waiting for a judgment; and that it is better that I should deliver it now, with all its imperfections. The parties then have a judicial decision on which they can make plans or frame policy, or which they can, if so advised, test on appeal.

The Attorney-General's intervention

By letter dated May 21, 1970, the wife's solicitors wrote to the Queen's Proctor, giving notice of these proceedings, "in case you, as amicus curiae, would wish to be represented by counsel." They wrote a similar letter to the Attorney-General, "in case you wish to be represented by counsel." When the case originally came before me on June 15, 1970, counsel appeared for the Attorney-General and claimed a right of intervention on the ground that constitutional issues arose in which the Sovereign's interests might be affected.

In my view the Attorney-General has a right of intervention in a private suit whenever it may affect the prerogatives of the Crown, including its relations with foreign states (see Duff Development Co. Ltd. v. Kelantan Government [1924] A.C. 797, 802); and he certainly has in such circumstances a locus standi at the invitation of the court (The Parlement Belge

(1879) 4 P.D. 129, 130, 145, in which the Attorney-General appealed the instant decision, as reported at (1880) 5 P.D. 197) or with the leave of the court (Engelke v. Musmann [1928] A.C, 433, 435-437).

I think that the Attorney-General also has the right of intervention at the invitation or with the permission of the court where the suit raises any question of public policy on which the executive may have a view which it may desire to bring to the notice of the court. Public policy is a matter of which the courts take direct judicial cognisance, and they do not allow evidence on the point (cf. Duff Development Co. Led. v. Kelantan Government at p. 813 by Viscount Finlay, and at pp. 823-824 by Lord Sumner).

"Our state cannot speak with two voices ... the judiciary saying one thing, the executive another" said Lord Atkin in The Arantzazu Mendi [1939] A.C. 256, 264. (Though Lord Atkin was speaking of recognition of foreign sovereignty, his observation seems to me, in common sense, to be of general application in a unitary state in cases such as the instant one) of course, if clear law is expressly based on considerations of public policy the executive must accept it and them unless and until the law is changed by The Queen in Parliament. But where the law is doubtful or the considerations of public policy may be in dispute, the view of the executive may be of value to the courts - if only in indicating that this may be a matter better left for the direct determination of the constitutional sovereign, The Queen in Parliament. Several issues in the instant case turned on considerations of public policy.

Although in later stages of the instant case counsel for the Attorney-General claimed to be doing no more than drawing relevant legal considerations to the attention of the court, he intervened by wish as a party rather than be heard as amicus curiae; and I was left clearly under the impression that there were matters here, not merely affecting prerogative power in the narrower legal sense, but extending to matters of policy, on which the Crown wished to express a view. In saying this I must not be thought to be criticising the Attorney-General or his counsel in any way. on the contrary: it would be deplorable if, through the court's being left in ignorance, the state did appear to be speaking "with two voices."

I think mat the Attorney-General was also entitled to intervene with the leave of the court under section 44 of the Matrimonial Causes Act, 1965, though his counsel did not put his application or claim to intervene on that ground.

I would, in any event, have wished to hear argument on behalf of the Crown. Counsel for the wife expressed the preference that the Attorney-General should be an intervener, rather than merely address the court as amicus curiae. There seemed to me to be manifest advantages in having the Attorney-General a party, so that my judgment can, if so desired, be tested on appeal in all events. I therefore readily allowed the intervention of the Attorney-General, who is now a proper party to the suit. His counsel indicated that he would not in any event be asking that his costs should be paid, and was willing that this should be made a condition of his being allowed to intervene.

The personal background

The wife was born and brought up in England. In 1965 she went to what was then called Southern Rhodesia for a holiday, and stayed on, having obtained work as a riding instructress at livery stables kept by the husband. On December 29, 1965, she went through a ceremony of marriage with the husband in Salisbury. No question has been raised in these proceedings as to the validity of that marriage. From an affidavit sworn in the Rhodesian proceedings it would appear that the husband had a domicile of origin in Australia, but settled in Southern Rhodesia in 1949, and there acquired a domicile of choice. In another affidavit in the Rhodesian proceedings the wife averred simply that the husband was domiciled in Rhodesia. Neither of these averments was controverted. On March 5, 1967, the only child of the marriage, a daughter, Robin Mary, was born. By the end of 1968 the marriage was under strain, with adverse consequences to the wife's health. In November, 1968, the wife returned to this country on holiday. She was due to go back to Rhodesia in January, 1969. Just before the time when she was due to leave she received communications from the husband, asking her not to return and informing her that he had "found somebody else" and "did not want to go on with the marriage." Nevertheless, in the hope of saving her marriage, the wife did go back to Rhodesia about the middle of February 1969. But she was unsuccessful; and eventually the husband bought her and the child single air passages to London. The wife arrived in this country again on March 4, 1969, and she has been here ever since. She consulted solicitors in England, who instructed agents in Salisbury. In consequence, on December 5, 1969, a writ of summons issued against the husband on behalf of the wife claimed: (a) an order calling upon [the husband] to restore conjugal rights to [the wife], and, failing compliance therewith, (b) a decree of divorce; (c) custody of the child; (d) maintenance for the child; (e) costs. The husband apparently put in no defence and the wife was permitted to give her evidence by affidavit. On February 12, 1970, the suit came before Goldin J. in the General Division of the High Court of Rhodesia. Goldin J. had been appointed to the Bench before November 11, 1965 (U.D.I.). Counsel appeared for the wife, the husband appeared in person. The judge ordered:

"That a decree of restitution of conjugal rights be and it is hereby granted to the [wife]. That [the husband] return to or receive the [wife] on or before March 12, 1970, and, failing compliance therewith, to shew cause to this honourable court sitting at Salisbury on April 9, 1970:- Why a decree of divorce should not be granted, with costs [etc.]"

The husband apparently failed to comply with the decree and order of February 12, 1970, with the result that the matter came again before the General Division of the High Court of Rhodesia on April 9, 1970. The judge this time was Macaulay J., who had been appointed to the Bench on November 2, 1968, in circumstances that I shall describe in a moment. The wife was again represented by counsel, but this time the husband did not appear. Macaulay J. ordered: "That a decree of divorce be,

and is hereby, granted, with costs"; and he made a custody and maintenance order in respect of the child. I have been satisfied by expert evidence that the procedure that was followed in the case complied with the law of Rhodesia as it existed before November 11, 1965 (U.D.I.), and that, subject to the issue of the competence of the court, what was granted on April 9, 1970, was a final decree dissolving the marriage.

On the assumption that her marriage had been validly dissolved, the wife wished, as I have said, to remarry; but there followed the difficulties that I have mentioned with the superintendent registrar of marriages. The strain of the uncertainty of her position is affecting the wife adversely, and through her the child.

In the event of the non-recognition of the Rhodesian divorce decree, with the resulting subsistence in the eyes of English law of her marriage with the husband and her domicile in consequence remaining his, she will not be able to institute divorce proceedings against him in England until March 4, 1972: see Matrimonial Causes Act, 1965, s. 40 (1) (b).

The constitutional background

It was agreed that I could take as proved the constitutional history of Rhodesia as it was explained in In re Southern. Rhodesia [1919] A.C. 211 and Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645; and a number of other facts of a public nature were stated as agreed evidence from the Bar, or proved by documents submitted by consent. I need not go back beyond 1923, when the territory in question was annexed by the Crown and given the status of a colony. Its system of law was Roman-Dutch; but the nature of the sovereignty of The Queen in Parliament of the United Kingdom over a British colony must be determined by the constitutional law of the United Kingdom: Madzimbamuto's case at at p. 721.

In 1961, the territory received a constitution by the Southern Rhodesia (Constitution) Order in Council 1961. Save for chapter V, dealing with the judicature, it was extensively reviewed in Madzimbamuto's case. I need only remark that chapter I deals with the office of Governor, section 1 (1) reading:

"There shall be a Governor in and over the Colony of Southern Rhodesia who shall be appointed by Her Majesty by commission under her sign manual and signet and shall hold office during Her Majesty's pleasure":

and part of section 2 reading:

"... the Governor shall do and execute all things that belong to his office according to such instructions, if any, as Her Majesty may from time to time see fit to give him."

Chapter II deals with the legislature, section 6 providing that it "shall consist of Her Majesty and a legislative assembly." Chapter IV deals with executive powers, section 42 providing that:

"The executive authority of Southern Rhodesia is vested in Her Majesty and may be exercised on Her Majesty's behalf by the

Governor or such other persons as may be authorised in that behalf by the Governor or by any law of the legislature."

Chapter V, dealing with the judicature, was validly repealed and replaced by the Constitution Amendment Act, 1964, of Southern Rhodesia, which was rendered necessary by the break-up of the Central African Federation. Section 50 provides that there shall be a High Court of Southern Rhodesia, consisting of the Appellate Division and the General Division. Section 54 deals with the qualification of judges. Subsection (3) reads:

"A judge of the High Court shall not enter upon the duties of his office unless he has taken before the Governor or some person authorised by the Governor in that behalf, the oath of allegiance and the judicial oath in the forms set out in the First Schedule."

The oath of allegiance is to

"... Her Majesty Queen Elizabeth the Second, her Heirs, and successors according to law."

The judicial oath reads:

"I.......... do swear that I will well and truly serve our Sovereign Lady Queen Elizabeth the Second in the office of..........., and will do right to all manner of people after the laws and usages of Southern Rhodesia, without fear or favour, affection or illwill. ..."

Section 55 deals with the appointment of judges. Subsection (5) reads:

"The puisne judges shall be persons qualified for appointment under the provisions of subsection (1) of section 54 and shall be appointed by the Governor, on the advice of the Prime Minister and with the agreement of the Chief Justice, by instrument under the public seal."

Section 56A deals with the tenure of office of the judges, and allows for the retirement or resignation of a judge, and enacts that the office of a judge of the High Court shall not, without his consent, be abolished during his tenure of office. Section 56B provides a strict code governing the removal of judges. Section 56D provides, so far as this case is concerned, that the law to be administered should be Roman-Dutch law as modified by subsequent legislation having in Southern Rhodesia the force of law. I shall refer to the 1961 Constitution as amended in 1964 as "the 1961/64 Constitution."

On November 11, 1965, the Prime Minister of Southern Rhodesia and his colleagues issued a "Declaration of Independence" (which I have called and purpose hereafter to call "U.D.I.") purporting to declare that Southern Rhodesia was no longer a crown colony. On the same day, in a message to the people of Rhodesia, the Governor informed them that the Declaration of Independence was unconstitutional and that the Prime Minister and his colleagues had ceased to hold office. This message called upon the people to refrain from illegal acts furthering the objects of the illegal régime, and proceeded as follows:

"It is the duty of all citizens to maintain law and order in the country and to carry on with their normal tasks. This applies equally to the judiciary, the armed services, the police and the public service."

On November 16, 1965, the United Kingdom Parliament passed the Southern Rhodesia Act, 1965, which declared that Southern Rhodesia continued to be part of Her Majesty's dominions and that "the Government and Parliament of the United Kingdom have responsibility and jurisdiction as heretofore for and in respect of it." The Act provided that Her Majesty might make "such provision ... as appears to her to be necessary or expedient ... by Order in Council." on November 18, 1965, the Southern Rhodesia Constitution Order 1965 (which I shall refer to as "the 1965 Order in Council") was made in pursuance of that Act. Section 2 (1) reads:

"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 4 (1) (e) reads:

"... a Secretary of State may exercise any function that is vested by the constitution or any other law in force in Southern Rhodesia in any officer or authority of the Government of Southern Rhodesia (not being a court of law) or (whether or not he exercises that function himself) prohibit or restrict the exercise of that function by that officer or authority."

Section 6 reads:

"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."

Nevertheless, the Prime Minister of Southern Rhodesia and his colleagues disregarded their dismissal from office; and the members of the legislative assembly disregarded its suspension and purported to adopt a new constitution (which I shall refer to as "the 1965 Constitution"). It made no provision for a Governor; but chapter II provided for an "officer administering the government in and over Rhodesia." Chapter VI deals with the judicature; and is in much the same terms as chapter V of the 1961/64 Constitution, with, so far as this case is concerned, two important distinctions. First, section 58 (3) provides:

"A judge of the High Court shall not enter upon the duties of his office unless he has taken before the officer administering the government or some person authorised by the officer administering the government in that behalf, the oath of loyalty and the judicial oath in the forms set out in the first schedule."

The oath of loyalty reads:

"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 judicial oath reads:

"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......."

Secondly, section 65 abolishes appeals from Rhodesia to the Privy Council. Section 128 deals with "The High Court and the judges thereof." By subsection (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."

By subsection (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), continue to hold the like office as if he had been appointed thereto under the corresponding provisions of this constitution."

By subsection (3) the existing judges are, subject to the provisions of subsection (4), deemed to have complied with the requirements of the constitution relating to the taking of oaths on appointment to such office. By subsection (4), however, an existing judge might be required to state forthwith whether he accepts the 1965 Constitution and to take the oath of loyalty and the judicial oath under it, failing which his office should be deemed to have become vacant.

On July 23, 1968, the Privy Council, having heard extensive argument over eight days, gave their advice in Madzimbamuto's case. They held that the Southern Rhodesia Act, 1965, and the 1965 Order in Council were of full legal effect in Southern Rhodesia; and that accordingly the 1965 Constitution, which purported to provide for an "officer administering the government in and over Rhodesia," was void and of no effect by virtue of section 2 (1) of the 1965 Order in Council. Their Lordships assumed that the Appellate Division, in the judgment appealed from, considered itself as a court sitting under the 1961/64 Constitution; but the Appellate Division subsequently, in Ndhlovu v. The Queen, made it clear that this assumption was incorrect. I am not strictly bound to follow the decision of the Privy Council, but I have no hesitation in doing so.

On September 13, 1968, the Appellate Division of the High Court of Rhodesia gave judgment in Ndhlovu v. The Queen. I have been provided with a copy of the judgment as printed at the request of the court and I refer to its pagination. Beadle C.J. held at pp. 26-27:

"It is no longer possible for a judge to carry on as a judge serving under the 1961 Constitution. ... This being so, there is no escape from the view that the 1961 Constitution has now been annulled by the efficacy of change, and from this it follows that the courts must now take cognisance of the fact that the present government is the only lawful Government of Rhodesia and that the 1965 Constitution is the only lawful constitution. ... If, therefore, the judges of the High Court decide to carry on, they cannot carry on as a 1961 Constitution court, and if they cannot carry on as a court serving under

a de facto government, the only other capacity in which they can carry on is as a court serving under a de jure government. 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."

This line of argument also appears by the Chief Justice's conclusions 2, 4, 9, 10 and 15 (pp. 27 to 29). Quenet J.P. summarised his judgment at p. 36, as follows:

"... The present government has achieved internal de jure status. ... It follows that while the judges of this court exercise the judicial function they must give effect to the laws and the constitution of the present government."

Macdonald J.A. concluded his judgment, at p. 50:

"... I am satisfied that the present government of Rhodesia has become the only legal government of this country and the 1965 Constitution the only legal constitution."

It was in consequence of that case that the Registrar-General indicated that he would advise a superintendent registrar that a divorce decree granted after September 13, 1968, whether or not granted by a judge appointed before U.D.I., would not be recognised as a valid judgment of a lawful court; and the principal probate registry ceased thereafter to reseal Rhodesian grants of representation: see Practice Direction (Rhodesian Grants: Resealing) [1970] 1 W.L.R. 687. The direction of the senior probate registrar (for which I take administrative responsibility) and the advice given by the Registrar-General (itself based on advice given to him) do not, of course, in any way bind this court.

In the Rhodesia Government Gazette dated November 2, 1968, it was notified

"that, in terms of subsection (5) of section 59 of the Constitution of Rhodesia, 1965, His Excellency the Officer Administering the Government has appointed Mr. Advocate John Burman Macaulay Q.C. as a puisne judge of the High Court of Rhodesia."

(The appointment of Greenfield J. to the Bench had apparently been similarly gazetted on May 1, 1968.) It is common ground that both took oaths in terms of the 1965 Constitution.

In 1969 there was purported to be "enacted by His Excellency the Officer Administering the Government, as representative of The Queen's Most Excellent Majesty, by and with the advice and consent of the Parliament of Rhodesia" a new, republican constitution (which I shall call "the 1969 Constitution"). Chapter IV, dealing with the judicature, was in largely similar terms to those of chapter VI of the 1965 Constitution. The oaths, however, had to be taken before the president, and were in the form appropriate to a republic, omitting all mention of Her Majesty. There does not seem to be any equivalent of section 128 of the 1965 Constitution.

On March 2, 1970, Mr. Stewart, then Her Majesty's Secretary of State

for Foreign and Commonwealth Affairs, stated in the United Kingdom Parliament, in relation to affairs in Rhodesia (Hansard, col. 13), as follows:

"... in a number of cases members of the public services, including the courts, have joined the rebellion. In other cases members of the public services still believe that they could continue to function as they did before i.d.i. [i.e., U.D.I.]. But this is not so and can no longer be seen in this light. The former governor's injunction has lapsed and those who continue to serve a régime which asserts illegally that Southern Rhodesia is a republic - like those appointed by the régime - cannot be regarded as serving the Crown in Southern Rhodesia. This change in their status must, in our view, have consequences for the functions they perform and for the validity of acts done in the performance of those functions; the effects of these matters on individuals will, however, fall to be considered by the courts in this country."

On July 21, 1970, Sir Alec Douglas-Home, who had succeeded Mr. Stewart as Secretary of State for Foreign and Commonwealth Affairs, certified to the petitioner's solicitors for the purpose of this suit as follows:

"In response to the request received on July 9, 1970, from Messrs. Leathes Prior and Son for a certificate for use by their client in these proceedings in respect of the following questionnaire, that is to say:

"'Did Her Majesty's Government recognise Mr. Smith's régime in Rhodesia as the de facto government as at:

"I, Alexander Frederick Douglas-Home, Her Majesty's Secretary of State for Foreign and Commonwealth Affairs, hereby certify as follows:

"(a) Southern Rhodesia has since 1923 been, and continues to be, a colony within Her Majesty's dominions, and the Government and Parliament of the United Kingdom have responsibility for and jurisdiction over it as and to the extent provided in section 1 of the Southern Rhodesia Act, 1965;

"(b) Her Majesty's Government in the United Kingdom do not recognise, and have not at any time recognised, Southern Rhodesia (or Rhodesia) as a state either de facto or de jure;

"(c) Her Majesty's Government in the United Kingdom do not recognise, and have not at any time since November 11, 1965, recognised, any persons purporting to be officer Administering the Government, President or Ministers of Southern Rhodesia (or Rhodesia) as constituting a Government in Southern Rhodesia either de facto or de jure.

[Signed] Alec Douglas-Home."

A certificate from Her Majesty's Secretary of State has not the same significance where the courts are concerned with questions

of usurpation of sovereignty as it has where the courts are concerned with relations with foreign states: see Madzimbamuto's case [1969] 1 A.C. 645, 723-724. But it is helpful in obviating the need for the court to embark on the generally impracticable task of determining on extrinsic evidence how far a régime is in effective control of any given territory (see Madzimbamuto's case at p. 724B-C; and cf. Duff Development Co. Led. v. Kelantan Government [1924] A.C. 797, 841 by Viscount Finlay) and in indicating how far Her Majesty's Government are still seeking to regain control of affairs in Rhodesia by ousting the usurping power: see Madzimbamuto's case at p. 725E. In my view, the certificate makes it impossible for this court to adopt the view of the Appellate Division in Ndhlovu v. The Queen that the present régime in Rhodesia is the government de jure, and that the 1965 (or, perhaps, now the 1969) Constitution is the only valid constitution. It is also of assistance in determining some of the issues in this case so far as they depend on questions of public policy or presumed intention of the Sovereign.

The principal arguments

It was argued on behalf of the Attorney-General as follows:

(1) For a divorce decree purporting to be pronounced by a court abroad to be recognised by an English court as valid to terminate a marriage, the court pronouncing the decree must be competent to do so in the eyes of English law both according to the rules of English private international law and according to the municipal law of the country in question.

(2) An English court will not recognise any judgment or order of any court in Rhodesia since Ndhlovu's case, since all courts now functioning in Rhodesia purport to be exercising jurisdiction under a constitution which has no legality in the eyes of English law. There is therefore now no court functioning in Rhodesia which has municipal competence to dissolve a marriage.

(3) Alternatively, an English court will not recognise any judgment or order of any judge not validly appointed under the only Rhodesian constitution recognised by English law, i.e., that of 1961-64: Macaulay J. is such a judge, as is also Greenfield J.: neither has therefore municipal competence to dissolve a marriage.

It was also at one time argued on behalf of the Attorney-General that the decree of Macaulay J. of April 9, 1970, was invalid by reason of section 6 of the 1965 Order in Council; but this point was ultimately abandoned.

It was argued for the wife as follows:

(1) (a) The effective step in the Rhodesian divorce proceedings was the decree of restitution of conjugal rights of February 12, 1970, everything thereafter being routine. (b) Goldin J., a pre-U.D.I.-appointed judge, pronounced that decree of restitution of conjugal rights. (c) His judgments are therefore entitled to recognition (i.e., controverting the second argument on behalf of the Attorney-General).

(2) Even if the decree of Macaulay J. of April 9, 1970, was not pronounced by a judge validly appointed under the only constitution

recognised by English law (as was accepted), nevertheless the ostensible change in the wife's status effected thereby should be recognised as legally valid under the so-called doctrine of "necessity."

(3) Alternatively, Macaulay J., though not a judge de jure, was a judge de facto; and as such his judgments and orders are entitled to recognition. (This was the point which emerged at a late stage of the argument.)

(4) The Secretary of State, by failing to exercise his powers under section (4) (1) (e) of the 1965 Order in Council to prohibit the appointment of Macaulay J., or to appoint any judge in his place, or to prohibit or restrict the exercise of his functions, must be taken to have impliedly approved on behalf of the Crown the exercise by Macaulay J. of his judicial function.

Counsel for the Attorney-General controverted these arguments.

General principles of recognition

For a judgment to be recognised by the courts of this country, it must be pronounced by a court competent to pronounce it according to our rules of private international law. The Rhodesian courts satisfied this test; either because, as the petitioner swore in her affidavit, the husband was domiciled in Rhodesia (Le Mesurier v. Le Mesurier [1895] A.C. 517, in so far as not disapproved in Indyka v. Indyka [1969] 1 A.C. 33); or because, as stated in the petition in the instant case, the Rhodesian court took jurisdiction on the basis that the wife had been deserted by the husband and that the husband was immediately before the said desertion domiciled in Rhodesia (see Matrimonial Causes Act, 1965, s. 40 (1) (a) (i); Travers v. Holley [1953] P. 246; Indyka v. Indyka [1969] 1 A.C. 33; or because the parties had a close and substantial connection with Rhodesia (Indyka v. Indyka).

But the court whose decree is in question must also be competent to pronounce it by its municipal law. An issue as to this infrequently arises; though Papadopoulos v. Papadopoulos [1930] P. 55 is an example. Generally the matter is disposed of by calling an expert witness who, on examination of the decree, testifies that it would be accepted as evidence of a valid judgment by the courts of the country in question.

In the present case this is the crucial question. Should the Rhodesian decree be accepted by the courts of Rhodesia as validly dissolving the marriage by their municipal law ? In answering this question, the courts of Rhodesia must be taken to be correctly applying the law as laid down by The Queen in Parliament in the United Kingdom, in particular the 1961/64 Constitution and the 1965 Order in Council.

Which decree?

It was argued for the wife that the effective decree was the decree of restitution of conjugal rights pronounced by Goldin J. On February 12, 1970, and that everything thereafter was mere routine. This seems to me to be an impossible argument - contradicted indeed by the petition and by the expert evidence called on behalf of the wife. Unless an effective decree of divorce was pronounced, the wife continued to be married to

the husband. The only decree purporting to dissolve the marriage was that pronounced by Macaulay J. on April 9, 1970.

The de jure status of Macaulay J.

Madzimbamuto's case established that the only lawful constitution of Rhodesia was that of 1961/64. The inferences that I draw from the certificate of the Secretary of State (reinforced by the statement in Parliament of his predecessor) preclude me, in my view, from a factual investigation, such as was undertaken by the Appellate Division of the High Court of Rhodesia in Ndhlovu's case, which led them to the conclusion that the usurping régime was a government de jure and the 1965 Constitution the valid constitution of the land. In any case, I have no material for any such investigation. Indeed, it was accepted on behalf of the wife that the 1961/64 Constitution was the only legally valid constitution of Rhodesia.

In the absence of any evidence to the contrary, I have no hesitation in assuming that Macaulay J. was personally qualified under section 54 of the 1961/64 Constitution. But he failed to comply with section 55 (5), because he was not appointed by the Governor, or with section 54 (3), because he did not take before the Governor, or some person authorised by the Governor in that behalf, the oath of allegiance and the judicial oath in the form set out in the first schedule. It is an agreed fact that Macaulay J. and Greenfield J. were appointed under, and took oaths in terms of, the 1965 Constitution.

Nor can I accept the argument that the Secretary of State, by omitting to exercise his power under section 4 (1) (e) of the 1965 Order in Council to prohibit or restrain the ostensible appointment of Macaulay J., or himself to appoint a judge to what was presumably a vacancy on the Bench, implicitly approved the ostensible appointment of Macaulay J. That section of the 1965 Order in Council is permissive in character; and, moreover, it is expressly stated to be "without prejudice to any other provision of this order." Section 2 (1) declared void and of no effect "any instrument made or other act done in purported promulgation of any constitution for Southern Rhodesia except as authorised by Act of Parliament." The effect of that was to invalidate the 1965 Constitution: see Madzimbamuto's case. This seems to me to leave no room for any implied authorisation by the Secretary of State to Macaulay J. to assume office ostensibly under the 1965 Constitution, even if that were not repugnant to common sense in view of the certificate of the Secretary of State and the statement in Parliament of his predecessor.

I am therefore compelled to hold that Macaulay J. is not a judge de jure of the High Court of Rhodesia.

The so-called doctrine of "necessity"

This doctrine was exhaustively canvassed in the arguments, and discussed in the judgments, in Madzimbamuto's case; and it formed the basis of Lord Pearce's dissent. Both majority and minority quoted from Grotius, De Jure Belli ac Pacis, Bk. I, Ch. 4, Sect. XV (quoted from the translation of J. Barbeyrac, 1st ed. (1738), p. 121):

"We have treated of him who has now, or has had, the right to govern: it now remains that we say something of him who usurps the government; not after he has by long possession, or agreement obtained a right to it, but so long as the cause of his unjust possession continues. The acts of sovereignty exercised by such a usurper may have an obligatory force, not by virtue of his right (for he has none), but because it is very probable that the lawful sovereign, whether it be the people themselves, or a king, or a senate, chooses rather that the usurper should be obeyed during that time, than that the exercise of the laws and justice should be interrupted, and the state thereby exposed to all the disorders of anarchy." (See also the translation quoted by Lord Pearce, at p. 735.)

Lord Pearce, at p. 737, referred the doctrine to:

"... the reasonable and humane desire of preserving law and order and avoiding chaos which would work great hardship on the citizens of all races and which would incidentally damage that part of the realm to the detriment of whoever is ultimately successful. ... For this reason it is clearly desirable to keep the courts out of the main area of dispute, so that, whatever be the political battle, and whatever be the sanctions or other pressures employed to end the rebellion, the courts can carry on their peaceful tasks of protecting the fabric of society and maintaining law and order."

There were a number of decisions in the United States after the American Civil War which applied the doctrine to legal transactions and forensic acts which took place in the confederate states during their rebellion. I need only cite one passage from one authority - Horn v. Lockhart (1873) 17 Wallace 570, 580 (84 U.S.) - which was quoted in Madzimbamuto's case [1969] A.C. 645, 727-728:

"We admit that the acts of the several states in their individual capacities, and of their different departments of government, executive, judicial, and legislative, during the war, so far as they did not impair or tend to impair the supremacy of the national authority, or the just rights of citizens under the constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated precisely as in time of peace. No one that we are aware of seriously questions the validity of judicial or legislative acts in the insurrectionary states touching these and kindred subjects, where they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the constitution."

I would draw attention in this quotation to the equating of the executive, judicial and legislative acts. Also to "mode of enforcement"; since

judicial orders, even in the most private sphere, may result in the use of coercive power by executive officers.

Lord Pearce's opinion is a powerful judgment; and if it had prevailed, the instant case would be a fortiori. But the majority of the Board did not agree with it. It is true that, in the view of the majority, the clinching argument was that no general principle depending upon "necessity," or an implied mandate from the lawful Sovereign which recognised the need to preserve law and order within the territory controlled by a usurper, could override the legal right of the Parliament of the United Kingdom to make laws for such a territory; and that no purported law made by any person or body in Southern Rhodesia, no matter how necessary such law might be for preserving law and order, or otherwise, could have any legal effect whatsoever (see p. 729).

The foregoing reasons would have been enough to dispose of the argument based on the doctrine of "necessity" so far as the majority of the board in Madzimbamuto's case was concerned. But their opinion nevertheless also contained the following passage (p. 728), which would hardly have been included if their Lordships had not considered that the matters referred to were relevant to the applicability in the Rhodesian situation of the doctrine of "necessity" and of the cases decided in the United States after the Civil War.

"In the first place there was divided sovereignty in the United States, the United States only being sovereign within defined limits. ... Secondly, the decisions were concerned with the legal effect, as regards the civil claims of individuals, after the civil war, of acts done during it. None of them were cases of courts called upon, during the rebellion, to pass upon the legality of the governments of the rebellious states. ... And thirdly the Congress of the United States did not, and perhaps under the constitution could not, make laws similar to the Southern Rhodesia Act, and order in Council of 1965, providing what the legal position was to be in the seceding states during the war. ..."

I would draw particular attention to the second consideration referred to. It did not commend itself to Lord Pearce (which reinforces the significance of its inclusion in the majority opinion); though Lord Pearce did acknowledge that "when one comes to assess the question of public policy ... there is a wide difference between the retrospective and contemporaneous" (see p. 733A-D).

But public policy is the very essence of the doctrine, whether one calls it "necessity" or "implied mandate" or anything else. All that I have been told of the political and legislative history of the U.D.I. affair, coupled with the scope of the argument for the Attorney-General in the instant case, suggests to me that I am concerned with, so to speak, a legal blockade as a counterpart of the economic blockade. The essence of the blockade of a usurping régime is to cause it to capitulate by bringing pressure on citizens within the territory of usurpation. Innocent private individuals, even children, may be caused undeserved hardship in the process. If this is a just parallel, there does indeed seem to be all the

difference between according legal recognition during the usurpation to executive, judicial or legislative acts of the usurping régime and doing so after capitulation; just as there is all the difference between allowing blockade-running during a rebellion and lifting the blockade after the capitulation. Courts of law have no means of judging the necessity or desirability of any type of ostracism or pressure in such cases, or of knowing the repercussions of any measure of relaxation.

Finally, I think that both the majority of their Lordships and Lord Pearce found the most satisfactory basis of the doctrine in an implied mandate from the lawful sovereign, since this does not involve denying his legal right to govern or admit in any way the lawfulness of the usurpation. As the majority put it, at p. 729:

"It may be that there is a general principle, depending on implied mandate from the lawful sovereign, which recognises the need to preserve law and order in territory controlled by a usurper."

As to this, I would venture to make two observations. First, that this is a fiction. Fictions are desirable, perhaps, when they are the only means of abating the rigour of the law; and more necessary, perhaps, where legislative powers are constrained by a paramount written constitution. But they are less necessary when sovereign parliaments are in continuous session and able to express their wishes legislatively (particularly when legislation can be enacted by order in Council). Secondly, as I have indicated, much that I have heard makes me feel that the implication of a mandate might well be contradicting the real intention of the lawful sovereign.

The doctrine of "necessity" is intimately connected with concepts of public policy, a sphere in which courts of law are rightly chary of intrusion. Where one has a sovereign legislature continuously in session, it seems to me in every way preferable to leave it to The Queen in Parliament to decide how far recognition should be accorded to executive, judicial or legislative acts of organs of government which are non de jure.

I do not think that the doctrine of "necessity" entitles me to accord recognition to the judicial acts of Macaulay J.

Validity of acts of a de facto judge

There seems to have been no recent example of the application of any such doctrine in English law. Indeed, counsel for the Attorney-General denied its existence. But, having had an opportunity, however cursory, of examining the authorities (which counsel for the Attorney-General did not have), I am satisfied that the concept is part of English law. The authorities are set out in two masterly judgments of great learning in respectively the Supreme Court of Connecticut (State v. Carroll (1871) 38 Conn. 449; 9 Am. 409) and the Court of Appeal of New Zealand (In re Aldridge (1897) 15 N.Z.L.R. 361); and the doctrine is also discussed in an article entitled "De Facto Officers" by Dixon J. (later Chief Justice of Australia) in the publication Res Judicata (Melbourne, 1940), Vol. 1, pp. 285-292. I think, though, that counsel for the Attorney-General was justified in claiming that the doctrine is inconsistent with the decision of

the Court of Criminal Appeal in Rex v. Cronin [1940] 1 All E.R. 618. But the point was not drawn to the attention of the court, the decision of which is in any event not binding on me. (Dixon J., in his article, also mentioned at least one Australian case where the doctrine was not invoked, though it might have been decisive.) But it is of the essence of the common law that its rules, even though fallen into disuse, may be revived if circumstances develop in which they may prove to be again. Of value: see Mirehouse v. Rennell (1833) Cl. & F. 527, 546 by Parke B., Bowman v. Secular Society Ltd. [1917] A.C. 406, 454 by Lord Sumner; and cf. the recent revival of the offence of affray. I can certainly conceive of circumstances where the doctrine of the validity of the acts of officers (including judicial officers) de facto sed non de jure would be useful.

"The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of that office without being lawful officers" (State v. Carroll, 9 Am. 409, 432 by Butler C.J.).

What I have said about public policy in relation to the doctrine of "necessity" is therefore again relevant here.

A useful illustration of the doctrine in English law appears from Rex. v. Bedford Level Corporation (1805) 6 East 356. The question was whether the acts of a deputy registrar who continued to act after the death of his principal were valid as those of an officer de facto sed non de jure. Lord Ellenborough C.J., giving the opinion of the court, said, at pp. 368-369:

"An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law."

The court held that the acts of the deputy registrar were good until the death of the principal was known, but not afterwards. That case shows, in my view, that the doctrine has no place where the circumstances giving rise to the legal defect are notorious.

It is plain from the cases cited in State v. Carroll and In re Aldridge, as well as those cases themselves, that the doctrine extends to acts of a judicial officer. Indeed, In re Aldridge was concerned with the acts of a purported judge of the Supreme Court of New Zealand, sitting in criminal jurisdiction.

But, with one possible exception, I cannot find that the doctrine has ever been applied to the prejudice of any right of a sovereign. On the contrary, in Harris v. Jays (1599) Cro.Eliz. 699, the inscription of a copy-hold by an invalidly appointed steward of a manor, who would otherwise have been considered to have been a steward de facto (see Knowles v. Luce (1580) Moo.K.B. 109; Parker v. Kett (1701) 1 Ld.Raym. 658) was not effective because the manor had escheated to the Crown. "This new grant is in prejudice to the Queen, who is lady of the manor," said Gawdy J. (This could, of course, either have been because the Queen had the right of appointment of the steward or because part of her property was alienated.)

The possible exception arises out of the Statute 1 Edw. 4, c. 1, which dealt with various judicial acts, recoveries and forensic processes in the times of Henry IV, Henry V and Henry VI, described in the statute as "late kings ... in deed and not of right" (de facto sed non de jure). The Act confirmed generally (though with exceptions) the judicial acts of those kings and of judges appointed by those kings and judicial or forensic processes appendant thereto. Richmond J. in Aldridge's case (1897) 15 N.Z.L.R. 361, 369 said:

"This Act is declaratory, and is expressed to be, to eschew (eschuer) - i.e. avoid - doubts which might arise; and, accordingly, in Bagot's case it was treated by both parties and the court as merely affirming the common law ... see the case abridged by Brooke [Abridgement, Patentes, 21]. In the course of the discussion, it was laid down by Billing J. that the judicial acts of a king de facto are good. The case [was] cited as establishing that doctrine by Bacon, arguendo, in Harris v. Jays (1599) Cro.Eliz. 699."

But I cannot myself read the Statute 1 Edw. 4, c. 1, as giving any indication that it was declaratory of the common law: the doubts that might arise were by reason that certain judicial acts were declared valid and others not. The reports of Bagot's case, whether in the Year Book 9 Ed. IV 2 or in Brooke's Abridgement, and of Harris v. Jays do not make it clear what exactly was considered to be the common law element in the matter. If it were correct that at common law the judicial acts of a usurping king, or of a judge appointed by him, are good as those of an officer de facto, the Act for Confirmation of Judicial Proceedings, 1660 (12 Car. 2, c. 12), which runs strictly parallel to the Statute 1 Edw. 4, c. 1, would have been unnecessary, or at least should have been in declaratory form, which it was not. In so far as a matter is dealt with by legislation. it at any rate tends to suggest that there is no common law rule which deals with the situation in a similar way. In the Statute 1 Edw. 4, c. 1, the kings were expressly declared to be kings de facto, which might allow for the proposition that it was in the circumstances a particular statutory extension of a general common law rule as to the efficacy of acts of a de facto officer. Moreover, such a limititation on the doctrine - that it has no application where the appointment to the office is in derogation of the rights of the sovereign - has, in my view, its counterpart in the rule laid down by the Supreme Court of the United States in Norton v. Shelby County (1886) 118 U.S. 425 that the doctrine has no application when the statute establishing the office is ultra vires.

In any case, I do not think that the instant case comes within the definition of the doctrine even so widely stated as it was by Butler C.J. in State v. Carroll (1871) 9 Am. 409, 427; this was as follows:

"An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised:

"First, without a known appointment ..., but under such circumstances of reputation or acquiescence as were calculated to induce

people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be."

But the appointment of Macaulay J. was a known one and the circumstances which rendered it invalid in the eye of English law must have been notorious.

"Second, under color of a known and valid appointment ... but where the officer has failed to conform to some precedent requirement or condition, as to take an oath, ..."

But here the appointment was invalid.

"Third, under color of a known ... appointment, void, because ... there was want of power in the ... appointing body, or by reason of some defect or irregularity in its exercise, such ... want of power, or defect being unknown to the public."

But here the want of power in the appointing body and the defect and irregularity of its purported manner of appointment were known to the public.

"Fourth, under color of an ... appointment by or pursuant to a public unconstitutional law, before the same is adjudged to be such."

This fourth head is primarily referable to conditions in the United States, where there is a paramount constitution, under which legislative acts can be invalidated; it is difficult to reconcile with Norton v. Shelby County (1886) 118 U.S. 425; and, in any event, before the purported appointment of Macaulay J. under the 1965 Constitution, that constitution had been declared invalid by the Privy Council in Madzimbamuto's case [1969] A.C. 645.

I would venture to add two more observations on this doctrine. First, I can find no trace of its ever being applied during a rebellion to accord recognition to the judicial or official acts of or under a usurping power: cf. Madzimbamuto's case at p. 728D. Secondly, I think that it would be a constitutional anomaly for our courts to recognise the validity of the acts of Macaulay J. as a de facto judge while the executive acts of those appointing him (which must include his very appointment) are refused recognition de facto by the executive here.

In Lancastrian and Yorkist times the executive, legislative and judicial functions were not constitutionally differentiated as they are today. If a king who himself exercised judicial power was statutorily declared to be a king de facto, it followed almost inevitably that the acts of his judicial appointees should be accorded de facto recognition. But, in the situation with which I am concerned, The Queen in Parliament in the United Kingdom has expressly declared that those who appointed Macaulay J. were non de jure, and the executive has refused to recognise them as exercising power de facto. For the judiciary here to recognise the efficacy of the acts of such an appointee on the ground that he was exercising his office de facto would indeed involve the state in speaking "with two voices."

I therefore hold that the doctrine of the validity of the acts of a de facto officer does not entitle this court to recognise the decree of Macaulay J. of April 9, 1970, as valid by the municipal law of Rhodesia.

Recognition of other judicial acts in Rhodesia

Having come to the conclusion that the crucial judgment in this case was the divorce decree of April 9, 1970, pronounced by Macaulay J., and that that decree is not entitled to recognition in an English court, being pronounced coram non judice by reason of the appointment of Macaulay J. being invalid under the 1961/64 Constitution, it is strictly unnecessary to consider whether the decree of restitution of conjugal rights pronounced by Goldin J. on February 12, 1970, should be accorded recognition. This involves the wider and alternative argument of counsel for the Attorney-General that since Ndhlovu v. The Queen no judgment of the High Court of Rhodesia whatsoever is entitled to recognition by the courts of this country. ordinarily, I would not have embarked on any investigation not necessary for the decision of the case before me. Indeed, I should be glad to leave my judgment here. But it seems to me that it would not be fair to deny to marriage officers in this country such guidance as I can give, having heard argument on the point.

I have already indicated what was decided in Ndhlovu's case and the argument of counsel for the Attorney-General based thereon. He relied particularly on a passage from a judgment of the Supreme Court of the United States in Luther v. Borden (1849) 7 Howard (U.S.) 1, 40, part of which was cited with approval by Beadle C.J. in Ndhlovu's case at p. 9. It reads:

"Judicial power presupposes an established government capable of enacting laws and enforcing them after execution, and of appointing judges to expound and administer them. The acceptance of the judicial office is a recognition of the authority of the government from which it is derived. And if the authority of that government is annulled and overthrown, the power of its courts and other officers is annulled with it. And if a state court should enter upon the enquiry proposed in this case, and should come to the conclusion that the government under which it acted had been put aside and displaced by an opposing government, it would cease to be a court and be incapable of pronouncing a judicial decision upon the question it undertook to try. If it decides at all as a court, it necessarily affirms the existence and authority of the government under which it is exercising judicial power."

Beadle C.J., of course, cited the passage as part of the proposition: we are exercising judicial power; we are thereby affirming the existence and authority of the only effective government of this country; and are therefore sitting by virtue of the 1965 Constitution, since that is the source from which the only effective government derives its legal power. Counsel for the Attorney-General relies on the passage for the proposition: the courts in Rhodesia, by claiming to sit under the 1965 Constitution, are denying that they are sitting under the 1961/64 Constitution (as, indeed, the Appellate Division did in Ndhlovu's case); but, since the 1961/64 Constitution is the only legal constitution, the courts in Rhodesia are by their own assertion not sitting legally at all; so that their judgments are not entitled to recognition.

But, apart from Greenfield J. and Macaulay J., the judges of the High Court of Rhodesia were all validly appointed under the 1961/64 Constitution. In the eyes of English law, in my judgment, 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. (The possible effect of a renunciation of allegiance was not argued before me - presumably because it did not affect any issue raised in the instant case: it must await decision in a case in which the issue arises.) Still less can I see that a declaration by three members of the Appellate Division, albeit of great eminence, can automatically change the legal status of other members of the judiciary.

I am therefore unable to accede to the wider argument of counsel for the Attorney-General, namely, that the decision in Ndhlovu's case ipso jure rendered all judicial acts in Rhodesia disentitled to recognition. I am unhappily aware that this ruling will create anomalies through differential recognition of the acts of judges appointed respectively before and after U.D.I. - anomalies that are obviously likely to increase with the passage of time, if no remedial action is taken. But my task is limited to declaring the law as I see it: any remedial action that seems to be called for is a matter for the executive or the legislature.

Conclusion

So far as I am able to judge, the wife has been ill-used matrimonially, and is now the victim of political circumstances for which she has no responsibility. It is therefore with reluctance that I find that the law enjoins me to dismiss her petition.

In my view this case is yet one further illustration of the unsatisfactory basis of the divorce jurisdiction of the English court and of the now completely outmoded legal concept that the domicile of a married woman is dependent on that of her husband: Lord Advocate v. Jaffrey [1921] 1 A.C. 146. The appropriate authorities may wish to consider this aspect of the case also.

Solicitors: Lovell, White & King for Leathes, Prior & Son, Norwich; Treasury Solicitor.

D. R. E.