[1977] Ch. 41

In Re James (An Insolvent) (Attorney-General intervening)

Court of Appeal
CA
Lord Denning M.R., Scarman and Geoffrey Lane L.JJ.
1976 July 14, 15, 16, 19, 20, 21; Oct. 22

Bankruptcy--Jurisdiction--’British court’--Letter of request by ‘High Court of Rhodesia’ to bankruptcy division of High Court in London--Illegal regime in Rhodesia--Express acceptance by judiciary--Whether request from ‘British court’--Southern Rhodesia Constitution Order 1965 (S.I. 1965 No. 1952), ss. 2 (1), 6--Bankruptcy Act 1914 (4 & 5 Geo. 5, c. 59), s. 122

On November 11, 1965, after a unilateral declaration of independence (‘U.D.I. ‘) by Her Majesty’s ministers holding office under the Constitution of 1961 in the British colony of Southern Rhodesia, the governor as the sovereign’s representative dismissed the ministers, but called on the citizens, including the judiciary, to maintain law and order in the territory. On November 16, 1965, the sovereign by order in council declared void any legislative instrument made or act done in the territory ‘except as authorised by Act of Parliament’; but the order was silent about the judiciary, who continued to administer the law, both pre-U.D.I. and post-U.D.I., as judges of ‘the High Court of Rhodesia’ so named by the illegal regime in a purported constitution of 1965. In 1968 the chief justice, sitting with two judicial colleagues in the appellate division of that court, stated that it was by that date legally impossible for the appellate court in the territory to sit as a 1961 Constitution court and that those judges who did not accept the status quo would go. In 1969 the illegal regime introduced a purported new republican constitution which eliminated the power and authority of the sovereign and formulated a new judicial oath reflecting that change.

In January 1974 a firm of solicitors in Zambia, who claimed that a former partner had absconded with £160,000 of the firm’s funds, obtained a judgment in insolvency against him in ‘Rhodesia,’ where the defecting partner then was; and in February the ‘High Court’ made a final sequestration order on his assets and appointed a trustee in insolvency to collect the assets, some of which were believed to be in England. On the trustee’s application to ‘the High Court of Rhodesia’ a letter of request, issued and signed by the chief justice as ‘Chief Justice, High Court of Rhodesia,’ was directed to the bankruptcy division of the High Court in London seeking the court’s aid to recover any assets of the insolvent in England, under section 122 of the Bankruptcy Act 1914. [FN1] On October 11, 1974, a registrar in bankruptcy in the High Court in London acted in response and appointed a receiver in England, who applied under section 25 of the Act of 1914 for a summons to be issued requiring a brother of the insolvent domiciled in England to attend for examination and produce documents as to the insolvent’s movable assets here. The brother sought the discharge of the summons under section 108 of the Act; but the registrar dismissed his motion and confirmed the order for his examination.

FN1 Bankruptcy Act 1914, s. 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 the brother’s appeal the Attorney-General obtained leave to be joined as a party to the appeal and produced evidence to support the Crown’s contention that the registrar had no jurisdiction to give aid to a court purporting to act under an illegal constitution in a territory which had since November 1965 been in rebellion against the sovereign in Parliament: -
Held, allowing the appeal (Lord Denning M.R. dissenting), that, though the court which had issued the letter of request might be a court, it was not a ‘British court’ within section 122 of the Act of 1914, so that the registrar in bankruptcy in the High Court in England had no jurisdiction to aid it, and his orders in aid must be set aside; for it was impossible in 1974, the relevant date, to interpret the words ‘British court’ in a United Kingdom Act of Parliament as including in the category ‘British’ a court the judges of which had expressly stated that they sat as a court under a constitutional document which did not recognise the power and authority of the British Crown and which had been set up by men acting in defiance of the Queen in Parliament.
Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, P.C.; Reg. v. Ndhlovu (1968) (4) S.A. 515; and Adams v. Adams (Attorney-General intervening) [1971] P. 188 considered.
Per Scarman L.J. Section 122 is concerned not with geography but with courts (post, p. 72D-E).
Per Geoffrey Lane L.J. Judges in Rhodesia after September 1968 were sitting not as a court under the lawful 1961 Constitution but under the illegal 1965 Constitution (post, p. 77A-B).
PerLord Denning M.R. While the illegal regime controlled the legislative and executive branches of government the judiciary remained subject to the lawful sovereign under an implied mandate to maintain law and order; the country remained in law a British colony; and the courts remained ‘British courts’ in so far as they administered pre-U.D.I. law, including the Act of 1914 (post, pp. 63A-B, 67G - 68A).

The following cases are referred to in the judgments:

Adams v. Adams (Attorney-General intervening) [1971] P. 188; [1970] 3 W.L.R. 934; [1970] 3 All E.R. 572.
Aldridge, In re (1893) 15 N.Z.L.R. 361.
Bilang v. Rigg [1972] N.Z.L.R. 954.
Duff Development Co. Ltd. v. Kelantan Government [1924] A.C. 797, H.L. (E.).
Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645; [1968] 3 W.L.R. 1229; [1968] 3 All E.R. 561, P.C..
Norton v. Shelby County (1886) 118 U.S. 425.
Reg. v. Ndhlovu (1968) (4) S.A. 515.
Rex v. Cronin (1940) 56 T.L.R. 457; [1940] 1 All E.R. 618 , C.C.A..
State, The v. Carroll (1871) 38 Conn. 449; 9 Am. 409.
Texas v. White (1868) 7 Wallace 700 (74 U.S.).
The following additional cases were cited in argument:
Attorney-General for the Republic v. Mustafa Ibrahim of Kyrenia [1964] 3 Supreme Court of Cyprus 195.
Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C. 75; [1964] 2 W.L.R. 1231; [1964] 2 All E.R. 348, H.L.(Sc.).
Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853; [1966] 3 W.L.R. 125; [1966] 2 All E.R. 536, H.L.(E.).
Chibi v. Minister of Internal Affairs, 1970 (1) R.L.R. 88.
De Jager v. Attorney-General of Natal [1907] A.C. 326, P.C..
Dolder v. Lord Huntingfield (1805) 11 Ves.Jun. 283.
Hanauer v. Woodruff (1872) 15 Wallace 439 (82 U.S.).
Horn v. Lockhart (1873) 17 Wallace 570 (84 U.S.).
Liyanage v. The Queen [1967] 1 A.C. 259; [1966] 2 W.L.R. 682; [1966] 1 All E.R. 650, P.C..
M. v. R., The Times, December 7, 1971.
Noble (A Bankrupt), In re, Ex parte The Bankrupt v. Official Receiver [1965] Ch. 129; [1964] 3 W.L.R. 206; [1964] 2 All E.R. 522, C.A..
Ogden v. Folliot (1790) 3 Term Rep. 726.
Rex v. Bedford Level Corporation (1805) 6 East 356.
Southern Rhodesia,  In re [1919] A.C. 211, P.C..
Sprott v. United States (1874) 20 Wallace 459 (87 U.S.).
Van Deventer v. Hancke and Mossop[1903] Transvaal Rep. 401.
Williams v. Bruffy (1877) 96 U.S. 176.

APPEAL from Mr. Registrar Hunt.
On August 16, 1974, a motion was filed ex parte on behalf of one William Alfred Pringle Wood, described as ‘the trustee of the insolvent estate of David Emlyn James in Southern Rhodesia,’ in the bankruptcy division of the High Court sitting at Thomas More Building, Royal Courts of Justice, Strand, London W.C.2, asking for an order pursuant to section 122 of the Bankruptcy Act 1914 and asking further that Mr. Wood, or alternatively John Ernest Hampden Davies, chartered accountant, of London should be appointed to give effect to any such order as receiver (without security) of any property of the insolvent situate in England with liberty to sell the same and authority to take such steps and do such things as might be necessary for those purposes.
The motion was supported by affidavits to which were exhibited copy documents showing that by orders of ‘the High Court of Rhodesia’ in Salisbury, Rhodesia, dated January 28, 1974, David James had been adjudged insolvent, and the insolvent’s estate had been placed under provisional sequestration, that by an order of the same court on February 15, 1974, Mr. Wood had been appointed curator bonis in the insolvent estate; that the final order of sequestration had been made on February 21, 1974, and that letters of request addressed to ‘The English Bankruptcy Court, High Court of Justice, Royal Courts of Justice, London, England’ dated April 16, 1976, had been issued which stated that on the petition of the appointed trustee it appeared that the insolvent was possessed of certain assets in England, said to consist in a half-share in a house in Bromley or the proceeds of the sale thereof, moneys to his credit at one or more of specified banks, specified shares, and certain other assets not yet located. That order concluded: 
‘Now therefore I, the Right Honourable Sir Thomas Hugh William Beadle, Kt., C.M.G., O.B.E., Chief Justice of the High Court of Rhodesia, confiding in your knowledge and ability do hereby seek aid and do request in terms of the Bankruptcy Act 1914 and in particular without limiting the generality of the foregoings of section 122 of the said Act, that you do issue an order granting the said William Alfred Pringle Wood recognition and assistance as trustee of the insolvent estate of the said David Emlyn James. Given under my hand and under Seal of the High Court of Rhodesia at Salisbury this 16th day of April 1974. Hugh Beadle, Chief Justice, High Court of Rhodesia.’

On October 11, 1974, Mr. Registrar Hunt in response to that request made an order appointing John Ernest Hampden Davies as receiver without security of all the movable property of the insolvent in England with authority to take all necessary steps to obtain possession of and sell the same and (subject to the provisions of the Exchange Control Act 1947 and such provisions (if any) as might from time to time relate to the transfer of property to Rhodesia) to remit the proceeds thereof to the trustee in Rhodesia, the costs of the applicant of and incidental to the application to be taxed on a common fund basis by the taxing officer of the court, and that when so taxed the receiver should be at liberty to retain and pay the same out of any moneys of the insolvent in England received by him.

Pursuant to that order the receiver on December 5, 1974, served an order on Mr. Geoffrey James, a brother of the insolvent, of 7, St. Paul’s Square, Bromley, Kent, requiring him to attend before the registrar on December 20, to give evidence and produce all books, papers, documents, or other materials in his custody, control or possession belonging to the insolvent or relating to his dealings with the insolvent, under threat that if he failed to attend, having no lawful impediment to show the court, the court might by warrant cause him to be apprehended and brought up for examination.

The brother applied to the registrar for discharge of the order to attend for examination, and supported it by an affidavit stating that he had been informed by his solicitors that the order of the High Court of Rhodesia for the issue of the letters of request was made by Goldin J.; that the order of sequestration was made under a judgment obtained against the insolvent in the High Court of Rhodesia pronounced by Beck J. of that court; and that: 

‘6. I am informed by my solicitors and verily believe that their inquiries have shown that Beck J. was appointed a judge of the High Court of Rhodesia after that country’s unilateral declaration of independence and that such appointment was not approved by Her Majesty the Queen. I am further informed by my solicitors that Goldin J. may similarly have been appointed after Rhodesia’s unilateral declaration of independence and this is being investigated. 7. I am advised and verily believe that it is the practice of this court not to recognise orders of the courts of Rhodesia made by judges whose appointments were not approved by Her Majesty the Queen. In the premises it is my respectful contention that the order for my examination would constitute an acknowledgment of an order made by such a judge in pursuance of insolvency proceedings based on a judgment of another such judge. In the premises I respectfully ask that the order for my examination be discharged.’

By his affidavit in reply the appointed receiver deposed, inter alia, that Sir Hugh Beadle C.J. and Goldin J. were appointed to their judicial offices prior to Rhodesia’s unilateral declaration of independence and that their appointments were approved by the Queen, and that Beck J. was appointed to his judicial office after U.D.I.

The registrar dismissed the motion on April 18, 1975. In the course of his judgment in which he reviewed a number of authorities on the question whether the order to attend for examination should be made in light of the constitutional position in Rhodesia following the unilateral declaration of independence on November 11, 1965, and the legal steps in Rhodesia leading up to the making of the order in aid under section 122 of the Act of 1914 the registrar stated: 

‘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’... bearing in mind that the order seeking aid was made by Goldin J., a judge appointed before U.D.I., it appears to me that the requirements of the section are satisfied and that this court was accordingly bound to make an order in aid of the Rhodesian court, unless there is something in the circumstances of this case which requires the court to ask for more than what the section itself says is ‘to be deemed sufficient’ to enable it to make an order...’ 

He concluded that if Parliament considered it to be in the public interest that the court should cease to give aid to the Rhodesian bankruptcy court, Parliament should provide for it by proper enactment; but that he did not believe that Parliament had yet done so.

The brother entered a notice of appeal dated May 23, 1975, asking that the registrar’s order be set aside, that the order summoning him to attend for examination under section 25 be discharged, and that the receiver should pay his costs. The grounds of his appeal were that the registrar was wrong in law in deciding that, in the absence of expert evidence of Southern Rhodesian law, he could not find that the bankruptcy proceedings relating to the insolvent were not properly constituted in Southern Rhodesia and that therefore the letters of request requesting the aid of the High Court of Justice in bankruptcy should not have been acted on by him for the purpose of making an order for the applicant’s examination under section 25 of the Act of 1914.

On May 19, 1976, an application was made on behalf of Her Majesty’s Attorney- General for an order that he be made a party to the appeal of Geoffrey Emlyn James; that directions for the further conduct of the appeal be given; and that he be made a party and given leave to appeal against the order of the registrar of October 11, 1974, notwithstanding that time for appealing under the Rules of the Supreme Court had expired: he also asked that the appeal from the registrar’s order of October 11, 1974, be heard together with the applicant’s appeal from his order dated April 16, 1975. On May 25, 1976, the Court of Appeal (Stamp and Goff L.JJ.) granted leave to the Attorney-General to intervene, on an undertaking as to costs the terms of which were clarified before another division of the court (Lord Denning M.R., Orr and Waller L.JJ.) on July 2, 1976, as an undertaking to pay all the costs of the appeal incurred by the receiver as a result of the Attorney-General’s intervention.

The grounds of appeal on behalf of the Attorney-General were (1) that no purported law made since November 11, 1965 (the date of the unilateral declaration of independence) by any person or body in Southern Rhodesia, and in particular neither the purported republican constitution of 1969 nor the purported constitution of 1965, had been or was recognised by Her Majesty’s government as having any legal effect, and no act of any administrator purporting to act under the purported constitutions or either of them had any legal effect whatsoever, or could be recognised by any English court as having any such legal effect; (2) that each of (i) Sir Hugh Beadle, who issued the letters of request dated April 16, 1974; (ii) Goldin J., who made, on February 21, 1974, the final order of sequestration, and on April 1, 1974, the order authorising the issue of such letters of request; (iii) Beck J., who on January 28, 1974, gave against the insolvent the judgment on which the insolvency proceedings were founded and made the sequestration order nisi if in so far as he was or had been at any material time a judicial officer at all, was and had been at such time a judicial officer purporting to act under the constitutions or one or other of them and/or was and had been at such time a person no longer owing his allegiance, or his prime allegiance, to Her Majesty the Queen; (3) that alternatively, Beck J. whose purported appointment as a judge of the High Court of Rhodesia took place after November 11, 1965, was not and had not been a judicial officer at all, and the judgment given and order made by him were nullities; (4) that the order in aid made on October 11, 1974, by Mr. Registrar Hunt was made without jurisdiction, because (a) it was made in pursuance of the purported letters of request and in reliance on the existence and validity of the aforementioned orders and judgment; (b) it was made in aid of letters or request and orders which purported to have been made by the High Court of Rhodesia, which was not and had not been a British court for the purpose of section 122 of the Bankruptcy Act 1914 since (i) November 11, 1965, alternatively (ii) September 13, 1968 (the date of the judgment delivered in the appellate division of the High Court of Rhodesia in Reg. v. Ndhlovu); alternatively (iii) March 2, 1970 (the date when the purported republican constitution purported to come into force); (5) that the registrar in making the order in aid exercised his discretion wrongly in that such discretion could never properly be exercised to give aid to, or in recognition of, a court purporting to act under an illegal constitution or acting in a country, the purported government of which had been and was acting contrary to the legislation of, and/or in defiance of, Her Majesty the Queen in Parliament; and (6) that by reason of the order in aid having been made without jurisdiction or wrongly, it could not stand and should be discharged.

On the hearing of the appeal, at the request of the court, Her Majesty’s Secretary of State for Foreign and Commonwealth Affairs, the Rt. Hon. Anthony Crosland, M.P., certified as follows: 

‘(a) Southern Rhodesia has since 1923 been, and continued 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 Officers Administering the Government, President or Ministers of Southern Rhodesia (or Rhodesia) as constituting a Government in Southern Rhodesia either de facto or de jure. June 30, 1976.’

David Sullivan Q.C. and Edward Evans Lombefor the appellant brother of the insolvent. The Attorney-General’s intervention in the appeal widens the issues of substantive law beyond the grounds relied on before the registrar. The submissions for the appellant brothers are limited to narrower points. The Rhodesian court is not a ‘British court’ within section 122, even if it was such a court before the date of U.D.I. Therefore the registrar had no jurisdiction to act on the letter of request. The concession before the registrar that it was a ‘British court’ is withdrawn. The point on ‘British court’ goes to the jurisdiction.

But even if the Rhodesian court were a British court, the registrar should have discharged his order. In Adams v. Adams (Attorney-Generalintervening) [1971] P. 188, Sir Jocelyn Simon P. decided that the English court would not recognise a decree of divorce pronounced in Rhodesia in 1970 by a judge appointed after U.D.I. though such a decree by a judge appointed before U.D.I. would have been recognised. If Adams’ case was rightly decided on that point, that is sufficient to entitle this appellant to succeed. In considering the application under section 122 there are two stages: (a) when the registrar made the order in aid in October 1974; and (b) when the appellant challenged that order and the full facts were made known to the registrar, who decided that even with those facts before him he could not go behind the two documents before him, each of which was made by a judge appointed before U.D.I. That cannot be right, for it would involve an English court ignoring all the facts drawn to its attention.

Even if section 122 is mandatory, it is mandatory only where the court is satisfied that it is dealing with valid orders from the court in another country, and the registrar could not have been so satisfied when he had been referred to Adams v. Adams [1971] P. 188, and to the facts. Although section 122 uses the word ‘shall’ it is discretionary to the extent that it cannot be applied in such a way as to override the established principles of constitutional law. The provisional order of January 28 made by a post-U.D.I. judge was the relevant order: it was the order expressly referred to in the letter of request as the root of title in the process of vesting the insolvent’s assets in the Rhodesian trustee which is in form a final order. If on the authority of Adams v. Adamsthat order goes, the second order of February 21 also goes. The court is entitled and bound to look at the effect of Rhodesian law. The effect of the provisional order under that law, like the final order, is the same as an adjudication in English law. In the English law of bankruptcy, if a receiving order is bad the adjudication order is also bad: In re Noble (A Bankrupt), Ex parte The Bankrupt v. Official Receiver [1965] Ch. 129.

In Adams v. Adams [1971] P. 188, Sir Jocelyn Simon P. drew a distinction between the situation in Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, where legislation by the rebel government was involved, and where a judicial act was involved, which is the position here. The reasoning in the Adams’ case [1971] P. 188, was right. The sovereign has imposed a legal blockade in the sense that the pre-U.D.I. judges were allowed to remain; but they will in time disappear. There is no legal vacuum. All that has happened is that by virtue of the legal blockade the effect of the judicial machinery does not run outside Rhodesia. Sympathy for people living under conditions of rebellion is not required, a fortiori where the voters have voted to continue the rebellion, and when the United Kingdom legislature is able to put right hardship by order in council as was done after the Adams’ case [1971] P. 188, by the Southern Rhodesia (Marriages, Matrimonial Causes and Adoptions) Order 1972 (S.I. 1972 No. 1718).

Louis Blom-Cooper Q.C., Peter Gibson and Christopher Bathurst for the Attorney-General. The broader issue on the appeal is whether the order in aid of October 11, 1974, and the following order of April 16, 1975, to the appellant brother to attend for examination, both made by the registrar in London, were made without jurisdiction. That they were made without jurisdiction can be supported on three separate grounds, each of which would be enough: (1) they were founded on judicial acts performed in Southern Rhodesia by persons who had ceased to bear allegiance to the only lawful sovereign in the colony; (2) they were founded on judicial acts by persons purporting to apply the laws of those in rebellion against the Crown and to give effect to the rebel law, relying on rebel constitutions, and particularly the purported republican constitution of 1969; (3) under section 122 of the Act of 1914 the judges who made the orders were not exercising powers in a ‘British court’, such a court is the place where the lawful sovereign administers justice. Even if it be a court, it is not a ‘British court’ but a rebel court.

Following the unilateral declaration of independence on November 11, 1965, and a purported new constitution (the 1965 constitution) the governor’s statement calling on, inter alia, the judiciary to maintain law and order in the colony, and the United Kingdom legislation - the Southern Rhodesia Act 1965 and the Southern Rhodesia Constitution Order 1965 (S.I. 1965 No. 1952) the appellate division of the High Court of Southern Rhodesia, consisting of five judges, considered a case, Madzimbamuto v. Lardner-Burke (1968) (2) S.A. 284, the object of which was to test the status of the rebel regime and the validity of the 1965 constitution introduced by it. The effect of the majority judgments was that the rebel regime had some kind of de facto status as the government of Southern Rhodesia and could lawfully do whatever a lawful government might have done under the lawful 1961 Constitution, but no more. When it was sought to appeal from that decision to the Judicial Committee of the Privy Council as the highest court of appeal of Southern Rhodesia, the court in Southern Rhodesia refused leave because the member of the executive, Lardner-Burke, stated that no such appeal then existed. The Privy Council therefore granted the applicant leave as of right and in July 1968 in Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, the Judicial Committee held, Lord Pearce dissenting, that the usurping government in control in Southern Rhodesia could not for any purpose be regarded as a lawful government in face of the express United Kingdom legislation - the Act and Order of 1965 - which provided that no purported law made by any person or body in the colony could have any legal effect, and that the United Kingdom legislation had full legal effect in the colony. The majority of the Privy Council held that the common law doctrine of necessity could not apply in face of the United Kingdom express legislation of 1965. Lord Pearce thought that the doctrine could apply in certain circumstances. The Privy Council decision is of high persuasive authority. It was assumed by the Privy Council that the appellate division from which the appeal came considered itself to be a court sitting under the lawful 1961 Constitution and that the majority of the judges in Rhodesia considered themselves as continuing to sit under that Constitution.

But on September 13, 1968, a court calling itself the appellate division of ‘the High Court of Rhodesia,’ the omission of ‘Southern’ being significant, made it clear that the Privy Council assumption was not well founded. In Reg. v. Ndhlovu, 1968 (4) S.A. 515, 533-535, Sir Hugh Beadle made it clear that it was no longer possible for a judge to continue to sit in the courts of the colony without taking cognisance of the fact that the rebel regime had become the de jure government and the 1965 Constitution the only lawful constitution. Further, on March 2, 1970, the rebel regime introduced another constitution, the republican constitution of 1969, which omitted all mention of the sovereign and under which oaths of allegiance were owed to the president of Rhodesia and to no one else. In the present appeal the Secretary of State has given his certificate to this court on the present constitutional position. The certificate does not say anything about the situation of the judiciary; such a statement would be improper in a certificate which is conclusive evidence on matters within the knowledge of Her Majesty’s Government, and the state of the judiciary is not peculiarly within the knowledge of the Secretary of State. [Reference was made to In re Southern Rhodesia [1919] A.C. 211 and Roberts- Wray, Commonwealth and Colonial Law (1966), p. 749.] It follows that no English court can in the face of the 1965 legislation give any recognition to any acts, administrative, legislative or judicial performed in Southern Rhodesia. No doubt in November 1965 it was sincerely anticipated that the judiciary would remain true to their oaths of allegiance to the sovereign and would not administer rebel law, and that the rebellion would be brought to an end in days or weeks; but the rebel regime has continued and the position of the judiciary changed dramatically when the judges in Reg. v. Ndhlovu, 1968 (4) S.A. 515, said that they could no longer go on under the lawful Constitution of 1961. That renunciation is of the greatest importance.

The court has to consider the legal effect in Southern Rhodesia of the law relating to the sovereign by the laws of that territory; and their legal effect in England.

Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, is conclusive on the first matter by deciding on the binding force of the 1961 Constitution and the Southern Rhodesia Act and Order of 1965; the non-recognition of the regime, either de facto or de jure; the jurisdiction of the courts, namely, that only laws in force under the 1961 Constitution would be recognised; and that the doctrine of necessity did not apply to modify the United Kingdom legislation of 1965. After that decision the judges in Rhodesia should have acted in accordance with the United Kingdom legislation. Once they said that they no longer sat under the 1961 Constitution they ceased to be Her Majesty’s judges and have become rebel judges. Though the court cannot look into their minds it can look at what they have said and done in and after 1968. [Reference was made to Van Deventer v. Hancke and Mossop [1903] Transvaal Rep. 401, 411, per Rose- Innes C.J.] Even if the sovereign is ousted from part of her territory it remains the duty of ordinary citizens, including the judges, to continue their allegiance: see De Jager v. Attorney-General of Natal [1907] A.C. 326, 328. [Reference was also made to Ogden v. Folliot (1790) 3 Term Rep. 726, 732; Dolder v. Lord Huntingfield (1805) 11 Ves.Jun. 283 ; Sprott v. United States(1874) 20 Wallace 459 and Williams v. Bruffy (1877) 96 U.S. 176.]

It is beyond dispute that the regime is a rebel regime. Since U.D.I. there have been many United Kingdom orders in council for the purpose, inter alia, of invalidating any action taken by the rebel regime, for applying sanctions with the object of forcing a return to constitutional government, and also to alleviate hardship in particular circumstances, as, e.g., the Southern Rhodesia (Marriages, Matrimonial Causes and Adoptions) Order1972 (S.I. 1972 No. 1718)which followed Adams v. Adams (Attorney-General intervening) [1971] P. 188, and M. v. R., The Times, December 7, 1971. The preamble to that order does not support the distinction made by Sir Jocelyn Simon P. between pre-U.D.I. and post-U.D.I. judicial appointments, and that distinction is not adopted, but it is an example of the exercise of the sovereign’s power to mitigate hardships revealed by the existing constitutional position. If there are gaps in the present situation there is ample power to fill them by order in council. There is admittedly hardship to the receiver in England in the instant case, but it can only be alleviated by the Sovereign in Parliament, not by the courts. The duty of the registrar is to look at the letters of request when they come to him and decide whether it is an order of a ‘British court.’

In the light of the express United Kingdom legislation the doctrine of necessity or implied mandate should not be applied to recognise the enforcement of rebel measures for the maintenance of order and good government. In his dissenting speech in Madzimbamuto [1969] 1 A.C. 645, 732, Lord Pearce accepted its application to legitimise the acts of usurpers where it was required for acts for (a) the ordinary orderly running of the state; (b) so far as they did not impair the rights of citizens under the 1961 Constitution; and (c) so far as they were not intended to and did not run contrary to the policy of the lawful sovereign. But the doctrine could only be applied to judges who remained loyal to the sovereign. Once the judges themselves became rebels, taking their commission as judges from the rebel ministers, they no longer stood aloof, entrusted by both sides with the duty of continuing to administer the law by an uneasy compromise. The three orders of the judges made in the present proceedings are all invalid, and they are not capable of recognition within Southern Rhodesia, let alone by an English court.

Assuming without conceding that the de facto recognition doctrine is still part of English law, the de facto officer’s acts cannot be validated if the circumstances giving rise to the legal defect in their position are notorious. That certainly applies to the judges in Southern Rhodesia. Moreover, the doctrine cannot apply when it is invoked to recognise a system which is itself not de jure: see Rex v. Cronin (1940) 56 T.L.R. 457. It cannot be used to validate the invalid acts of executive officers; and it cannot stand in the face of the United Kingdom legislation of 1965 which forbids recognition of any law, including a law enforced by a de facto judge operating under a rebel regime.

There are two basic reasons why an English court cannot attribute any legal effect to any of the acts of the illegal regime: (a) no acts of a government to which Her Majesty’s Government has not accorded at least de facto recognition can be recognised here: see the certificate of the Secretary of State. [Reference was made to Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853, 901, per Lord Reid]; (b) the United Kingdom Parliament may enact that ‘laws’ in force in any part of the world are not to be treated as laws by the English courts. It has so enacted in relation to the illegal regime in Rhodesia and in light of the majority view in Madzimbamuto [1969] 1 A.C. 645 nobody in Southern Rhodesia can make law, no matter how necessary it may be to preserve law and order or for any other purpose. Lord Pearce’s dissenting view at pp. 742-745 is untenable because the governor’s statement cannot affect the law, and its effect had in any event ceased by March 1970. There is no reason to distinguish between pre-U.D.I. and post-U.D.I. judges. Since 1968, and certainly since the republican constitution introduced in March 1970, the courts in Rhodesia are no longer ‘British courts’ within section 122 of the Bankruptcy Act 1914. In Bilang v. Rigg [1972] N.Z.L.R. 954, the New Zealand Supreme Court took a different view but that decision is not only distinguishable because the New Zealand position in relation to Southern Rhodesia is different from that of the United Kingdom, but it was also wrong.

Applying that law to the present case, the final sequestration order of February 21, 1974, the authorising of the issue of letters of request of April 1, 1974, and the issue of the letters of request by Sir Hugh Beadle on April 16, 1974, in ‘the High Court of Rhodesia’ are all invalid as having been made by judges who were not sitting under the lawful Constitution of 1961. A court sitting in that part of Her Majesty’s dominions under any other constitution cannot be a ‘British court’ within the meaning of section 122. It is either not a court or it is not British. It cannot be both. Sir Hugh Beadle by what he said in Ndhlovu, 1968 (4) S.A. 515 and by purporting thereafter to sit as a judge under the 1965 and 1969 constitutions ceased to be a judge of the High Court of Southern Rhodesia under the 1961 Constitution. Goldin J. in Chibi v. Minister of Internal Affairs, 1970 (1) R.L.R. 88, when he decided a point on electoral law under an Act having no legal effect by virtue of the United Kingdom order in council, sections 3 (1) (a) and 6, and by sitting under the rebel constitutions, ceased likewise to be a judge of that court under the 1961 Constitution. Beck J. by virtue of not having been appointed validly under the 1961 Constitution was never a judge de jure in Southern Rhodesia. Even if when making the orders under the pre- U.D.I. Act of 1914 they were acting under a law left intact under the 1961 Constitution, they were not acting as judges in a ‘British court’; nor can their orders have any legal validity by application of any doctrine of necessity or implied mandate. An English court can give no recognition to any of the legislative or administrative acts of a government, or the judicial acts of the courts sitting under such a government, which has not been accorded at least de facto recognition by Her Majesty’s Government; and an English court can give no recognition to a judicial act of a court in Rhodesia other than a court constitutionally appointed under the 1961 Constitution as modified for the time being by the 1965 United Kingdom legislation. The Sovereign in Parliament in effect told the judges in Rhodesia that they were to remain loyal and apply only the law under the 1961 Constitution. By their acts all the judges who remained in office after the Madzimbamuto decision [1969] 1 A.C. 645, must be taken to have joined the rebellion, and their judicial acts can therefore have no legal effect either in Southern Rhodesia or in England by virtue of the 1965 United Kingdom legislation. The registrar had no jurisdiction to grant the order of April 11, 1974, and the ensuing order of April 1975 under section 25 of the Act of 1914 is similarly void.

Peter Gibson following. In Madzimbamuto [1969] 1 A.C. 645, 732, Lord Pearce considered the doctrine, stemming from Grotius on De Jure Belli ac Pacis, Bk. I, Ch. IV, Sect. XV, of an implied mandate from the lawful sovereign for the preservation of his realm. But that cannot apply where there is express legislation inconsistent with an implied mandate. The position has to be considered at the date when the registrar dealt with the letters of request. There are three choices on recognition: (1) the recognition of all the acts of all the courts administering the law; (2) distinguishing between particular judges administering certain parts of the law, namely, pre-U.D.I. judges administering pre-U.D.I. law and those who are post-U.D.I. and administer post-U.D.I. law; and (3) no recognition of the courts at all. The third is correct. Recognition cannot be granted if the sovereign does not recognise the state.

Andrew Bateson Q.C. and Michael Crystal for the receiver. It is fundamental to the issue before the court that there was nothing in the Southern Rhodesia Act 1965 or the Order in Council (S.I. 1965 No. 1952) about the position of the judiciary, no fetter on their acts, and though, in so far as the judiciary seek to enforce post-U.D.I. legislation made unlawful by paragraph 6 of the order their judgments are nullities, the order did not alter the law existing at the date of U.D.I. So the judiciary at least in the persons of Beadle C.J. and Goldin J. were in the context of this case judges appointed before U.D.I. exercising powers under an English statute and asking for aid for the enforcement of a pre-U.D.I. Law.

The first task is to look at the Act of 1914 and construe it in the light of what was meant by ‘British court’ in 1914. Section 122, read with section 121 , indicates that the reference to ‘court’ is geographical and territorial. In 1914 a ‘British court’ included a court situate in a British colony; and section 1 of the Southern Rhodesia Act 1965 declared that Southern Rhodesia continues to be part of Her Majesty’s dominions. If Parliament had intended that for the purposes of section 122 the courts in that part of Her Majesty’s dominions ceased to be ‘British courts’ the Act or the Order of 1965 should have said so.

It follows from the terms of section 122 that the production of the two documents, an order of the court so situate, and a letter of request from that court, were all that was required to justify the giving of aid which the registrar in London gave, for section 122 provides that those two documents ‘shall be deemed sufficient.’

If it was intended that the court receiving the request should, before complying with it, carry out investigations into the complex constitutional position of the court issuing the request, the municipal law of the United Kingdom should have so stated: compare the position under the Fugitive Offenders Act 1967and the Order in Council (S.I. No. 14 of 1967)made under it which excludes Southern Rhodesia.

If on the true construction of the Act of 1914 the registrar did not have to do more than look at those two documents to ensure that they came from duly appointed judges in a British court, it is irrelevant that the provisional order was made by Beck J., who was appointed after U.D.I., for the documents ‘deemed sufficient’ do not include the provisional order made by Beck J.

If the status of the judge who made the provisional order is relevant it is conceded that if Beck J. was ‘appointed’ under the 1969 republican constitution such appointment was a nullity and he was not a de jure judge.

If the foregoing propositions are correct in law, it is an end of the case and the registrar acted correctly in making the orders he has made.

If, however, the registrar was required to undertake the elaborate investigation into the status of the court and of the judges who made the orders, it is again stressed that no United Kingdom legislation, nor order in council, has touched the power of appointment of judges nor expressly vested it in the United Kingdom government for the purposes of enforcing laws made prior to 1965. In the premises the validity of the appointment of the judges is either irrelevant, or the recognition to be given to their judicial acts is to be determined under the common law doctrine of necessity or implied mandate for the courts to preserve and enforce law and order in Rhodesia, unless the judicial acts come within the exceptions stated by Lord Pearce in his dissenting opinion in Madzimbamuto v. Lardner-Burke [1969] 1 A.C. 645, 732. It is only in the Rhodesian cases, following the distinction made by Sir Jocelyn Simon P. in Adams v. Adams [1971] P. 188, between pre-U.D.I. and post-U.D.I. appointments, that the validity of the appointment of a judge has become an issue. In the many cases following the American Civil War, where most of the judges whose judicial acts were considered in the courts were Confederate ‘rebel’ judges, it is remarkable that the ingenious lawyers of that period never took the point that judicial acts were unenforceable because the presiding judge was a ‘rebel judge.’ For the purpose of the common law doctrine of necessity the question is whether the law the judge was enforcing was necessary for the preservation of good order in a particular state engaged in civil war. In the present case, if the doctrine of necessity is to apply in deciding whether the substantive law, section 122 of the Act of 1914, should be enforced for the preservation of good order, the validity of the appointment of the presiding judge is irrelevant.

If under the doctrine of necessity the appointment of the judges is involved, the onus of showing that an appointment of a judge to fill a vacancy caused by the determination of a de jure judge’s office was not made by reason of necessity falls on the person who alleges it.

Alternatively a person who is invalidly appointed but purports to act as an appointed judge and acts judicially is a de facto judge at common law and his acts will be recognised as judicial acts just as if they were the acts of a duly appointed judge. On that point Adams v. Adams [1971] P. 188, was wrongly decided.

As the Crown provided for the continuation of pre-U.D.I. law but made no provision about the appointment of judges and expressly called on the judiciary through her governor to stay in office and enforce law and order and the judges have continued to do just that, it is difficult now to say that they are all rebel judges. It is not sought in the present case to say that estoppel can run against the Crown; but the silence of the Sovereign in Parliament is a relevant factor when considering the construction of ‘British court’ in an Act of 1914 in relation to a colony which Parliament has said continues to be part of Her Majesty’s dominions. What the judges themselves said in Reg. v. Ndhlovu (1968) (4) S.A. 515, is not effective to transfer their appointment from one constitution to another. There is no evidence that those judges changed their oath of allegiance, nor that they took another judicial oath; for the republican constitution of 1969, Sch. 4, expressly says that the judges in office at that time were deemed to continue as judges under the new constitution.

In the present case there is the clearest possible evidence of a change of mind by the judges. The order of Goldin J. and the letters of request signed by Beadle C.J., relying on his British titles of honour, are consistent only with their acceptance, in the context of the Bankruptcy Act 1914, that they were Her Majesty’s judges sitting in a ‘British court.’ Madzimbamuto v. Lardner- Burke [1969] 1 A.C. 645 is not support for saying that they have renounced their position as Her Majesty’s judges permanently and have no intention of coming back into the fold in the absence of military conquest. Their position is not generically different from that of the Channel Isles judges during the German occupation. The court should test their state of mind by seeing what they do and say in a particular case. The Crown could have made an order in council declaring that the courts of Southern Rhodesia are no longer British courts, or the Secretary of State could in his certificate for this court have stated that ‘These judges have renounced their allegiance and I am satisfied that that is so’; but the most significant point about the certificate is its silence about the judiciary. Though the decision of the Privy Council in Madzimbamuto’s case [1969] 1 A.C. 645was that in relation to legislative and executive acts effect could not be given to the doctrine of necessity because it was ousted by express legislation of the United Kingdom, four of the five opinions accepted the doctrine as available in other circumstances.

Applying the doctrine of necessity for the preservation of good order, the collection of debts from a defaulting debtor is plainly within what Lord Pearce called ‘the ordinary orderly running of the state.’ The order and the letters of request in question do not impair the rights of citizens under the lawful Constitution of 1961 nor assist the usurpers nor run contrary to the policy of the lawful sovereign where she has elected to keep silent. The only rights they seek to enforce are those under the Act of 1914. The sovereign cannot intend to make Southern Rhodesia a haven for the defaulting debtor or the criminal. It is a basic fact of life that in a rebellion ordinary life goes on and individual citizens seek to enforce their rights. If there are no Rhodesian courts debtors will not have to pay their debts. Though it is understandable why for political and diplomatic reasons it would be undesirable for Her Majesty’s Government to ask the English court to aid judges in Rhodesia who are carrying out the policy stated by the governor in November 1965, and though Parliament has created a legislative blockade, there is nothing to show that there is also a judicial blockade. Bilang v. Rigg [1972] N.Z.L.R. 954, was rightly decided, namely, that if Parliament has said nothing, the presumption is that the courts are to go on even though they may encounter difficulties in administering law and order in situations where there is no legislation covering them.

Inevitably as time passes and judges who have not resigned under the illegal regime are replaced, the enforcement of any new bankruptcy law would be a nullity under section 6 of the 1965 Order in Council. But the test is not the appointment or the oath of allegiance of a particular judge, but the substantive acts done by the person appointed. [Reference was made to Texas v. White (1868) 7 Wallace 700; Hanauer v. Woodruff (1872) 15 Wallace 439 and Horn v. Lockhart(1873) 17 Wallace 570.]

On the issue of the de facto judge, the reputation necessary for a de facto judge is the reputation arising from the exercise of judicial functions in the place where he exercises them. In The State v. Carroll (1871) 38 Conn. 449, Butler C.J. reviewed all the authorities and limited reputation to the exercise of juridical functions properly in the proper place. What he said at pp. 455 et seq. applies to the position of the litigant from Zambia before Beck J. He cannot ask the judge whether he was lawfully appointed. He has to accept the de facto position, the de facto judges exercising the duties of an office without being lawful officers. [Reference was also made on In re Aldridge (1893) 15 N.Z.L.R. 361.]

What has been done is not prejudicial to the sovereign. Beck J. was carrying out the office of a judge and was therefore a de facto judge; Beadle C.J. and Goldin J. had the reputation of judges appointed prior to 1965 who continued in office and have approached all problems on the basis that they are British judges. Their function is to administer the law between subjects and in so far as their duties are to be cut down they must be cut down by Parliament or by some act which the courts recognise as having the force of law. In a situation like the present the people come to the courts for rights in the absence of any express parliamentary sanction against their doing so, leaving it to the courts to perform their functions. Where Parliament has not expressly defined their rights the courts should enforce the pre-U.D.I. rights under the Act of 1914. The registrar’s response was correct and should be affirmed.

Blom-Cooper Q.C. in reply. Silence does not alter the law; and though at the date of U.D.I. the silence about the judiciary could have implied an intention to preserve the judicial status quo, despite the legislative and executive embargo, the court has to look at the situation now when the judges have declared their position and have remained under the 1969 constitution. That constitution includes a judicial oath by which judges ceased to be Her Majesty’s judges. That does create the ‘legal blockade’ as Sir Jocelyn Simon P. described it in Adams v. Adams [1971] P. 188, 210.

In interpreting section 122 the question is not where the court is geographically situate or even whether it is on British soil, but whether it is exercising lawful jurisdiction in bankruptcy. It appears to be accepted that if any recognition is given to the order of a Rhodesian court today, any law which is of rebel origin has to be excluded. Insolvency law in Rhodesia is Roman- Dutch law; it has been amended several times since U.D.I. The letter of request invokes aid under an Imperial Act of 1914. It would be a difficult task, which will become increasingly impossible, to dissect an order coming from the territory and recognise the parts which are lawful and reject those which are unlawful because they are of rebel origin. There is no court under the lawful 1961 Constitution called ‘The High Court of Rhodesia’; the court which made the order and sent the letter of request is not a ‘British court... having jurisdiction in bankruptcy’ in the colony of Southern Rhodesia. The order is a request from a rebel court which, however respectable, is in opposition to the sovereign and therefore illegal.

Everyone recognised that the judiciary would face constitutional difficulties after U.D.I. In the Madzimbamuto case [1969] 1 A.C. 645 the Privy Council would not have heard the appeal if the judges in the court from which it came had said, as they now say: ‘We now sit under the 1965 constitution.’ The masters of the Queen’s Bench Division have not registered any judgment from Rhodesia since U.D.I.

It would be very convenient if the rebel regime could get for themselves through their courts and their judges recognition which they have not been able to get from Her Majesty’s Government. There is no chaos in Rhodesia resulting from the constitutional position. The ordinary citizen knows that he can go to the rebel 1969 courts and get an order from a judge who may or may not be pre- U.D.I. and there is an effective government which has all the machinery for enforcing judgments in Rhodesia. But a judgment cannot be enforced, and aid cannot be given to enforce it by the courts of this country. It is true that there is an injustice and hardship to the receiver in the present case, but Parliament has the machinery for dealing with it by order in council, as it has done in other hardship cases. Until this case came to light Parliament knew nothing about it; no one knew that in 1969 Mr. Registrar Parbury had dealt with a similar case in the way Mr. Registrar Hunt did in the present case. It is for Parliament, not the courts, to remedy any injustice or fill any gap.

There is no room for any common law doctrine of necessity or implied mandate which could conflict with or derogate from the sovereign’s powers and United Kingdom legislation of 1965. It cannot be invoked in the context of a rebellion against the sovereign. When it is said that the test of necessity is only in relation to the substantive law and that the appointment of a judge is irrelevant, the answer is that substantive law has to be administered by a competent court.

The most important application of the doctrine of necessity has been where the sovereign in time of war exercises power over the property of subjects, as in Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C. 75; or to uphold the constitution which is otherwise unworkable, as in Attorney-General for the Republic v. Mustafa Ibrahim of Kyrenia [1964] 3 Supreme Court of Cyprus 195; or to supplement the prerogative power in time of war or emergency; or to assist individuals who have acted in defence of the lawful constitution. Necessity is invoked to preserve existing legal order, never to overthrow it. In the American Civil War cases only the legislation of the seceding states which themselves possessed sovereignty within the federal system of government was ever upheld. Texas v. White(1868) 7 Wallace 700, recognised necessity based on inequity: it does not support any recognition being given to anything done during a rebellion which would impair the authority of the sovereign. [Reference was also made to Liyanage v. The Queen [1967] 1 A.C. 259.]

The de facto judge doctrine is an aspect of the doctrine of necessity, to permit the enforcement of a law otherwise invalid because of some slip or omission. The de facto judge doctrine cannot apply where the defect in the judge is notorious: see Rex v. Bedford Level Corporation (1805) 6 East 356, 368-369. Anyone going to the courts in Salisbury in 1970 would know that he was going to the rebel courts and that the status of the persons who sat there was notorious. What was said in Norton v. Shelby County (1886) 118 U.S. 425, 444 applies to the present situation in Rhodesia. There is a judiciary under the 1961 Constitution in Southern Rhodesia; there can be no de facto appellate division of the ‘High Court of Rhodesia’; and the English courts cannot recognise its orders. The peculiar constitutional difficulties of Southern Rhodesia prevent this court from giving the receiver in England his just rights because orders from a court in rebellion against the sovereign cannot claim the attention of the sovereign’s courts.

Bateson Q.C. replied on the Bedford Level case, 6 East 356, and on Norton v. Shelby County, 118 U.S. 425.

Sullivan Q.C. replied on the right of the brother of the insolvent under section 108 of the Act of 1914 to say to the registrar: ‘Once you knew the facts you had no jurisdiction to make the order under section 25.’ The registrar should not have made the order for his examination.

Cur. adv. vult.

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 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 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

Before I deal with the submission, I must first state the section which gives the High Court of Justice in England any jurisdiction in the matter. It is section 122 of the Bankruptcy Act 1914. It says: 

‘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 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.

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; 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.

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 Southern Rhodesia 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.

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. 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. 457was 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: 

‘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 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.

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 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 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 IVof 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 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.

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 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 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 Madzimbamutocase (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., Quenet 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 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 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 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.

Representation

Solicitors: Kenneth Elliott & Rowe, Romford; Treasury Solicitor; Charles Russell & Co.

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. (M. M. H. )