Bilang v Rigg

• Jurisdiction: New Zealand
• Judgment Date: 23 March 1971
• Date: 23 March 1971
• Court: Supreme Court

New Zealand, Supreme Court, Auckland.

(Henry, J.)

Bilang

and

Rigg

States as International persons Recognition Of States Rhodesia Acts of officials of revolutionary regime Whether such acts given legal effect abroad The law of New Zealand

Summary: The facts.A person died intestate in May 1969 and under the law of Rhodesia his parents succeeded equally to his estate. The plaintiff on 16 July 1969 was appointed dative executor under the Administration of Estates Act 1907 by an order made by M. L. Perry, Additional Assistant Master of the High Court of Rhodesia. M. L. Perry had been appointed under the above-mentioned Act by the Minister of Justice on 13 September 1966. On 22 December 1969 a certificate under the seal of the High Court of Rhodesia certifying the grant of administration was forwarded to the defendant, this certificate being granted by M. C. Atkinson, Assistant Master of the High Court who had himself been appointed on 1 January 1963 by the Minister of Justice. In 1965 Southern Rhodesia had made a Unilateral Declaration of Independence after which the United Kingdom passed the Southern Rhodesia Act 1965 and then the Southern Rhodesia Constitution Order 1965.

The Registrar of the Supreme Court of New Zealand, acting pursuant to s. 50 of the Administration Act 1952 (re-enacted as s. 71 of the Administration Act 1969), refused to reseal the grant of administration. The plaintiff sought an order of mandamus to compel the Registrar to reseal the grant.

Held: The issue of a writ of mandamus to compel the Registrar of the Supreme Court to reseal the grant was ordered.

(1) The appointment of Mr. Perry was made under the Administration of Estates Act 1907 which was a validly enacted statute in force in Southern Rhodesia.

(2) The act of Mr. Perry was done in the normal course of his duty as a civil servant and was in accordance with the directions of the lawful Governor promulgated on 11 November 1965 and repeated on 14 November 1965.

(3) Unless the United Kingdom legislation expressly forbade the act of Mr. Perry his grant was competent.

(4) The act of Mr. Perry was neither acting, nor supporting action, in contravention of the Southern Rhodesia Constitution Order 1965.

The following is the judgment of the Court:

This is a motion for the issue of a writ of mandamus to compel the Registrar of this Court to reseal a grant of administration made in Southern Rhodesia. The relevant authority for the resealing of such grants is s. 50 of the Administration Act 1952, which reads:

50. Where any probate or letters of administration granted

(a) By any competent Court in any Commonwealth country (other than New Zealand) or in the Republic of Ireland; or

(b) are produced to and a copy thereof deposited with any Registrar of the Supreme Court of New Zealand, the probate or letters of administration shall be sealed with the seal of the last-mentioned Court, and shall thereupon have the like force and effect and have the same operation in New Zealand, and every executor and administrator thereunder shall perform the same duties and be subject to the same liabilities, as if the probate or letters of administration had been originally granted by the Supreme Court of New Zealand.

This Act has been replaced by the Act of 1969, but nothing turns on that. It is conceded that Southern Rhodesia is a Commonwealth country. The sole question is whether or not the Court making the grant was at the time a competent Court of that Commonwealth country.

It is now convenient to set out the agreed facts:

(1) Frederick Williams died in Bulawayo, Rhodesia, on 15 May 1969.

(2) The deceased died intestate and was a single man and left no dependent children. Under the law of Rhodesia the parents of the deceased succeed equally to the deceased's estate.

(3) The above-named plaintiff Cyril Frederick Bilang, an attorney practising in Bulawayo, Rhodesia, applied for letters of administration. On 16 July 1969 an order was made in the High Court of Rhodesia appointing the plaintiff Frederick Bilang the executor dative of the estate. Such order was made under the Administration of Estates Act 1907 Chapter 51 of the Consolidated Laws of Rhodesia.

(4) The order appointing the plaintiff the executor dative of the estate was granted by M. L. Perry Esquire, Additional Assistant Master of the High Court of Rhodesia.

(5) That M. L. Perry Esquire was appointed Additional Assistant Master of the High Court of Rhodesia on 13 September 1966. M. L. Perry Esquire is a civil servant and his appointment to this post was made by the Minister of Justice under s. 3 (2) (c) of the above-mentioned Administration of Estates Act.

(6) The deceased Frederick Williams, was prior to his death, employed by the South British Insurance Company in Bulawayo and as at the date of death there was an amount of $5,150 payable to the estate by the South British Insurance Company Limited under its life assurance scheme for its employees.

(7) The constitutional history of Rhodesia is as explained in Re Southern RhodesiaELR [1919] A.C. 211 and Madzimbamuto v. Lardner-BurkeELRUNK [1969] 1 A.C. 645; [1968] 3 All E.R. 561.[1]

(8) That on 22 December 1969 the solicitors acting on behalf of the above-named plaintiff in New Zealand forwarded to the defendant, the Registrar of this Honourable Court, a certificate under seal of the High Court of Rhodesia certifying that the letters of administration had been granted on 16 July 1969. The certificate under seal of the High Court of Rhodesia was granted by M. C. Atkinson, Assistant Master of the High Court of Rhodesia at Bulawayo.

(9) That M. C. Atkinson Esquire was appointed Assistant Master of the High Court of Rhodesia at Bulawayo on 1 January 1963 and was appointed by the Minister of Justice under s. 3 (2) (b) of the above-mentioned Administration of Estates Act.

This case is just another problem caused by the Unilateral Declaration of Independence (called UDI) made by the Government in power on 11 November 1965. The United Kingdom Government took...