In re NOBLE

001-NLR-NLR-V-50-In-re-NOBLE.pdf


THENEW LAW REPORTS OF CEYLON
VOLUME L
1948Present : Wijeyewardene A.C.J. and Canekeratne J.In re NOBLE.
In the Matter of an Application foe an Order under Section 68of the Courts Ordinance directing and appointing a DistrictCourt to have and exercise Sole Testamentary Jurisdictionin respect of the Property of Charles William Noble ofBr&ckenhurst Hotel, Limubu, near Nairobi in Kenya.
Courts Ordinance—Person dying abroad—Application for sole testamentaryjurisdiction—Re-sealing Ordinance—-Why not invoiced—Discretion ofCourt—Section 68.
The Supreme Court has the power under section 68 of the CourtsOrdinance to make an order conferring sole testamentary jurisdiction ineases falling within the ambit of the Re-sealing Ordinance. This power,moreover, is coupled with a duty to exercise it when called upon todo so.
In re Beresfard Bell (1948) 49 N. L. R. 186 and In re Sxcire (1948)49 N. L. R. 477 overruled.
/T~'HIS was a question reserved to a Divisional Bench by Gratiaen J.
in the following terms :■—
“This is an application for an order under Section 68 of the CourtsOrdinance directing and appointing the District Court of Colombo tohave and exercise sole testamentary jurisdiction in respect of the estatein Ceylon of Charles William Noble, deceased.
“ The deceased died at Nairobi in the Colony of Kenya on April 15,1947, leaving a last will and testament dated May 8, 1942. This will wasduly proved in the Supreme Court of Nairobi and letters of administration(with the will annexed) granted in respect thereof. Later the will wasduly proved and probate granted in respect thereof in England. The .deceased having left an estate in Ceylon valued at Rs. 53,304-34, theattorney of the executor of the deceased’s estate desires to'take stepsto have the will duly proved in Ceylon so that letters of administration(with the will annexed) may be granted to him. An order of this Courtunder section 68 is necessary for this purpose.
“ The petitioner’s application is in proper form, and would normallyhave been granted as a matter of course. Counsel has however referredme to three recent decisions of my brother Basnayake disposing ofsimilar applications (in re Beresford Bell 49 N. L. B. '136, in re Bell 37C. L. W. 16 and in re William Stoire 49 N. L B. 477). In each ofthese cases, as in the present case, probate of the deceased’s will hadbeen granted in England, and it was accordingly open to the executor
-L.
IJ. N. A 83337-1,044 (10/48)
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WIJEYEWARDENE A.C.J.—In re Noble.
or his attorney, if he so desired, to apply direct to the appropriate DistrictCourt of this Island to have the probate re-sealed under thfe procedureprovided by the British Courts Probates (Re-sealing) Ordinance—Chapter 84. My brother Basnayake took the view that when theprocedure for re-sealing under Chapter 84 is available, this Court shouldnot make an order for sole testamentary jurisdiction under section 68 ofthe Courts Ordinance, unless the applicant could assign special reasonsfor preferring to have the will proved afresh in Ceylon. Other Judges ofthis Court have however in precisely similar circumstances made ordersunder section 68 as a matter of course, taking the view presumably thatif an executor so desires, he may, instead of being content with an orderfor the re-sealing of probate, take steps to have a grant of probate in eachof the countries in which the property of the deceased is situated. Thiscertainly appears to be the position in England (vide Philip’s Probate andEstate Duty Practice (4th Edition), page 238). In the last of the abovecases decided by my brother Basnayake two senior proctors practisingin Colombo submitted affidavits stating that the alternative procedureof re-sealing or of obtaining a fresh grant of probate had always beenregarded by the profession as optional.
“ My own view is that this Court should not refuse to make an orderunder section 68 in any case where the persons entrusted with the dutiesof administering a deceased person’s estate desire to obtain a freshgrant of probate in this country rather than avail themselves of thealternative procedure open to them under the British Courts Probates(Re-sealing) Ordinance (Chapter 84). With great respect, I think that insuch cases this Court is under an obligation to exercise the powersconferred on it by section 68. My brother Basnayake has, however,in three considered judgments expressed a contrary opinion. It is clearlyunsatisfactory that the matter should be left in a state of doubt anduncertainty, and I accordingly reserve the question in terms of section 48of the Courts Ordinance for the decision of a bench of two Judges.”
H. V. Perera, K.C., with Ivor Misso, for the petitioner.
F. Tennekoon, Croum Counsel, as amicus curiae.
October 19, 1948. Wijetewardesb A.C.J.—
One Charles William Noble died, in Kenya in 1947, leaving a last willand nominating Lloyds Bank, Ltc|fe, ,as the executor. The will was dulyproved in the Supreme Court of Nairobi and letters of administration(with the will annexed) granted to one A. L. Winter, an attorney of theexecutor. Later, the will was proved in the Principal Probate Registryof the High Court of Justice in England and probate was granted to theexecutor. The petitioner has been duly appointed as Attorney of theexecutor in Ceylon to apply for and obtain from a Court of competentjurisdiction in Ceylon a grant of letters of administration (with willannexed) in respect of the estate of the deceased in Ceylon. Thepetitioner made an application to this Court for an order under section 68of the Courts Ordinance conferring sole testamentary jurisdiction on theDistrict Court of Colombo. Gratiaen J. before whom the applicationcame found the application to b§ in order and was of opinion that it was
WIJEYEWARDENE A.O.J.—In re Noble.
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one which “ would, have been granted normally as a matter of courseHowever, in view of three recent decisions [In re Beresford Bell (1948) 49New Law Reports 136 ; In re Beresford Bell (1948) 37 Ceylon Law Weekly16 and In re Stoire (1948) 49 New Law Reports 477] he referred theapplication to a Bench of two Judges under section 48 of the CourtsOrdinance.
In the cases cited above, Basnayake J. held that the Supreme Courtwas not bound to grant an application made under section 68 of theCourts Ordinance in every case where a person had died outside Ceylonleaving an estate in Ceylon and the applicant was a person entitled tomake such an application. He held that the applicant should furthersatisfy the Supreme Court that he had good reason for not adopting thespecial procedure laid down by the British Courts Probates (Re-sealing)Ordinance (hereinafter referred to as the Re-sealing Ordinance).
Now section 68 of the Courts Ordinance passed in 1889 enacts—
“ When any person shall have died at any place out of the Islandleaving property within the Island, it shall and may be lawful for theSupreme Court, or any Judge thereof, to make order directing andappointing such District Court as to the said Supreme Court, or anyJudge thereof, shall appear most expedient, to have and exercise soletestamentary jurisdiction in respect of the property of the person sodying
may refer at this stage to the subsequent Ordinances dealing with theadministration of estates of persons dying outside Ceylon.
The British and Colonial Probate Ordinance was passed in 1921providing for the re-sealing in “ a competent Court ” in Ceylon of probatesand letters of administration granted in the United Kingdom or anyBritish possession which had made adequate provision for the recognitionin that possession of probates and letters of -administration grantedby any District Court of Ceylon. A competent Court under thatOrdinance meant ct any Court appointed to have and exercise soletestamentary jurisdiction in respect of the estate in question undersection 70 (now section 68) of the Courts Ordinance.”
That Ordinance was amended by Ordinance No. 32 of 1935 by insertinga definition of the term “ British possession
As it was thought that the principle of reciprocity need not be retainedin colonial legislation with regard to the administration of estates, theRe-sealing Ordinance, No. 3 of 1937 was passed. That Ordinance repealedOrdinance No. 7 of 1921 and the amending Ordinance and came intooperation in 1940. It was in turn amended by Ordinance No. 1 of 1938which gave a new definition of “ testamentary duty ”,
The words “ it shall be lawful ” have been considered by all the Judgeswho decided Julius v. The Lord Bishop of Oxford et al. (1880) 5 AppealCases 214 cited in re Sudre (supra). In that case, a parishioner whothought that the rector of the parish practised certain ritualisticobservances in the performance of Divine Service forbidden by the Lawof the Church of England presented in due form to the Bishop of theDiocese a letter of complaint as to the alleged ecclesiastical offences andapplied to have a commission issued by the Bishop for the purpose ofmaking inquiry into the grounds of the charges or to have the case sent
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WlJEYEWARDElSne A.C.J.—In re Noble.
in the first instance by letters of request to the Court of Appeal of theprovince to be there heard and determined according to the provisionsof 3 & 4 Victoria, Chapter 86. After some correspondence the Bishoprefused the application in the exercise of his discretion. The applicantcontended that the Bishop had no discretion in the matter and that hewas under an obligation to act in the manner indicated by the Statute.The relevant provisions of the Statute were as follows :—
Section 3.—“ In every case of any clerk in holy orders of the UnitedChurch of England and Ireland who may be charged with any offenceagainst the Laws Ecclesiastical, or concerning whom there may existscandal or evil report as having offended against the said laws it shallbe lawful for the bishop of the diocese within which the offence isalleged or reported to have been committed, on the application of anyparty complaining thereof, or if he shall think fit of his own mere motion,to issue a commission to five persons of whom one shall be his vicar-general, or an archdeacon or rural dean within the diocese, for thepurpose of making inquiry as to the grounds of such charge orreport
Section 13.—“ It shall be lawful for the bishop of any diocese withinwhich may such clerk shall hold any preferment …. if he shallthink fit, either in the first instance or …. to send the caseby letters of request to the Court of Appeal of the province to be thereheard and determined ..”.
In the course of his judgment the Lord Chancellor made the statementwith regard to the meaning of the words “ it shall be lawful ” cited byBasnayake J.
“ They are plain and unambiguous. They are words merely makingthat legal and possible which there would otherwise be no right orauthority to do. They confer a faculty or power, and they do not ofthemselves do more than confer a faculty or power. But there maybe something in the nature of the thing empowered to be done, some-thing in the object for which it is to be done, something in theconditions under which it is to be done, something in thetitle of the person or persons for whose benefit the power is to beexercised, which may couple the power -with a duty, and make it theduty of the persons in whom the power is reposed, to exercise thatpower when called upon to do so …. And the words “ it
shall be lawful ” being according to their natural meaning permissiveor enabling words only, it lies upon those, as it seems to me, whocontend that an obligation exists to exercise his power, to show in thecircumstances of the case something which, according to the principlesI have mentioned, creates this obligation ”.
Relying on the words “ the circumstances of the case ” in the abovepassage, the Crown Counsel argued more or less tentatively that thequestion whether a statutory provision containing the words “ it shall belawful ” conferred a power coupled with duty should be decided byreference to the particular circumstances of each case that came up forconsideration under that Statute. It is inconceivable that the LordChancellor ever meant any such thing when he referred to “ the
WIJEYEWARDENE A.C.J.—In re Noble.
o
circumstances of the case”. He could not possibly have meant to saythat in one case the statutory provision could he construed as merelyconferring a power on the bishop and that in another case it could beconstrued as conferring the power with a duty and making it the duty ofthe bishop to exercise that power when called upon to do so. Thequestion whether a statute confers only a power or couples that powerwith a duty must be determined without reference to the facts of theparticular case coming up for consideration. If on such considerationit is found that the statute confers only a power, then the person soempowered will decide on the facts of the particular case before himhow he should exercise his discretion. If, on the other hand, the statuteis construed as imposing a duty on him to exercise that power, thenthere will be no question of the exercise of a discretion and he mustexercise his power.
The following passages in the judgment of the Lord Chancellor himselfshow that he interpreted the words “ it shall be lawful ” not by referenceto the particular facts of the case before him but by a consideration ofall the possible cases falling within the section in question.
“ The first observation which occurs upon this section is, that thewords ‘ any party ’ are words of the most general kind, and must,as was admitted in the argument of the appellant, extend to anynatural bom subject of the Queen. The appellant, who, in the casebefore Your Lordships, invokes the action of the bishop, is a parishionerof the parish of Clewer, and a member of the Church of England ; butif he is right in his construction of the statute, the aid of the bishop mightbe invoked equally by one who never had entered the parish, whonever had been in England, who was ignorant, perhaps, of the language,who was not a member of the Church of England, who was not,possibly, a believer in Christianity. If, under the statute, any personhas an absolute right to put the bishop in motion, a person may do sowho is a pauper, or wholly unable to answer the costs of the suit. Noauthority is given to the bishop to require security for costs, andthe clerk may be ruined by litigation from which he emerges as thevictor
“ Again the offence charged may be an offence against the LawsEcclesiastical, but it may be of so trifling and insignificant a naturethat no one, having any discretion in the matter, ought to allow it to bethe subject of litigation. Or the charge or the report may be onewhich, within the knowledge of the bishop, is unfounded. Or, again,the clerk may have been chargeable with a departure from authorizedritual and on the remonstrance of the bishop may have admitted hisfault and have promised to discontinue the wrong practice, and mayhave faithfully kept such promise, and yet, an offence having oncebeen actually committed, the bishop, if the argument of the appellantbe right, may be called upon to proceed against the clerk, with whoseconduct in the matter he has every reason to be satisfied ”.
The statements made by the other Judges in Julius v. The Lord Bishopof Oxford et al. {supra) show beyond the possibility of any doubt howthis question should be considered.
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WIJEYEWARDENE A.C.J.—In re Noble.
Lord Penzance said :—
“ The words it shall be lawful are distinctly words of permissiononly—they are enabling and empowering words. They confer alegislative right and power on the individual named to do a particularthing, and the true question is not whether they mean somethingdifferent, but whether, regard being had to the person so enabled,
' to the subject-matter, to the general objects of the statute, and to theperson or class of persons for whose benefit the power may be intendedto have been conferred—they do, or do not, create a duty in the personon whom it is conferred to exercise it
Lord Selborne said :—
“ The question whether a Judge, or a public officer, to whom apower is given by such words, is bound to use it upon any particularoccasion, or in any particular manner, must be solved aliunde, and,in general, it is to be solved from the context, from the particularprovisions, or from the general scope and objects of the enactmentconferring the power ”.
Applying the tests indicated above I have reached the decision thatsection 68 of the Courts Ordinance conferred a power coupled with aduty. It was the Supreme Court that was given the power by thatsection. According to the view taken in re Neath and Brecon RailwayCompany (1874) 9 Chancery 263, the use of the words “ it shall be lawful ”may in those circumstances be attributed to “ the usual courtesy of thelegislature in dealing with the Judicature”. The persons who areentitled to invoke the power of the Court are a defined class of persons.The object of the section at the time it was enacted was to enable theestates in Ceylon of persons dying outside Ceylon to be administered.Without such administration no action could have been brought for therecovery of any property in Ceylon belonging to the estate and a persontransferring the property belonging to such estate or obtaining a transfermay be guilty of an offence. A refusal to exercise that power at any timebefore Ordinance No. 3 of 1937 would have resulted in an “ injustice”and that would be a very important matter to be taken into considerationin deciding whether the statute did not impose an obligation on theCourt (videRegina v. York and North Midland Railway Company1). Thefact that the Court on which the power is conferred is the highest Courtin the land does not necessarily involve the result that the Legislaturecould not have intended to impose a duty to exercise the power. InAlderman Blackwell’s case (1683) 23 English Reports 381, the creditors ofBlackwell petitioned for a commission of bankruptcy against him and theywould have been seriously prejudiced if it had not been granted. Thewords of the relevant statute were that the Lord Chancellor “ shall havefull power and authority ” to grant a commission. It was held that theLord Chancellor was bound to exercise the power conferred on him.Approving of the decision in that case Lord Penzance said in Julius v.The Lord Bishop of Oxford et al. (supra)—
“ The right of a creditor to have his debtor made a bankrupt,though the person empowered to issue the commission was the Lord1 (1853) 118 English Reports 657.
WIJEYBWABDENE A.C.J.—In re Noble.
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Chancellor, and therefore a person in whom a discretion (if the subject
had admitted of one) might well have been reposed, was held to be one
that justice required should be exercised without discretion
Once it is found that by section 68 of the Courts Ordinance theLegislature conferred a power coupled with a duty it is not possible tohold that, as the result of an Ordinance passed 48 years later, that poweris now freed from the obligation to exercise it. An examination of theprovisions of the Re-sealing Ordinance discloses no reason for coming tosuch a conclusion.
In view of a doubt expressed by Basnayake J. in re Beresford Bell (supra)whether this Court has the power to grant an order under section 68 ofthe Courts Ordinance in a case which falls within the ambit of theRe-sealing Ordinance, we invited Counsel to address us on that question.
An application under section 68 of the Courts Ordinance is usuallymade by an Attorney in Ceylon of the executor or administrator residentabroad. The District Court appointed by the Supreme Court grants suchapplicant a fresh probate or letters of administration for local purposesafter certain formal proceedings. The formal proceedings are :—
(а)Proof of the due execution of the will and the death of the testator ;
(б)the issue of an order nisi ;
advertisement in the Gazette and a local newspaper and ;
the making of an order absolute.
The Re-sealing Ordinance dispenses with the need for these formalproceedings and replaces them by the simple act of sealing the probate orletters of administration. To that extent, the latter procedure is moresimple and less expensive than the former. Counsel for the applicant,however, mentioned certain disadvantages which, he submitted, resultedfrom the adoption of the procedure under the Re-sealing Ordinance.When a probate is re-sealed it remains in the name of the executor whoproved it outside Ceylon and this must necessarily delay and hamper thedue administration of the local estate, as the need may arise on variousoccasions to consult such executor and administrator before taking anyaction in Ceylon in respect of the estate in Ceylon. There is further theinconvenience caused by section 7 of the Re-sealing Ordinance imposingcertain obligations on such an executor. It is, therefore, obvious thatin many cases a person who has obtained probate or letters of administra-tion in a Court outside may be advised to adopt the procedure under theCourts Ordinance, though in the preliminary stages such procedure ismore expensive than the alternative one. I am unable to see any reasonwhy in these circumstances an applicant for probate or letters ofadministration should not have the option of deciding which procedurehe should adopt. The two provisions could stand together and “it iswell settled that a Court does not construe a later Act as repealing anearlier Act unless it is impossible to make two Acts or the two sectionsof the Act stand together, i.e., if the section of the later Act can only begiven a sensible meaning if it is treated as impliedly repealing the sectionof the earlier Act (vide In re Berrey, Lewis v. Berrey)x. A repeal byimplication is not favoured. A sufficient Act ought not to be held to be
(1936) 1 Cha.ncery 274.
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Catherine Perera v. Missionary Apostolic of HaVpatota.
repealed by implication without some strong reason (vide Maxwell onInterpretation of Statutes, Eighth edition, page 147).
may add that the Crown Counsel who appeared as amicus curiaeconceded that he was unable to support the view that the Supreme Courthad no power today under section 68 to deal with cases which fall underthe Re-sealing Ordinance.
hold, therefore, that this Court has the power to make an order undersection 68 of the Courts Ordinance in cases falling within the ambit ofthe Re-sealing Ordinance and that this power is coupled with a duty toexercise that power when called upon to do so, but, of course, this Courthas a discretion as to the District Court on which it will confer sole andexclusive testamentary jurisdiction.
would allow the application of the petitioner.
Canekekatne J.—I agree.
Application allowed.