Appeal and Revision-Right of appeal-Whether decision by lower court on a
request for directions from the Official' Administrator is appealable

Conflict of Laws-Intestate succession-Property in Sudan belonging to in-
testate Coptic monk who dies when domiciled in Egypt-Egyptian law ap-
plicable-Personal law rules at Sudan do not alter conflict of law rules

The deceased was a Coptic monk who. was domiciled in Egypt. He
died intestate leaving movable property in Sudan. The Official Admlnis-.
trator was granted letters of administration in respect of the estate in Su-
dan. He applied to. the High Court for directions as to. whether the estate
devolved on the Anba Bola Convent or the next of kin. The High Court
held that Coptic personal law would determine the issue. The Official Ad-

                ministrator appealed.                                                                                   .

Held: (i) An appeal lies to. the Court of Appeal from the order of the
High Court on an application by the Official Administrator under section 15
of the Official Administration Ordinance 1928 for directions regarding the
devolution of the estate .

. (ii) The succession to. the movable property of the deceased is gov-
erned by the law of domicile, Consequently, the domiciliary law of the de-
ceased being Egyptian, the law of Egypt applies.

(iii) The Wills and Administration Ordinance 1928, section 4 is an
expression of territorial law and does not contain rules governing conflict
of law cases.

Bloxam v. Favre (1884) 8 Q.B.D. 130.

Civil Justice Ordinance 1929, ss. 2, 4, 15, 54, 168, 169 and 170.'
Official Administrator Ordinance 1928, ss. 15 and 16.

Wills and Administration Ordinance 1928, ss. 2, 3, 4, 8, 10, 11 and 52.
English Naturalisation Act 1870, s. 2.

• Court: Owen C.J., Cutter and Gorman JJ.

Appeal

Advocate: The Advocate Genera! .. for appellants

April 26, 1932. Owen C.J.: I have some preliminary observa-
tions to make. I have had an' opportunity of. reading the judgement of.
Judge Cutter, and it is necessary that I should explain as shortly as I
can why I am not able to agree with him in the conclusion ~t he
has reached, namely, that no appeal lies to this court from the decision
of the Judge of the High Court, as that decision was in effect an order
on an application for directions.

In my opinion, the fact that the matter was brought before the
court pursuant to an application in which the words "directions as
to how the estate shall be administered and distributed" were used
has no bearing on the question as to whether an appeal lies from a
decision taken by the court under it. What must be looked at is
the actual decision itself and the circumstances in which it came to
be made.

In this matter the Official Administrator was faced with the
claims of two contending parties to the proceeds of the estate he
was administering. The decision as to which of these two parties
were entitled to it could have been taken by the Official Administrator,
but, acting under a very proper discretion he did Dot do so, and
referred the issue to the court, having first obtained the permission
of the court to present to it the views of one of those claimants.
The matter was then dealt with in a form which enabled the parties
to prosecute their claims to the estate formally in court, namely, as a
suit, and it was as a suit that the learned Judge treated it. In his judge-
ment he says, "The parties have agreed that the primary issue for
determination is: admitting for the purpose of argument that, under
the personal law of the deceased, the estate devolves on intestacy to
the monastery, is such law applicable in this country?" A point of
law was submitted for his decision, and upon that decision depended
the ultimate destination of the estate. It would be an abuse oLthe
meaning of the word to say that a decision on such a point was an
order giving directions.

The power enabling the Official Admministrator to submit the point
to the court for decision is given him by section 15 of the Official
. Administrator Ordinance 1928, and it was - under that section that
the application was made. The powers of the court in matters relating
to the administration of estates are set out in the Wills and' Administra-

tion Ordinance 1928, section 11 of which confers the like power and
authority as are vested in it in relation to any civil suit, and for the
powers of a court in civil suits, the Civil Justice Ordinance remains
the authority.

The next point for consideration is the decision itself. It was
in the form of a declaration that, on the .issue set out, the learned
judge found in favour of the monastery. In other words, it was a
declaration that, subject to the provisions of Coptic Law, the estate
in the hands of the Official Administrator should be handed over to
one of the parties to the . issue. In my opinion this was a decree,
preliminary, .it is true, but none the less a decree. It was (following
the words of section 4 (4) of the Civil Justice Ordinance), the formal
expression of an adjudication which, so far as regards the court ex-
pressing it, conclusively determined the rights of the parties wi\h regard
to the matter in controversy in the suit. The matter in controversy
was a point of law expressly submitted by the Official Administrator to'
the court for adjudication in the form of a suit by claimants to the
property. That adjudication was a decree from which an appeal &s.                                                                        

It is said finally that the Official Administrator as such has no
right to present the appeal, but, having regard firstly to the fact that
in the court below he was expressly permitted to present the view
of the party against whom the decision ultimately went, and secondly
to the fact that the issue raised an important question of law in the
matter of administration of estates generally, I am of opinion that
the Official Administrator was entitled to consider himself a person
aggrieved and to submit the appeal in the way he did.

For the above reasons, I consider that this court is erititle(' to
hear and determine the matter raised upon appeal, and 1 shall there-
fore proceed to the consideration of the substantial point -of law in-
volved in it.

Gommos ~do Ibrahim was a Coptic monk attached to the mon-
astery .of Anba Bola at Esneh, Egypt, and when he died intestate' at
Cairo in 1928 he left about' sixty pounds worth of movable property
in the Sudan where apparently he had spent some years of his life. At
the tinfe- of his death, however, he was an Egyptian national, domiciled

  in l;(gypt.                

Letters . of administration of the Sudan estate of Gommos Abdo
Ibr¥tim were applied for and granted to the Official Administrator.

There were various claimants to the property; but this appeal is con-
cerned with only two of them, namely the next of kin, and the monas-
tery, who claimed it by virtue of an alleged rule of Coptic Religious
Law whereby all property acquired by a monk during his membership
of the communion passes on intestacy to the brotherhood, to the
exclusion of the heirs otherwise. lawfully entitled.

The court administering the estate was the High Court, Khartoum,
and on December 3rd,. 1931 the Administrator General moved the
court for directions as to its lawful distribution, arguing that, even
though it were shown that according to the personal law of the deceased
the estate devolves upon the monastery on intestacy, the provisions
of Wills and Administration Ordinance 1928 are such that devolution
in this country is restricted to the next of kin only, and, alternatively,
that it would be repugnant to our law to admit the right of a monas-
tery to take in intestacy to the exclusion of the next of kin.

The learned judge held against him on both' points. Relying
upon section 4 of the Ordinance, he found in favour of the monastery,
and concluded his judgement or direction with the words: "and now
it remains for them" (the monastery) "to satisfy me that the estate.
devolves upon them in intestacy under the Coptic Personal Law."

From this decision the Administrator General has appealed,
say that section 4 must be read with sub-sections (iii) and (xvii)
of section 2, which make it plain that the estate must necessarily
devolve on the next of kin, in spite of any rule of personal law which
enables property to devolve to a monastery or other body corporate or
impersonal.

These sections read as follows:

"Section 2 (iii)-"person" includes any company or associa-
tion or body of persons whether incorporated or not."

"Section 2 (xvii}-"next-of-kin" includes:

(a) any person upon whom any part of the estate devolves;
(b) the guardian appointed or recognized by the court of such

                      person who is a minor;                                                       .

( c ) the person entrusted by competent authority with the estate
of any such person who is of unsound mind;'

(d) the duly authorised agent of any person described in sub-
sections (a) (b) and (c) above who shall be absent from

                     . the Sudan or incapable of acting."

"Section 4-Subject to thevalid provisions of the will, if any,
of the deceased his estate shall devolve upon the person or
persons and if more than one in the shares and for the interests
in which it would devolve according to his personal law or ac-
cording to any valid custom which mlQ' be shown to apply to the
deceased. Provided always that, subject to the valid provisions
of the will, if any, of the deceased, his immovable property situated
in the Sudan shall devolve as if it were movable property."

It will be seen that both the Administrator General and the Judge
of the High Court have assumed that section 4 indicates the principle
upon which this property should be distributed, and the important
point that arises is a consideration of the extent to which, and how that
section is applicable. to the facts of this particular case.

It is not applicable at all. Section 4 is an expression of the local .
or internal law of this country .. It does not and cannot apply to those
whose personal law has been administered during their lifetime by
the courts of another country, courts which have acquired jurisdiction
by reason of domicile or nationality. Devolution by reference to
personal law is necessary in this country to enable our courts to apply
to those non-Moslems domiciled in it the rules of the personal law
of their religion, community or nationality. It has .its counterpart in
few other countries, and its necessity is brought about by reason of the
settlement here of many foreigners of different nationalities and reli-
gions and for whom it has been found inexpedient or impossible to
provide a universal rule. The expression "according to his person~
law or according to any valid custom which may be shown to apply
to the deceased" seems to me plainly enough to be nothing more than
a statement of our local or internal law, but the Judge of the High
Court seems to have thought, and the learned Advocate General
sought to argue, that it is more, that it is also a statement of the
Sudan rule of the "choice" or "conflict" of law, and that we are en-
titled to apply his personal law or "any valid custom" in the devolution-
of his estate, whether an intestate be domiciled in the Sudan at the time
of his death or not, or whether he had ever been near the country
at all in the course of his life.

The fallacy. of the argument seems to me to arise from a mis-
apprehension of the meaning of the expression "personal law." By
personal law is meant the law governing personal status and capacity.

Every law-giving nation legislates personal law for its own subjects.

The law of devolution is part of personal law, and it must be deter-

mined by reference to the laws of the country whose courts had'
jurisdiction in questions of the personal status of" the deceased during
his lifetime. It is the law of the deceased's domicile or nationality
which determines his personal law, and the rule of conflict of law must
therefore contain one of these two expressions. You cannot state the
rule of conflict of laws by reference to personal law. It merely begs
the question, which is, "how is the' personal law to be determined?,'
If any test other than domicile or nationality is applied, there is the
danger of loss of that unity of administration, which though not always
possible, is eminently desirable.

. The English rule is that domicile decides the law of devolution
on intestacy. The Italian rule is that nationality decides it. In this
country we prefer to be guided by English Law, and I see no reason
for saying thai the test of domicile is not the correct one. In my
opinion it is the correct one, and a proper statement of the Sudan
rule would be that devolution of movables on intestacy is governed by
the law of the country where the' deceased was domiciled at the
time of his death.

For the above reasons I think that the learned judge was wrong
when he 'said that it only remained for the claimants to satisfy him
that the estate devolves to the, monastery under Coptic Personal Law.
What he should have' applied was Egyptian Law, the law of the
deceased's domicile, and the point of repugnancy might well await
decision when the Egyptian Law of devolution in such circumstances

           had been ascertained.                                                  

. To that extent therefore, I think the appeal should be allowed.

Cutter J.: In my view this appeal should never have come to
this court in its present form, and I do not think the appellant has
any right to be heard.

The Official A~strator was granted by the High Court .letters
of administration of )fie estate in the Sudan of a Coptic monk who
died intestate in E$YJ>t. Several claims were put in and the Official
Administrato~., 'W (, was administering the estate, petitioned the High

. Court for an 0 der for directions. It is from such order for directions
'that the 061'· al Administrator now seeks to appeal.

It js' true that the order was given in the form of a decree, but
it must remain an order of court notwithstanding. The Civil Justice
Ordinance lays down in what cases an appeal shall lie: to the Court of

Appeal. 'Sections 168 and 169 deal with appeals from decrees. Sec-
tion 170 enumerates in what cases an appeal shall lie to the Court
of Appeal from an order of a court. No appeal lies from any order
not included in this section, unless expressly provided for by rules.
An order on a petition for directions by an' administrator is not in-
cluded 'in this section. Nor can I find any rule, either under the
Civil Justice Ordinance nor the Wills and Administratio? 'Ordinance
1928, which expressly allows such an appeal. Section 10 of the Wills
and Administration Ordinance says "SUbject to any rules made under
this Ordinance the' court which has, granted' probate or letters of
administration shall have exclusive jurisdiction in matters relating to
the administration of the same estate." I can find 'nothing in, the
Probate and Administration Rules which suggests that matters may
be taken to the Court of Appeal.

Section 15 of the Official : Administrator Ordinance gives, the
Official Administrator 'the right to apply to the court at any time
and Section 16 gives the same right to any person aggrieved by the
act etc. of the Official Administrator, The court referred to is ob-
viously the court administering the estate, and there is nowhere in

'ibis Ordinance or in the rules made thereunder any reference to a
right to appeal. The right to appeal surely belongs to the person who
considers himself .aggrieved by the decision of a court. In, this case
the Official Administrator has no interest in the assets. He merely
applied to the court for directions in order to safeguard himself. He
cannot be said to be aggrieved at the order made. However important
the point of law at issue, I do not think the Official Administrator has
the right to plunge the estate into further expense by, appealing to the
Court of Appeal. If' one of the claimants considers .himself aggrieved
by the order of the court, or the act of the AdIDinistrator acting thereon,
he has his remedies, but in my view the Official Administrator is bound
to carry out the order for which he has asked.

I;tfr the foregoing reasons I am of opinion that the "appeal should
be dismissed.

Gorman J.: I agree with the judgement of the Chief Justice.

A preliminary point as to the competence of this court to hear
this appeal was raised, not by any of the parties, but, as is right and
proper when a question of jurisdiction is involved, by the court itself.
On consideration, however, I am in agreement with the Chief Justice,
that the court is competent to .hear the appeal.

_ The proceedings in this case started, in accordance with section 14
of the Wills and Administration Ordinance, with a petition for a
grant of Letters of Administration by the Advocate General acting
by virtue of the powers conferred on him as Official Administrator by
the Official Administrator Ordinance 1928.

In my view this was equivalent to the commencement of a suit
in respect of the estate: for by section 54 of the Civil Justice Ordinance
it is provided that, "Every suit shall be instituted by the presentation
of a written plaint or in such other manner as may be prescribed:" and
by section 11 of the Wills and Administration Ordinance 1928 that
"The Court shall have like powers and authority in proceedings for
the grant of probate or letters - of Administration and proceedings re-
lating to the administration of estates and all matters connected there-
with as are vested in it in relation to any civil suit or other matter
pending in it."

This quasi-suit having commenced, it is 'hot concluded merely
by the grant of the letters prayed for, but the estate continues until
the overriding control that the court retains' over the administration
is finally relaxed. This is reflected in the practice of the court c1
giving the estate a file number when the petition for-grant of probaIc
and letters is presented, just as if it were a suit, and of bringing an .
subsequent matters which come before the court (during the adminis-
 tration) under this same number.

When therefore the Official Administrator applied to the court
for directions, as' he was entitled to both under section 52 of the
Wills and Administration Ordinance and under section 15 of the 0ffi-
cial Administrator Ordinance 1928, the court had, under section 11,
"Such powers relating thereto as are vested in it in relation to any
civil suit in it." / What in fact was applied forfn this particular case
was in the nature of an interlocutory decision on a point of law
arising in the administration, and what the court did was consonant
with this view of the application, for it proceeded to summon the
Pary1c!s interested in order that the various views as to the point of la~
that had arisen might be heard and determined, and on October 14,

Jf931 we find the Official Administrator urging that "a hearing of this
suit" should not be postponed, but that he should be allowed "to put
forward the case" of one of the parties unable to' attend on the day -
fixed, and on October 17, 1931 we find the judge agreeing to this
course; Therefore, though the pronouncement of the learned judge
is entitled a "Direction in the administration of. the estate of Gommos

Abdo Ibrahim, deceased, HC/Est./33/1928," it has by reason of the
. step leading up to it the appearance, and by virtue- of section 11 of
the Wills and Administration Ordinance the effect of a preliminary
. decree, . and as such can be the subject of an appeal" the estate
amounting to more than £E.50. Cf. sections 168 and 169 of the Civil
Justice Ordinance.

Further, having regard to the very wide language of section 15 of
the Official Administrator Ordinance, I think the Advocate General
could claim to prosecute this appeal in his own right, notwithstanding
that he is not pecuniarily "aggrieved" by the directions given. As
representing one of the parties he clearly can be heard.

It is however said that, even if this is so, the court which has
granted probate and letters of administration has by section 10 of
the Wills and Administration Ordinance exclusive jurisdiction in matters
relating to the administration, and therefore this court' cannot inter-
fere. \ There is no substance in this argument. A Court of Appeal
or Court of Error does not interfere with the jurisdiction of courts
of first instance, but merely corrects their errors or maintains their
judgements. Section 10 of the Wills and Administration Ordinance
has obvious preference to sections 8 and 9, which deal 'with the
competing local jurisdictions of courts of first instance.

I therefore think the court has jurisdiction to hear the appeal.

As to the substance of the appeal, the law of any country
is the sum of the rules applied by the courts of that country, but
it comprises two distinct sets of rules. In the first place it comprises
what may be called the "territorial law" of the country, the local
law, the principles applied by the courts in the normal type of case
on which they are called upon to adjudicate, viz: cases in which the
parties are nationals of and resident in the country, and the subject-
matter something wholly contained within the territorial limits of the
State. In the second place it comprises a body of rules which lays
down the limits within which the territorial courts may exercise juris-
diction, and further lays down what system of law is to be looked
to as governing the .matter in dispute, when that matter involves a
foreign element, whether the territorial law or some foreign system,
and, if so, which. The necessity for these rules as to jurisdiction and
choice of law has arisen in each state from the pressure of modern
conditions or international intercourse, and it is very desirable that
they should be as nearly uniform from state to state, as the diversity

of their ongms will allow, and consequently judges in all countries

when called upon to formulate such principles ate accustomed to have
regard to the general current of international opinion on such. matters,
as represented by the writings. of jurists of repute.

It is undeniable that a legislature might, in defiance of all the
rules of the jurists and in disregard of international convenience, enact
a peculiar rule or set of rules to be applied by the local courts in cases
involving a foreign element, but it is the practice of judges every-
where--and we shall see later that it is certainly the practice of the
English Judges-to lean against interpreting a statute in a sense which
would make it conflict with the principles of private international law,
unless such an interpretation is the only possible one according to the
canons of construction.

The courts of the Sudan have not of course to any extent a par-
ticular body of jurisprudence on these matters, but the common law,
to which we are accustomed to look for guidance, is rich in such rules.
In reference to the. present case, the facts of which I need not repeat,
the rules accepted by the common law as applicable will be found con-
veniehtly summarised.itogether with the authorities in Dicey's Conflict
of Laws, 4th ed., pp. 340-356 and 749-751. . In the first of these
passages will be found the rules as to the limits of the jurisdiction in
matters of administration and succession; these need not detain us,
as it is admitted by the parties (as it is clear on the authorities) that
the Sudan Courts have jurisdiction to grant letters of ·administration
over and to decide questions as to the succession to a mortgage charged
on land in the Sudan, notwithstanding that the deceased owner of
the mortgage was neither domiciled nor resident in the Sudan at the
date of his death.

In the second passage cited there will be found the rules regulating
the choice of law in cases of succession by a court properly seized
of jurisdiction. In case of intestacy, the rule is that the court having
jurisdiction to pronounce as to the succession of a movable will
. pronounce according to the local or territorial law of the place of
domicile of the intestate at the date of his death, and without reference

to the law of the country in which the movable was at the date of his
death. In the present case the deceased was undoubtedly a domiciled
Egyptian at the date of death. Therefore in the absence of any
Sudan legislation to the contrary, the Sudan Courts will order distribu-
tion of the mortgage money in accordance with the Law of Egypt
applicable to the facts of the case. But the Advocate General calls

our attention to section 4 of the Wills and Administration Ordinance
1928.

According to the Advocate General, we are to give full effect to
the generality of the language used in this section, and we must read
it as legislating for every case in which the Sudan courts have jurisdic-
tion to determine the succession on intestacy, and that it would be
wrong to read the section and the Ordinance as declaratory merely
of the territorial law of the Sudan, and as such to be applied by the
Sudan courts not in every case in which they have jurisdiction to
pronounce as to the succession; but only in those cases in which by the
accepted principles of private international law the Law of the Sudan
is the proper law by which the rights of succession are to be deter-
mlned, i.e. why only where the deceased was domiciled in the Sudan
at the date of his death. The Advocate General further urges that
the term "personal law" in the section means the law which would
be applicable, if the deceased had died domiciled in the Sudan, i.e. in
this case, Coptic Personal Law, so far as the same is not repugnant
to the principles of justice and equity as interpreted by these courts.
The judge in the court below acceded to these arguments, though
he differed from the Advocate-General on a matter subsequently aris-
ing, but which need not be considered at this stage though it was
the occasion of this appeal.

To take the second of the Advocate General's points first: It is
undoubtedly the case that where the Sudan courts are dealing with a
person domiciled or ordinarily resident in the Sudan, the expression
"personal law" is taken to mean the law of the particular community
or religious sect to which he belongs, and,. so far as I know, there
is no other authority than this· very enactment that warrants the
courts irr applying the law or custom of a community in such cases,
and so I think the Advocate General's interpretation must be accepted
on this point. It might have been argued against the Advocate General
that the expression means, at any rate in respect of a person domiciled
in a civilised country other than the Sudan, "the law of the domicile,"
and that no more regard should be paid in such a case to the
peculiar custom of a sect than was accorded thereto by the territorial
law of the domicile. While I am inclined to think that that would be
the proper interpretation to give to the words as a rule, I do not
think they can be given that meaning in this particular section of this
Ordinance. They clearly have quite a distinct and other meaning
in respect of a person domiciled in the Sudan, and it would be against

all rules of' interpretation to give to the one expression two entirely
.different meanings according to such a criterion.

But if we agree with the Advocate General on this point, it in-
volves disagreeing with him on his first point, for if we seek to ~pply
section 4 to the case of a person domiciled abroad at the date of his
death, and give to the words "personal law" the meaning contended
for, we should have an Ordinance which ran counter to the principles
of international law as understood in England atjd the Sudan. The
only alternative is to hold, if possible, that the'! Ordinance has no
application save in respect of persons dying domiciled in the, Sudan.
In Bloxam v. Favre (1884) 8 Q.B.D. 130 a somewhat similar question
arose as to whether section 2 of the Naturalisation Act 1870, per-
mitting an alien to acquire property in the same manner as Englishmen,
extended to permit by the law of England an alien to acquire in
England property by a mode not permitted by the law of his domicile.
Sir James Hannen, President, in holding that the statute did not so

--apply said, "These results appear to me so unreasonable that I must
reject them unless the words are incapable of receiving a construction
more in harmony with well-established principles. Maxwell says in
his work on the Interpretation of Statutes, p. 122 that every statute
is to be so interpreted and applied so far as its language will permit
as not to be inconsistent with the comity of nations or with the well
established rules of international law. This passage expresses the rule
of construction which is applicable to the. present case. I think
another very clear and satisfactory meaning' may be found for the
language used. . .. The object of the enactment was to do away
with the disabilities of aliens . . . as far as English Laws were con-
cerned, but leaving them still subject to the laws of their own country
and the general principles of Private International Law on the subject
of domicile which have been recognized by all tribunals."

Now applying this principle to the present case, it can shortly
be said that there is nothing in the present Ordinance' to prevent it
being interpreted as a law of purely local application, and indeed there
are certain indications that the draftsman had only such an application
in view: for example in section 3 the exceptions have reference to
certain communities "inhabiting the Sudan;" again in section 8 the
language of the proviso is so wide that, unless it be supposed' that the

. draftsman was assuming that the 'Ordinance had a limited scope(,
merely; the results would be not merely unreasonable but fan, ta, S,ti9~':
for, the jurisdiction of the High C~urt being the whole of the