Attorney General of New Zealand v Ortiz
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE ACKNER,LORD JUSTICE O'CONNOR |
| Judgment Date | 21 May 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0521-2 |
| Docket Number | 82/0226 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 May 1982 |
and
and
[1982] EWCA Civ J0521-2
The Master of the Rolls
(Lord Denning)
Lord Justice Ackner
and
Lord Justice O'Connor
82/0226
1978 N. No. 1165
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE STAUGHTON)
Royal Courts of Justice.
MR. CHARLES GRAY and MR. NICHOLAS PAINES (instructed by Messrs. Allen & Overy) appeared on behalf of the (Plaintiff) Respondent.
MR. PAUL BAKER, Q.C. and MR. NICHOLAS PATTEN (instructed by Messrs. Joelson Wilson) appeared on behalf of the (First Defendant) Appellant.
MR. COLIN ROSS-MUNRO, Q.C. and MR. GERALD LEVY (instructed by Messrs. Manches & Co.) appeared on behalf of the (Third Defendant) Appellant.
The door of the treasure house
Years ago in New Zealand a great chief of the Maoris had a treasure house. In it there were stored such things as dried fish, special foods and valuable. At the entrance there was a great door. It was made of tobaro wood which is light, durable, tough, and of a dark red colour. This great door was four feet high and nearly five feet wide. It had five panels carved with exquisite skill. These depicted human figures with serpentine bodies and wide pointed heads.
This great door was lost for centuries in a swamp near Waitara in the province of Taranaki in North Island. Then in 1972 a Maori tribesman called Manukonga, whilst cutting a track through the swamp, came upon it and carried it to his home.
In the next year, 1973, there came to New Zealand Lance Entwistle. He was from London and was a dealer in primitive works of art. He got to know of this carving and went to see it. He realised at once that it was of much value. It was of the highest importance to the study of Maori art and civilsation and Polynesian sculpture. He persuaded Manukonga to sell it to him for the sum of $6,000. He took it up to Auckland and then across to New York. From there he telephoned to George Ortiz who lived in Geneva. Now George Ortiz was a collector of African and Oceanic works of art. His collection was one of the finest in the world. Lance Entwistle asked George Ortiz to inspect this carving. George Ortiz went to New York to see it. Lance Entwistle told him that it had been exported from New Zealand without a permit but nevertheless he was the owner of it and could pass a good title to it.
Thereupon, on the 23rd April, 1973, George Ortiz bought this carving from Lance Entwistle for U.S. $65,000. It was sent to Geneva by air and was kept by George Ortiz in his collection there.
In October 1977 the daughter of George Ortiz was kidnapped. In order to raise money for her release, he sent his art collection to Sothebys in London for sale by auction.
Sothebys prepared an attractive catalogue. It contained a fine coloured picture of this carving. It was the principal item in the sale. Sothebys announced that the auction was to be held on Thursday, 29th June, 1978.
This came to the notice of the New Zealand Government. Their Attorney-General at once on the 26th June, 1978—three days before the sale—issued a writ claiming a declaration that this carving belonged to the New Zealand Government and an injunction to prevent the sale or disposal of it. In the face of this writ it was agreed that Sothebys would not include this carving in the sale but would hold it pending trial or further order.
The sale was held without this carving. Enough was realised from the other items to pay the ransom. So George Ortiz does not propose to sell it now. It is said to be worth £300,000.
The case may eventualy require a hearing on disputed points of fact. But meanwhile this court has ordered that these two points be tried as preliminary issues:
(1) Whether Her Majesty The Queen has become the owner and is entitled to possession of the carving under the New Zealand Act entitled the Historic Articles Act 1962 and the Customs Acts 1913 and 1966, and
(2) whether in any event the provisions of the said Acts are unenforceable in England as being foreign, penal, revenue and/or public laws.
The defendants have also made the following concessions:
"The great majority of countries have legislation to forbid or control the export of antiquities and in many cases the sanction for any attempt to export an antiquity illegally is that the object may be confiscated".
Although this case concerns New Zealand law, I propose to consider first the English law. This is because New Zealand has inherited the common law of England: and also because its statutes and methods of interpretation are on much the same lines as our own. We use the same language—the English language—to express the same principles, to define the same concepts, and to give the same meaning.
The law of England
So far as England is concerned, whenever there is legislation providing that goods are to be forfeited for one cause or another, the law has always said that the forfeiture does not take effect until the goods are seized and that the title then relates back to the cause of forfeiture. If the owner or anyone else disputes the forfeiture, there are proceedings for condemnation. After condemnation, the title is perfected and can no longer be disputed by anyone.
That was settled in the great case of Lockyer v. Offley (1786) 1 T.R. 252. The master of the sailing vessel "Hope" smuggled 60 gallons of brandy into London. The customs officers, a month later, seized the ship and claimed her as forfeited.
Mr. Justice Willes said (at page 260):
"It has been said that under the 24 Geo. 3, c.47, and the Excise laws, the forfeiture attaches the moment the act is done…but I think the actual property is not altered till after the seizure, though it may be before condemnation…Till the seizure of the ship, it was not certain that the officers of the Crown knew of the illicit trade carried on by the master, or whether they would take advantage of the forfeiture".
In Manning's Exchequer Practice (1827), it is said (at pages 142 and 181):
"Seizures for non-payment of customs, and the like, are grounded upon a principle of the common law, applied to acts of parliament creating a forfeiture…
"The property in goods, forfeited under the excise laws, is not altered until after seizure…For some purposes, as to avoid intermediate alienations and incumbrances, etc., the forfeiture seems to relate to the act done".
From that time onwards there were many Customs Acts. In most of them, the statute simply said on breach the goods "shall be forfeited", see the Customs Laws Consolidation Act 1876, sections 106, 130 and 138: and that on seizure notice is to be given to the owner of the goods, see section 207. In accordance with the law as laid down in Lockyer v. Offley, the forfeiture was not automatic. It did not take effect until the goods were seized. Indeed, when a fresh Consolidation Act was passed in 1952, Parliament did not use the words "shall be forfeited". It used instead the words "shall be liable to forfeiture", see sections 47 to 56, and 275 to 280. Paragraph 1 of the Seventh Schedule says that:
"The Commissioner shall give notice of the seizure of anything as liable to forfeiture and of the grounds therefor to any person who to their knowledge was at the time of the seizure the owner or one of the owners thereof".
Likewise in the Merchant Shipping Act 1854 it was enacted that on certain wrongs being done "such ship shall be forfeited to Her Majesty". Here too it was held that the forfeiture took effect on seizure, but that the title then related back to the time of the wrongful act done which was the cause of the forfeiture, see The Annandale (1877) 2 Probate Division 179 at page 188 by Sir Robert Phillimore, so that any disposal of the ship in the interim was invalid and of no effect, see the same case in the Court of Appeal 2 Probate Division 218.
So also in the Mortmain Act 1888 the words "shall be forfeited" were held to mean "shall be liable to be forfeited", see Attorney-General v. Parsons (1956) Appeal Cases 421.
Works of Art
So far as works of art are concerned, the law of England rests on a statute passed on the outbreak of the Second World War. It is the Import, Export and Customs Powers (Defence) Act 1939. It gave the Board of Trade power by order to prohibit the import or export of goods of any specified description. The present order is the Export of Goods (Control) Order S.I. 1981 No. 1641. It prohibits the export (unless permitted by licence) of (amongst other things):
"Any goods manufactured or produced more than 50 years before the date of exportation", except personal property, letters, and so forth.
Section 3 of the 1939 Act provided that if any goods are imported or exported in contravention of an order under the Act "those goods shall be deemed to be prohibited goods and shall be forfeited".
Section 9(2) said that it was to be construed as one with the Consolidation Act 1876. So the words "shall be forfeited" bear the same meaning as in the 1876 Act. So the forfeiture is not automatic. It does not take effect until the goods are seized.
It is clear therefore that if works of art more than fifty years old are exported from England without permission they are not automatically forfeited. They are only "liable to be forfeited". The title does not pass to the Crown until they are seized.
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