34
---
35
635
may:
than the aggrieved lessee way or should be. Still farther, the provision that the Governor if he thinks fit, award the aggrieved lessee such a sum of money or such a Crown lease of new land as he may, in his absolute discretion, think sufficient as compensation is inconsistent with the idea of arbitration, because in a proceeding by way of arbitration the award is not made if the arbitrator or umpire thinks fit but it must be made, nor is it made according to the absolute discretion of the arbitrator or umpire but it must be made according to the very right of the matter.
And in the last place it is not likely that the Legislature would be guilty of so grave a departure from custom and precedent as to constitute as sole arbitrator an officer who is charged with the execution of the works, whose sympathies are almost necessarily be with the officers engaged in carrying out the works and against the non-assenting lessees, and who also will naturally be reluctant to make too heavy calls on the Treasury for the benefit of aggrieved lessees.
In the first place, I am inclined to think that the words used in section 7 (vi.), namely, that a non-assenting lessee shall have no claim to any compensation in respect of depreciation of his lot by reason of the works, are so clear and absolute in their signification as to extinguish not only the right of obtaining compensation by the direct award of a court of justice but also the right of obtaining it by the award of an arbitrator or in any other way. The right is wholly taken away, and there is substituted for it the chance of obtaining compensation by the grace of the Governor. Compensation is to be recovered, if at all, not ex debito justitiæ but ex gratia.
In the next place, it may be pointed out that if the Court were to hold that it has jurisdiction to inquire into the Governor's proceedings in dealing with the case of a non-assenting lessee, it would be going a long way to defeat the manifest intention of the Legislature by assuming indirectly a jurisdiction the direct exercise of which the Legislature has forbidden in very clear and definite terms.
So much for the construction of section 7 (vi.) both in itself and in the light of the other provisions of the Ordinance, apart from section 8. But it is urged on behalf of the plaintiffs that the language of this latter section lends considerable support to the view put forward for the plaintiffs as to the proper construction of section 7 (vi.). Section 8 reads as follows:-"Except as in this Ordinance provided, no marine lot-holder or other person shall be entitled as against the Crown to any damages or compensation for the depreciation or injurious affecting of his property or business caused by, or resulting either directly or indirectly from, any of the said works." It is said that the effect of this language is to convey a clear implication that section 7 (vi.) "provides" that a non-assenting lessee shall be entitled as against the Crown to damages or compensation for the depreciation or injurious affecting of his property or business by the works. But, in my opinion, the language of this enactment can receive its proper construction without making it refer to section 7 (vi.) and so, as I think, straining the language of that enactment to a sense which it was not intended to bear.
The recitals in the early part of section 7 will show that it was agreed that a sum not exceeding $180,000 was to be charged to the cost of the works by way of compensation to owners and occupiers of wharves and piers along the line of the proposed reclamation. This sum is definitely appropriated by way of compensation to this class of persons in respect of their injured interests; it may be taken for granted that this appropriation formed part of the compact or arrangement by virtue of which the works came to be executed. The title of this class of persons to this sum was complete, subject, of course, to a proper apportionment of it amongst the individual members of the class. It is probable that some members of this class were "marine lot-holders"; at any rate, if they were not, they were "other persons" within the meaning of section 8. Here then is the exception "provided by the Ordinance" to the general rule established by the Ordinance that persons whose interests are injuriously affected by the works are not to be entitled to compensation for such injurious affecting.
Even if there had not been this specific exception to which the opening words of section 8 can be taken to refer, I very much doubt whether the words in that section which refer to title to compensation are sufficiently clear and wide in their scope to control the construction of section 7 (vi.) so as to convert a mere moral claim to consideration and relief into a legal title to compensation, whether by arbitration or otherwise.
With regard to this matter of compensation to be made to the owners and occupiers of wharves and piers, it is instructive to note the procedure prescribed by the Legislature for the apportionment of the sum assigned for that purpose. The Praya Reclamation Ordinance, 1889, is silent as to the method of apportionment, but provision for this purpose was made by the Praya Wharves and Piers Ordinance, 1893. By this Ordinance, the Director of Public Works and Mr. William Danby, M.I.C.E., were appointed valuers, with Chief Justice Fielding Clarke as umpire, for the purpose of estimating the cost of the removal and re-erection of wharves and piers and of preparing a table of compensation in respect of them. No provision was made for the appearance of parties concerned before the valuers or the umpire, and I am informed that, as a matter of fact, the parties did not so appear and were not heard. It was enacted that the table of compensation was to be published, and that if any objections were made to the payment of any sums mentioned in it or if any difficulties arose in connexion with such payment, the sums in question were to be paid into the Supreme Court and the Court was to exercise summary jurisdiction for the settlement of such objections and difficulties. For this purpose, the Court was invested with power to summon before it all persons concerned and to hear and determine their claims. It appears, therefore, that even where the right to compensation was absolute and formed part of the compact on which the scheme of the reclamation works was founded, the Legislature was desirous of avoiding as far as possible the delay and expense of legal and quasi-legal proceedings.
In conclusion, I may say that, although I am of opinion that the plaintiffs have failed to establish their claim to relief at the hands of this Court, I fully indorse the language used by Fielding Clarke, J., at the end of his judgment in Ryrie v. The Attorney General supra:-"Such a power of legislation must of necessity include the power to modify, alter, and even destroy, existing rights, although of course the greatest care should be exercised that no injury be inflicted without adequate compensation." Although the legal right is taken away, yet it cannot but be a point of honour with the Governor to pay full regard to the moral right. And where such a right is alleged, I have no hesitation in saying that the claimant ought to be allowed a full opportunity of setting forth the grounds on which his alleged right rests and also of knowing and answering any facts and reasons which may be put forward in opposition to it.
The result of the views which I have now expressed is that the issue of law which has been argued before me must be decided adversely to the plaintiffs and that judgment must be entered for the defendant, with his costs of suit.
Mr. Francis ventured to remind his Lordship that in a previous case with relation to the present claim there was a very strong intimation from the Court that in any settlement to be made the costs should be taken into consideration, good, bad, or indifferent, had been given.
His Lordship-What has been done with that suit? Is it withdrawn?
Mr. Francis--It is not withdrawn; it stands on the record.