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916197
SIR FREDERICK LUGARD, ON BEHALF OF THE GOVERNMENT OF HONGKONG
Y.
CHU PING.
The parties in this case agreed that it should be tried in the first instance by the Full Court, which course would have enabled either party to go direct to the Privy Council should he be so advised. Gompertz, the Puisne Judge, having previously advised the Governor on But Mr. the question involved as Attorney General, decided to challenge himself. There being no other Judge available to compuse a Full Court, 1 there- fore heard the case a.one.
The plamtill in this action as originally brought described himself nerely as H.E. the Governor of Hongkong.” laken, sloman
Objection having been
y. Governor and Government of New Zealand being relied on, and after a certain amount plaintiff ultimately described himself as "H.E. Sir Frederick Lugard, the of discussion, the Governor 6 Hongkong, for and on behalf of the Government of Hong- keng"
It appears that there is no provision in the Colony for allowing actions to be brought by the Colonial Secretary when the Government desires to sue, and therefore it has been assumed that H.E. the Governor as the head of the Government must sue personally as plaintiff on behalf of the Government. The Colony is behind the time in this somewhat elementary matter; and steps should be taken to remedy what is a highly inconvenient course, besides being improper constitutionally, and wrong from the point of view of procedure. I understand that arrangements were made for the Colonial Secretary to give discovery; but all sorts of troublesome questions might arise, a fact which it is sufficient to indicate without particularising them. But things being in this primitive state the Colony i am not prepared to say that the assumption is erroncous as a general rule, no one being empowered to sue ou behalf of the Government, if the Government has rights which it desires to enforce. Its existence is sufficiently known and recognised to warrant the state. ment that although it is not a persona in law, it may have rights capable of being enforced. I suppose somebody must sue in its behalf, and the proper person is probably the head of the Government. while this might be sufficiently accurate in ordinary cases, it raises in this case legal questions of considerable difficulty which I have done my best to solve.
But
A preliminary objection was taken that the Statement of Claim shows no cause of action or ground of equitable relief in the plaintiff, and does not sustain a claim for the relief prayed or any part thereof; 19 other words, that Sir Frederick Lugard has no right to bring this acuo. The position is this: It may be that the Government is to be imately benefitted by the agreements entered into in the case of the Praya Reclamation; but they are not entered into on its behalf, nor does the Government figure in any way in them. Therefore the simple case I have imagined of the Governor suing to enforce rights of the Government does not arise, because on the plain wording of this docu- meat it has none. Therefore, if any action can be brought on this agreement it must be brought by a party to it, or some one to whom the rights have been assigned, and Sir Frederick Lugard is not a party to it nor is he assignee of the rights. This defect in title is not cured by the addition that he is suing for and on behalf of the Government of Hongkong, for the addition amounts to nothing, and cannot invest Sir F. Lugard with a right which he himself does not possess. I must therefore treat this as an action brought by Sir F. Lugard, to enforce a cause of action, which, if it exists at all, exists in him personally: though, as the title to the action asserts, the rights which would result from a judgment would not be his personal rights, but would be obtained by him for and on behalf of the Government of the Colony. The action arises out of an agreement made in connexion with the Praya Recluma- tion, and it is difficult to state the conclusion I have come to on this technical point, without going prematurely into the merits of the case. But I think the following is sufficiently explanatory,
The Ordinance No. 6 of 1889 contains a form of agreement in the schedule which was to be entered into with Marine Lot holders who were allowed to participate in the benefits of the Praya Reclamation.
It was to be entered into by some office, for and on behalf of the Governor of Hongkong at the time, Sir William Des Vons. The agreement actually sued upon is not in the schedule, but may be said to be consequential upon the que which is.
By s. 6 of the Interpretation Ordinance 8 of 1897, where there are references in an Ordinance (which includes the schedules to it), to any public officer by the term designating his office, such term is to be hela to include the officer for the time being executing the duties of the office. I am of opinion that there being no other means of suing pro- vided by this law any action on an agreement made in the form contained in the Ordinance, must be brought by the Governor, but that
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