PUBLIC RECORD OFFICE
| | | | | | | | | | | | | | | | ||||
Reference :-
C.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
2
(2.) That the consensus of the parties could not confer a jurisdiction not provided by the Order in Council, and that the assessment of the value of the property by a jury instead of being determined by the Chief Justice exclusively rendered the proceedings void ab initio.
(3.) That the jury was misdirected by the Chief Justice, inasmuch as he directed them to dismiss from consideration the estimate furnished by the Colonial Engineer and the Colonial Treasurer, and further that the contingencies put forward by the Attorney General were too remote to be estimated.
(4.) That while rejecting the evidence of the gentlemen mentioned, the Chief Justice appeared to have admitted as of approximate value the estimate furnished by Mr. Ruggier, a Maltese foreman or clerk of the works in Her Majesty's dockyard who valued the land, which cost 3607., at 3,000l., and that he failed to grasp and place before the jury the import of the evidence of Mr. Sords, the surveyor of the Royal Engineer Department; and
(5.) That the award was in sterling and not in the currency of the Colony.
That Mr. John Bramston was further to request that we would advise whether, under the circumstances of the case and the provisions of the Order in Council, a suit for specific performance could be maintained by Mr. Imossi against the Governor, if the latter refused to accept the valuation of the jury and to complete the purchase of the property.
In obedience to your Lordship's commands, we have the honour to
Report
That we have grave doubt whether under the circumstances stated it was competent to summon a jury to assess the compensation in question. In the absence of application by one of the parties, we are of opinion that under clauses 25 and 57 of the Supreme Court Consolidation Order, Gibraltar, 1888, the question should have been determined by the Chief Justice without assessors or jury. It is stated at page 3 of Mr. Bramston's letter of the 18th August that the Chief Justice directed the jury to be summoned. We do not understand under what clause of the Order the Chief Justice gave this direction, and we doubt his jurisdiction to give such a direction, but for the reasons herein-after stated, we do not advise any attempt to set aside the assessment on the ground that the summoning of a jury was improper.
Assuming the court and jury had jurisdiction there was not, in our opinion, any misdirection or misreception of evidence, nor is the objection that the verdict was returned in English money well founded, and no appeal. would be entertained on any of the above grounds. We are of opinion, that, having regard to the terms of clause 11 of the acquisition of Lands Order Gibraltar, 1888, and clauses 41 and 42 of the Supreme Court Order, 1888, no appeal lies to the Privy Council except by leave of the Privy Council under clause 44 of the Supreme Court Order.
In our opinion no steps should be taken to contest the amount; the estimate formed by Captain Buckle was clearly based on insufficient data, and the reasons now given in justification are not, in our judgment, satisfactory. The amount assessed was probably too high, but, after what has occurred, we do not see any probability of any very substantial reduction in the event of an assessment before the Chief Justice.
In our opinion Mr. Imossi cannot successfully take proceedings to enforce completion of the purchase unless possession has been taken or a formal notice to treat given.
If it is necessary to acquire the land we advise that the amount assessed should be paid.
The Right Hon.
Lord Knutsford, G.C.M.G.,
We have, &c.,
(Signed)
RICHARD E. WEBSTER:
EDWARD CLARKE.
19,447.
}
No. 191.
(GIBRALTAR.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
We were honoured with your Lordship's commands signified in Mr. John
Royal Courts of Justice, Bramaton's letter of the 12th ultimo, stating that he was directed by your Lordship to
October 2, 1890. transmit to us a copy of a despatch from the Officer Administering the Government of Gibraltar, enclosing a memorial from Peter Orfila and others praying for compensation for damages caused by the fall of a wall upon the Memorialists' premises.
That the facts of the case were fully set out in the accompanying copy of the judgment of the Judicial Committee in the appeal of the Sanitary Commissioners of Gibraltar v. Orfila and others.
That Mr. John Bramston was to refer us to a report from the Law Officers dated 9th October 1875, stating that a petition of right would not lie for mere negligence on the part of the servants of the Crown, and to request that we would be good enough to advise your Lordship whether, in our opinion:-
1. The Colonial Government are liable to the present Memorialists for the damage occasioned by the fall of the wall in question?
2. The Memorialists can recover compensation by petition of right or other process, there being no special Ordinance prescribing any mode of procedure.
In obedience to your Lordship's commands, we have the honour to
Report
1. We are of opinion that the Colonial Government are not, upon the facts before
us, liable for the damage occasioned by the fall of the wall in question.
2. We are of opinion that the Memorialists cannot recover compensation by Petition
of Right, or other process.
The Right Hon.
Lord Knutsford, G.C.M.G., &o. &c. &c.
We have, &c., (Sgned)
RICHARD E. WEBSTER.
EDWARD CLARKE.
&c.
&c. &c.
P
61207-27 25.-10/90.
5
J