R
PUBLIC RECORD OFFICE
Reference :-
TTIC.O.8
.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
16 PUBLIC RECORD OFFICE, LONDON
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proclaimed (the Chief Kapeni being principal signatory), ceded to Her late Majesty for Herself and Her heirs and successors all their sovereign rights, including all niinerals and mining rights" absolutely and without reserve.
That Sir H. Johnston proceeded in the course of the year 1892 to carry out his instructions and to issue certificates to those claimants whose claims he decided to would be found annexed approve. That a specimen of these "Certificates of claim
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to the judgment. That it would be observed that by its preamble it purported to
grant to claimants whose title should be proved to be true and just
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to that effect.
a certificate
That it was further material to observe that areas which were derived from certain chiefs might present special conditions for consideration. Thus one of the transfers attached to the record of the Court was from Makmia to Sharrer, and Makmia in a deed of cession of sovereign rights to Her late Majesty's Government. dated 11th May, 1892, specially reserved the lands rights and titles already sold by him.
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That the provisions of the "certificates of claim" to which it appeared to you to be material to draw our attention are the following :-
(1) That the claimants are asserted to have purchased an estate in fee
simple."
(2) That the Commisioner declares in each case that he has ascertained that
there are no valid counter claims to the possesion of the said estate,' and that the vendors (the chiefs in question) were the sole and only original owners of the land on which the said estate was situated.
(3) That one of the conditions on which the certificates were granted was that on all minerals, metals, and precious stones obtained from the said estate, a royalty of five per cent. ad calorem should be paid to Her Majesty's Government.'
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That it would be observed that in delivering the judgment of the Court of First Instance, Judge Nunan, on these facts, apparently in order to account for the inter vention of the Crown, suggested :-
(a) That by the proclamation of a Protectorate the Crown must be deemed to have received from the chiefs a grant of all the land included in the Protectorate and so to have become the sole owner.
(b) That these persons, who, holding land on a conveyance from the chiefs. came to the Commissioner to obtain a certificate, must be deemed to have surrendered any rights they had to the Crown, and to have taken a re-grant at the hands of the Crown.
That, arguing from this theory as to the position of the Crown, the Judge held that the prerogative of the Crown in respect of Royal mines attached ipso facto to the lands, so that the certificates of claim affected only the base minerals, and he gave judgment accordingly.
That at
That the Court of Appeal reversed that judgment upon the ground that there was no evidence whatever to support the fiction of a surrender and a re-grant, and that it appeared to you, as at present advised, that this view was correct. the same time the issues raised have suggested questions which were not free from difficulty.
That it would be observed that the British Central Africa Order in Council of 1902, assumed the existence of Crown lands. That, presumably, these lands were lands acquired from time to time by specific cession from the chiefs, or by purchase or other special arrangement; and that it could not be successfully argued that the conception of Crown lands necessarily went back to the first Proclamation of the Protectorate and implied the assumption by Her Majesty of ownership in unoccupied lands.
That, again, it would be observed that condition 4 of the certificate of claim specifically recognises the right of the Crown to levy a royalty" on all minerals, metals, and precious stones," and this fact appeared to raise the question whether the term "royalty "implied that the Royal Prerogative did in some manner attach to the lands. That in this case the answer to the argument, upon which Mr. Nunan's judgment was based, appeared to be that the stipulation satisfied the Royal pre- rogative.
That, as the Judge of the Court of First Instance has strongly urged that His
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Majesty's Government should appeal to the Judicial Committee of the Privy Council against the judgment of the local Court of Appeal, you would be glad to have our opinion upon the following points :-
(1) Whether the Crown on the assumption of a Protectorate can be considered to have placed itself in the position of being the true source of title to all lands in the country protected?
(2) Whether there is any ground for the theory that, in examining into land claims shortly after the assumption of the Protectorate, the Crown accepted a sur- render of all such claims and re granted them subject to the ordinary conditions which might attach to a grant of the Crown in England?
(3) Assuming the answer to the previous question is in the affirmative, whether the Royal prerogative with regard to Royal mines can be taken as having attached to the lands?
(4) Whether the express reservation of a royalty to the Crown by a special con- dition in the "Certificate of claim" should or should not be taken as defining and limiting the extent of the rights of the Crown, with respect to minerals upon the lands dealt with by the Certificate?
(5) Whether on the review of the whole circumstances the Crown is now able to claim the full rights arising out of the prerogative in respect of Royal mines on the particular estates in question?
(6) Whether on the whole case we consider the Judicial Committee of the Privy Council would be likely to reverse the decision of the local Court of Appeal? And
(7) Whether, looking to the questions which are capable of being raised as to the prerogative of the Crown in respect of Royal mines in a Protectorate, you consider that an appeal is desirable?
We were further honoured by Mr. Antrobus's letter of the 27th July last, transmitting, for our consideration, in connection with the letter from your depart- ment of the 14th July, the despatch from His Majesty's Acting Commissioner for the British Central Africa Protectorate, forwarding a cutting from the "Central African Times," of the 3rd of June, which reported a statement from the Bench by Judge Nunan, reviewing the action and decision of the Appeal Court at Zanzibar in regard to the ownership of mining rights in the British Central Africa Protectorate. We were further honoured by Mr. Lucas's letter of the 9th instant, transmitting to us, with reference to the letter of the 27th July, a further despatch from His Majesty's Acting Commissioner for the British Central Africa Protectorate, enclos- ing a Memorandum by the Crown Prosecutor for the Protectorate respecting the statement by Judge Nunan, which was enclosed in the letter above referred to.
We have taken the matter into our consideration, and in obedience to your commands, have the honour to
Report-
(1 and 2) That we are unable to accept the theories propounded on these points in the judgments either of the Court of First Instance or of the Court of Appeal. We cannot see any ground for the hypothesis upon which the Court of First Instance proceeded, that there was a surrender to the Crown followed by a re-grant, and the proposition put forward by the Court of Appeal that the grantees from the native chiefs had an independent title, and might have objected to the conditions imposed in the certificate of claim, appears to us to be quite untenable.
The certificates of claim were issued under the authority of the British Govern- ment as the Sovereign Power which assumed the right of confirming or disallowing any claims to land, and we do not think that the conditions imposed in these certi- ficates could be questioned in any municipal Court.
(3) The Government assumed the right of regulating the title to mines of gold and silver as well as other real property, but we are unable to discover any sufficient foundation for the theory that these mines were ever vested in the Crown as subjects of property.
(4 All the preceding questions are, however, immaterial for the purposes of this case, and if they should ever rise in a practical form will no doubt be presented for consideration upon much fuller materials than those at present before us.
This case is disposed of by the terms of the 4th clause of the certificate of claim. It appears to us that the reservation of a royalty on all" minerals, metals, and precious stones" defines the extent of the rights reserved to the Crown in this respect, and that the words " minerals "and"-metals" occurring in collocation with the words