CO885-(11-13) — Page 291

11,213.

PUBLIC RECORD OFFICE

IL ། ། ། ། །

N

CO.

Reference :-

• 885

No. 68.

(GOLD COAST.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Lincoln's Inn, 9th October 1875. We are honoured with your Lordship's comman ls, signified in Mr. Malcolm's letter of the 16th September ultimo, stating that he was directed by your Lordship to acquaint us that claims had been made against the Government of the Gold Coast for compensation on account of alleged damage to certain gunpowder whilst stored in the Government magazine at Cape Coast during the late Ashantee War.

26 August 1874, Paper No. 9:

No. 4 of 1959.

p. 187 of Conf.

p. 181 et seq of

No, no.

2. That the circumstances of those claims were detailed in a report from the Queen's Advocate of the Gold Coast, copy of which was annexed, together with copies of the several claims, and of the Local Ordinances of 1859 and 1873 referred to. Also Conf. Paper copies of reports upon the condition of the magazine from the claimants and the local Government respectively.

3. That we would observe that the storage of the gunpowder, though compulsory upon its owners, was made in pursuance of an Ordinance in force at the time, and further, that it was a precaution taken in view of the outbreak of war with Ashantee. That we would further observe that there was a conflict of evidence as to the condition of the magazine; it might, however, be assumed that it was the best that could be provided under the circumstances.

4. That he, Mr. Malcolm, was to request that we would take the papers into our consideration, and report whether, in our opinion, there is any legal liability on the part of the Gold Coast Government to make compensation to the claimants.

5. That your Lordship would be glad to receive our answer at our early

convenience.

In obedience to your Lordship's commands we have the honour to

Report

That assuming that the magazine in Cape Coast Castle was the best that could be provided, and that the servants of the Government were guilty of no negligence in storing the gunpowder, and took due care of it whilst in store, we are of opinion that no claim can in strict law be maintained.

Although, however, the magazine was the best that could, under the circumstances, be provided, still, if the officials whose duty it was to see to the storing of the powder caused it to be stored in an improper manner, or if those who had the care of the magazine omitted to ventilate it as frequently as they ought in prudence to have done, and it can be shown that but for such improper storage or such omission to ventilate the damage would not have occurred, or would not have been so extensive, then, in our opinion (subject to the technical point to which we will refer presently), the owners of the powder would have a right to compensation.

The technical point, to which we have just alluded, is this-In the present case, if any claim exists we presume it must be enforced against the Crown by petition of right, as we are not aware of any law which will enable proceedings to be taken against the Colonial Government. Now, a petition of right will not lie for mere negligence on the part of the servants of the Crown, although it will lie to recover damages for breach of contract. Thomas v. The Queen, 9 Law Reports, Queen's Bench, 31.

In the present case, it may be a question whether, under the circumstances, there was a contract between the owners of the powder and the Government, that the latter should take all reasonable care of it; if not, no petition of right can be sustained.

On the whole, however, we think there was an implied contract, and therefore, if there was negligence on the part of the Government servants which occasioned injury a claim may be enforced.

The information upon this point is extremely conflicting.

The Right Hon. the Earl of Carnarvon,

We have, &c.,

(Signed) RICHARD BAGGALLAY.

JOHN HOLKER.

No. 3 of IN79. Henkra. Lawton

12 Feb. 1875

1875.

and Head,

10, 11 May

&c.

&c.

▲ 12016-68. 95.-12/84.

&c.

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

H

►