CO885-(15-16) — Page 332

27555

No. 228A.

(EAST AFRICA PROTECTORATE,)

LAW OFFICERS TO FOREIGN OFFICE.

[Leases of certain areas in the Protectorate.]

Royal Courts of Justice, MY LORD,

July 6, 1904. WE were honoured with your Lordship's commands, signified to us by Sir Clement Hill in his letter of the 27th June last, stating that he was directed by your Lordship to transmit to us the copy of a despatch from Sir C. Eliot, late His Majesty's Com- missioner for the East Africa Protectorate, containing copies of correspondence which passed between Messrs. Chamberlain and Flemmer and himself with regard to the leases of certain areas in the East Africa Protectorate.

That he was also to inclose a Memorandum on this correspondence by the Assistant Legal Adviser to your Lordship's Department, and to state that your Lordship was auxious that the legal question should be clearly ascertained, and would, therefore, be glad to learn whether we concurred in the conclusions come to by the Assistant Legal Adviser in his Memorandum,

We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report-

That in our opinion there is a good defence to any proceedings upon this Agreement. Having regard to the covenant for the expenditure of 5,000, we think that the clause giving an option of purchase is an essential part of the Agreement, and we think that the consent of the Secretary of State is not, in the true construction of the clause, a condition of the option to purchase.

This construction is fortified by the correspondence in which Messrs, Chamberlain and Flemmer treat the right to purchase as of the essence of the transaction.

The Commissioner had no authority to enter into any Agreement of sale except up to 1,000 acres, and as the Agreement is one for a lease with an option of purchase of 10,000 acres, we think that any proceedings upon it may be, successfully resisted upon the ground that his action was ultra vires.

The case is one which should, if possible, be settled, as the difficulty is due to the action of the Commissioner. If Messrs. Chamberlain and Flemmer refuse reasonable terms any proceedings by them should be resisted, as advised in Mr. Hurst's Minute.

The Marquess of Lansdowne, K.G.,

&c.,

&c.,

&c.

25 Wt 416

8,04

D & B

5

18983

We have, &c.

R. B. FINLAY.

EDWARD CARSON.

}

PUBLIC RECORD OFFICE

N

Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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