CO885-(15-16) — Page 513

PUBLIC RECORD OFFICE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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

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That a complaint had now been received from Urquhart as to the treatment which he received both in the Protectorate and in Portuguese East Africa, and he claimed compensation both in respect of his arrest and removal from the British Protectorate and also for the treatment which he received in the Portuguese prisons. That in these circumstances it became desirable to consider whether there was such complete assurance of the legality of the Commissioner's action in deporting the two men, as would make it improbable that they could succeed in any action against the Commissioner.

That in the order for removal signed by Sir A. Sharpe, it was not stated that he was acting under any specific provision of the Immigration Restriction Ordin- ance; but that it was clear from the correspondence that he considered the two men as politically undesirable under Section 2 (5) of the Ordinance, and that it was presumed that the order was issued under Section 8, which provided for the removal of persons immigrating into the Protectorate in contravention of the provisions of the Ordinance. That a question, however, arose whether, as the Commissioner had not decided that Urquhart and Zander were undesirables within the meaning of Section 2 (5) of the Ordinance before they had actually entered the Protectorate, it could be said that they did immigrate into the Protectorate in contravention of the provisions of the Ordinance, or whether in fact they only subsequently acquired the characteristics of persons prohibited from inmigrating; in which case it might be argued that they could only have been removed in accordance with rules made by the Commissioner under Section 6 (2) of the Ordinance. That at the time when Urquhart and Zander were removed, no rules had been made under Section 6 (2) of the Ordinance, but that Your Lordship inclined to the opinion that this fact did not really affect the broad question at issue, for the Ordinance was almost necessarily one rather wide and general in its provisions, and that Section 2 merely enacted that it should be unlawful for certain classes of persons (subsequently defined) to enter the Protectorate.

That neither this nor any other Section of the Ordinance would appear to afford a basis for drawing a distinction between those who committed a breach of the law by the act of entry and those who subsequently became prohibited immigrants.

That Mr. Just was accordingly to request that we would take the papers into our consideration and furnish Your Lordship with our opinion:-

(1) Whether the Commissioner of the British Central Africa Protectorate was justified by the Ordinance in dealing as he did with the two men, Urquhart and Zander?

(2) Whether, having regard to the circumstances of their treatment by the Commissioner, any action could be brought against him by Urquhart and Zander, and, if so, on what grounds?

(3) Whether there was any ground to support a claim for compensation against 'the Portuguese Government in respect of the treatment of the men after their

arrest in Portuguese territory!

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

Report-

(1) That it is, in our opinion, open to grave doubt whether the Commissioner " of the British Central Africa Protectorate was legally justified in dealing as he did with the two men, Urquhart and Zander, and we express no conclusive opinion upon it.

(2) As more than six months have elapsed since the alleged cause of action arose, any action by Urquhart or Zander in respect of it in the United Kingdom would now be barred by the Public Authorities Protection Act, 1893.

A somewhat difficult question arises as to whether that Statute would apply to an action brought by either of the men in question in British Central Africa. By Section 15 (1) and (2) of the British Central Africa Order in Council, 1902, His Majesty's High Court of British Central Africa must exercise its jurisdiction thereby conferred "in conformity with the substance of the law for the time being in force in England, and with the powers vested in and according to the procedure and practice observed by and before Courts of Justice in England according to their respective jurisdictions."

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In our opinion this general provision applies the Public Authorities Protection Act, 1893, to the jurisdiction of the High Court of British Central Africa.

It is further provided by Article 23 (1) of the same Order that a Court shall not thereunder exercise jurisdiction in any proceeding whatsoever against the Commissioner or his official or other property.

Sub-section (2) provides that Article 23 shall not operate in bar of any proceed- ing against the Commissioner where it is sought to establish any liability of the Government of the Protectorate.

We think no action would lie against the Government of the Protectorate for the matter complained of. The liability, if any, would rest on the officers imme- diately concerned. So far as the Commissioner is concerned he would be absolutely protected by Section 23, sub-section (1), and the other officers would be protected (as would also the Commissioner) by the Public Authorities Protection Act.

(3) We think that on the merits the case is not one in which any pressure should be put on the Portuguese Government to give compensation to either Urquhart or Zander.

Zander seems to have been clearly guilty both of theft and murder, and on Urquhart's own admissions he cannot be said to be free from complicity at least in the theft and probably also, as an accessory after the fact, to the murder. He knew that Zander had taken the pork in their common interest and had refused to pay for it in spite of the demands of the natives.

It was therefore his duty himself to offer payment. Instead of doing so, he joined Zander in making off with the meat and shouting to the natives to go back. Further, he refrained from reporting Zander to the Portuguese authorities and certainly made no attempt to bring him to justice. Under these circumstances the Portuguese Government can scarcely be pressed to give him compensation for his

We have, &c.,

detention.

The Right Honourable

The Earl of Elgin, K.G.,,

&c..

&c., &c..

JOHN L. WALTON. W. S. ROBSON.

LIST OF PAPERS SUBMITTED TO LAW OFFICERS.

Governor, Cape, No. 375, December 5, 1906 (47354).. Governor, Cape, No. 384, December 17, 1906 (597/06-7).

Commissioner, British Central Africa Protectorate, No. 312, November 29, 1906

(1160/06-7).

To Commissioner, March 1, No. 72 (1160).

To Commissioner, March 1, Confidential (1160).

To Governor, Cape, March 1, No. 53 (1160).

Governor, Cape, No. 393, December 31, 1906 (2486).

Mr. Urquhart, March 25, 1907 (14072).

To Sir A. Sharpe, May 28, 1907 (14072).

Acting Commissioner, British Central Africa Protectorate, April 12, 1907. Confi-

dential (19177).

Sir A. Sharpe, May 30, 1907 (19422).

British Central Africa Immigration Restriction Ordinance, 1905.