CO885-(15-16) — Page 570

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26348

PUBLIC RECORD OFFICE

תחותיי

Reference :-

C.O.885

No. 121.

(SOUTHERN NIGERIA.)

LAW OFFICERS to COLONIAL OFFICE.

[Interpretation of Section 7, sub-section (4), of the Southern Nigeria Mining Regulation (Oil) Ordinance, 1907.]

MY LORD,

Royal Courts of Justice, 5th August, 1909. We were honoured with Your Lordship's commands, signified to us in Mr. G. V. Fiddes's letter of the 20th ultimo, stating that he was directed by your Lordship to inform us that a question had arisen as to the interpretation of Section 7, Sub-section (4) of the Southern Nigeria Mining Regulation (Oil) Ordi-

nance, 1907.

That Mr. Fiddes was to state that the Nigeria Bitumen Corporation, Limited, were the holders of licences to drill for and work mineral oils within a certain area in Southern Nigeria, and that in November, 1908, the Chairman of the Cor- poration notified the Colonial Office that oil had been "struck" in their borehole No. 5. That on the 14th of December, 1908, the Officer Administering the Govern- ment of Southern Nigeria, Mr. Thorburn, in a telegram to the Secretary of State confirmed that statement, and added that no further licences would be issued. That it was therefore evident that the Government of the Colony had satisfied themselves that oil had been " raised, won, or gotten within the meaning of Section 7, Sub-section (4) of the Ordinance.

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That in consequence of this decision applicants for licences or for an extension of existing licences were informed that, in accordance with the terms of the Ordi- nance, their applications could not be entertained, but that it was open to them to apply for leases under Section 8 of the Ordinance. That it would be seen, from a perusal of the rules contained in the schedules to the Ordinance, that the terms on which leases might be acquired were much more onerous than those applicable to licences, the intention of the Ordinance being to encourage the enterprise of pioneers in a country where no mineral oil had been found. That it was recog- nised that the operations necessary for the discovery of oil were laborious and costly, and that persons or companies who deferred action until oil had actually been found would be spared a great part of the risk and cost which had been borne by their predecessors. That at the same time, in order that no undue monopoly should be given to the holder of a licence, it was provided (in Section 9) that no licence holder should drill for or work mineral oils for more than four years from the commencement of the Ordinance without a lease granted by the Governor.

That the propriety of the action of the Government of Southern Nigeria in stopping the issue of further licences had been questioned on the ground that the "finding" of oil by the Nigeria Bitumen Corporation in November last did not establish the fact of the existence of oil in quantity sufficient for commercial purposes, and that beyond the production of some samples of "heavy oil" no oil had actually been "raised, won, or gotten" from borehole No. 5. That, in this connexion, reference might be made to Rule 47 in Schedule II. of the Ordinance as having some bearing upon the true construction and intent of the words "raised, won, or gotten" in Section 7 (4) of the Ordinance.

That it had been represented to your Lordship that the decision to issue no further licences would prevent or delay the proper exploitation of the area within which mineral oil was believed to exist. That there was also the special case of the British Colonial Petroleum Corporation, Limited, who were the holders of a licence which expired on the 25th of July ultimo. That that Corporation had applied for a renewal of their licence and for the exchange of the area included in their licence for an adjoining area. That they had expended considerable sums in boring, and were prepared to continue their operations if their application could be granted, but that the Government of Southern Nigeria held that the law did not admit of this.

That in consequence of representations received by your Lordship on this subject, your Lordship addressed to the Governor of Southern Nigeria on the 27th May last a despatch proposing that the applications for licences should be recon-

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sidered on the ground that the "winning" of oil should, as in the case of coal (Lewis v. Fothergill, L.R., 5 Ch., at p. 111, and Lord Rokeby v. Elliott, L.R., 13 Ch. D., at p. 279), imply not merely the production of samples but actual working That the Governor's reply to that despatch was enclosed, from which we would see that he contested the view taken by your Lordship, and enclosed a minute by Mr. Thorburn in which the latter expressed the opinion that the issue of further licences would be followed by legal proceedings against the Government by the Nigeria Bitumen Corporation.

That it would be observed that in the 5th paragraph of his despatch the Governor admitted that there had been no "further development" since the finding of oil in November last, and it appeared from a telegraphic message from the manager of the Nigeria Bitumen Corporation which appeared in the newspapers on the 6th of July that the boring apparatus had been removed from borehole No. 5 to a new location.

That Mr. Fiddes was to request that we would take the foregoing statement into our consideration and favour your Lordship with our report

1. Whether the Government of Southern Nigeria was correctly advised in its interpretation of Section 7, Sub-section (4) of the Mining Regulation (Oil) Ordinance, 1907; and, if not,

2. Whether the "raising, winning, or getting" of "any mineral oil" could he held to imply a continued output or actual working of oil?

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

Report

(1) That in our opinion the Government of Southern Nigeria is correctly advised in its interpretation of Section 7, Sub-section (4) of the Mining Regulation (Oil) Ordinance, 1907.

(2) That the meaning of "raising, winning, or getting" which is suggested in this question is not that which those words bear in Section 7, Sub-section (4) of the said Ordinance.

The Right Honourable

The Earl of Crewe, K.G.,

&c.,

&c.,

&c.

We have, &c.,

W. S. ROBSON. S. T. EVANS.

26868

MY LORD,

No. 122.

(STRAITS SETTLEMENTS.)

LAW OFFICERS to COLONIAL OFFICE.

[Draft Fugitive Offenders Bill.]

Royal Courts of Justice, 9th August, 1909. WE were honoured with your Lordship's commands signified to us in Mr. Bertram Cox's letter of the 22nd June last, stating that he was directed by your Lordship to inform us that the Governor of the Straits Settlements had submitted to your Lordship the draft of a Bill to amend the law relating to the surrender of fugitive offenders of certain neighbouring countries.

That as regarded the countries named in the first schedule to the Draft Bill Mr. Bertram Cox was to observe that in the case of surrender of fugitive offenders from the States of Pahang, Negri Sembilan, Selangor, and Perak, which formed the Federated Malay States, "fugitive offenders" procedure (ie., procedure based upon that laid down by the Fugitive Offenders Act, 1881) had been adopted in the Straits Settlements under the provisions of the "Straits Settlements Fugitive Offenders Order, 1904." That in the case of the State of North Borneo there existed "extradition" procedure (ie., procedure based upon that laid down by the Extradition Act, 1870) under the Straits Settlements Extradition Orders, 1889 and 1901. That as regarded Johore "extradition" procedure was provided under the Straits Settlements Extradition Orders, 1889 and 1908. That the Order of 1889 was similarly applicable to the States of Brunei and Sarawak as States "in the case of which the Extradition Act, 1870, does not for the time being apply." That in the case of all such States it might be assumed that there existed agreements between them and the Government of the Straits Settlements for the reciprocal surrender of fugitive criminals, so as to bring the Order of 1889 into operation in their favour.

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That we should see that it was now proposed to introduce a system of reciprocal surrender of fugitive criminals not only between the Straits Settlements and the eight countries mentioned in the schedule to the Bill, but between these countries inter se, and that it was suggested that this proposal should be carried into effect by means of local legislation. That your Lordship was advised that if the pro- posal could legally be accomplished by legislation in the Colony and the other eight countries, the Straits Settlements Fugitive Offenders Order, 1904, might be wholly revoked, and that the Straits Settlements Extradition Order, 1889, might be revoked so far as it applied to the States of North Borneo, Johore, Brunei, and Sarawak, together with the amending Orders of 1901 and 1908 which applied to North Borneo and Johore respectively. But that your Lordship was in doubt whether a Colonial law and legislation in the other eight countries concerned would be sufficient to meet the case, as your Lordship observed that by Clause 5 (1) of the Bill prepared in the Straits Settlements it was provided that an offender found in the Colony should be held in custody and conveyed by sea or otherwise into the country in which the warrant was issued, and that it appeared to your Lordship that such a provision was of uncertain validity in a Colonial enactment, though, of course, it would be competent to the Imperial Parliament to enact the similar pro- vision in Section 14 of the Fugitive Offenders Act (44-5 Vict., c. 69). That it would seem, therefore, that while being conveyed by sea outside any territorial waters a prisoner would not be in lawful custody. That the question also arose whether the protected States (ie., the other eight countries which it was proposed to include in the scheme) could properly legislate for the conveyance of fugitive offenders outside their own territory. That your Lordship presumed that they, too, could only deal with matters arising within their territorial jurisdiction.

That Mr. Bertram Cox was to point out that a similar provision to that of which the validity was now questioned was found in Clause 2 of the Straits Settlements Fugitive Offenders Order, 1904. That that Order was made under the Imperial Act, 1866 (29 and 30 Vict., c. 115) to provide for the Government of the Straits Settlements, but that that Act gave His Majesty in Council no higher or more extensive powers of legislation for the Colony than were possessed by the Legisla-

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