CO129-357 - Governor Sir Lugard - 1909 [7-9] — Page 128

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the above section would allow the present Governor to sue. I am prepared to extend this to any agreement which can legitimately be cailed consequential on the agreement in the schedule, although not in itself in the schedule. But I cannot extend it any further; and if an agreement has been entered into outside the Ordinance by the then Governor-Sir W. Des Voeux-ii it is an agreement which has been devised by the then Governor to meet an exceptional case, which finds no sanction in the Ordinance, then, unless there has been a regular assignment of the right of action through successive Governors to the present Governor, Six F. Lagard has no right of action.

The answer

to the preliminary objection depends therefore on a more intimate know- ledge of the facts of the case. I am exceedingly sorry to be perpetually introducing Sir F. Lugard's name into this judgment, but unless I do, the essentially personal nature of this action will be lost sight of. The fact is, as I shall presently show, the Government of the day got itself into a tangle, and I cannot help to get the present Government out of consequences of it by the use of loose phraseology, by attributing to the word "Government" some magic influence which enables its officers to do what they like, and sue as they like.

The material facts are as follows. Chu Chuen was the lessee of Marine Lot 58A. He had assigned a small portion to Mr. Stephens, and another portion to Yiu Chow. This portion, known as Sections B and D, fronted the foreshore for roughly 4/5ths of the frontage of the whole lot, the remaining portion of the frontage being the frontage to what is called theBemaining Portion" of the Maine Lot. Mr. Stephens' lot was a small portion at the back (Section C), abutting on the Queen's Road. Section A was a large portion of the lot immediately behind sections B and D. Section A and the "remaining portion" both remained in the possession of Chu Chuen, which comprised rougly three-fourths of the whole lot.

The Praya Reclamation Ordinance was passed in 1889 to prevent the silting up of the foreshore, and to provide a deep water frontage; the reclamation being intended as a benefit both to the individual lessees of Marine Lots, and to the Colony generally by widening the thorough- fares along the Praya. Speaking very generally, the scheme was that if the Marine Lot holders paid their share of the reclamation they should bave in exchange the portion of the reclaimed land in front of their lots. The special preamble to s. 8 (the original s. 7) recited that the majority of these holders had, at the time the Ordinance was passed, signified their willingness to adhere to this scheme. It is to be specially noted that the Reclamation works were of an exceptionally difficult nature: the scheme was boldly conceived; it took 10 years to carry out: it has proved to be as weil excented as could possibly have been expected by its most sanguine supporter. But at the time the events happened with which we have to deal, the value of the undertaking rested in expectancy and hope: and so remained until time had proved the excellence of the work. I must now go into details, and in order to do so I must project myself into the past, to the time when the reclamation scheme was being elaborated in order to arrive at the meaning of what was said and done then. A careful study of the Ordinance makes it remarkably plain, so plain that the wonder that it should have been so misunderstood. There has been a great deal of talk about rights to "equitable propor- tions; I can find nothing in the Ordinance to warrant it, for that expression "equitable proportion" is used once only in the Ordinance, and that not in the enacting part, but in the special preamble to s. 8. It is the more important to arrive at an accurate appreciation of what the Ordinance said, apart from what it provided, because the claim of the plumtuff is based upon what is called "the true construction of the Ordinance."

Now the preamble to s. 8 contains the story of certain prelimin ary negotiations which had taken place between the Government and the lessees of the Marine Lots fronting on the Praya.

The Government had this large scheme on haud, and it deter- mined to undertake it, provided those who would directly benefit from it would bear the cost And the result of the preliminary negotiations was that the majority of the frontagers were willing to accept this benefit provided they each had some share in the land reclaimed. What share i Well, the Government could not say definitely, because the scheme was still in embryo; so they said, if you contribute your shares of the expense individually, you shall have what any one would think was your proper share, having regard to the public requirements for roadways and streets; and of course having regard also to the claims of other lessees. The advisers of the Government hit upon the words "oquitable proportion "to express this idea, which was quite well suited to the requirements of the moment. With this the majority of the frontagers seem to have been satisfied; but it is material to bear in mind that there was a minority, who had not assented; there is no trace of their having expressly dissenter at that time.

With the majority of the frontagers in favour of the scheme, tho Government decided to proceed, and determined on what was, no doubt, So in the forcible expropriation so far as the minority was concerned. preamble of s. 8, there is a recital of what had taken place, and naturally the term which had been used in the preliminary discussions was also Then a plan was drawn up showing how the reclaimed land would he divided up, and how the cost would be distributed, among the various lessees. From this plan the Government scheine was made clear; they

wed.

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