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He was playing his own game, as he was quite entitled to. Moreover they do this in language which the other party could only interpret in one way, which was the interpretation of his rights under the Ordinance as he understood them.
And then Yiu Chow sued Chu Chuen's executors to enforce the rights which he supposed he bad under this agreement, to which he was not a party. He had not the shadow of a right under the Ordinance, because be stood out and declined to assent as the Ordinance required him to do, if he wanted a share in the reclamation land. How he can have any rights under an agreement, which professed to secure for him The rights he had under the Ordinance, when those rights were non- existent, I fail to understand. And not even the use of the word "trusted"; and the application of it to Chu Chuen could give him any. If it were really, and if it could be legally, a trust agreement, then it must be construed by the light of what I have already indicated as the proper interpretation of the Ordinance.
A good dead was said about the intention of the Governinent towards Yiu Chow, and that they never kept him at arm's length. But supposing it admissible in evidence it does not amount to much, except that Yiu Chow repelled all the advances the Government made to him- he certainly kept the Government at arm's length. And that is what the Government, if their action had been guided by what was laid down by the Ordinance, ought to have done to him.
But the action of the Government is altogether inexplicable. The evidence and the facts being what they are, there appeared in the "Government Gazette" of 19th December, 1891, a notice which contained a list of lessees who had accepted: and among them figures the nume of Yiu Chow, in respect of scctious B and D. It was attempted to put this in evidence. Of course it was objected to. But the Evidence Or- dinance of the Colony contains a curious provision which I cannot pass over without criticising adversely.
By s. 26 (3) of Ordinance 2 of 1889 it is provided that in civil proceedings "all proclamations, etc., and other official communications of the Government appearing in the 'Governmen; Gazette may be proved by the production of such Gazette, and shall be prima facie proof of ang fact of a public nature which they were intended to notify." It was contended that this notice was not an official communication ejusdem generis with proclamations, etc. I think it is, and I admitted the evidence with reluctance, intimating that I should deal more fully with the Ordinance itself in my judgment.
The provision ought to be at once repealed. It is impossible in this way to make any document which is of a public nature, and waich is put into the "Gazette," prima facie evidence of the truth of the contents; that is, shift the burden of proof on to the other side, compelling himi to prove the untruth. The "Gazette" is generally in charge of the Assistaut Colonial Secretary, or sometimes of the Chief Clerk, and it simply makes anything which a junior officer chooses to put into the notice prima facie evidence. The danger of the provision is well illustrated by what occurred in this case: the notice must have been a mistake; it cannot have been intentional, because it is diametrically opposed to the facts: and yet it was attempted to put it in evidence. I do not think Mr. Pollock half liked his task, and he did not press the point unduly. But this case was almost inevitably fought on the lines which the Government had traced from the beginning, and on which the other case had bean fought and this document had always been a piece de resistance, so that it But then it was could not perhaps consistently have now been omitted. produced by an individual. I protest most emphatically against the Government attempting to make evidence and to treat as weighty ovi- dence, a document which is palpably inaccurate.
It is true that the admitted facts rebutted the prima facies at once, but that is beside the question. The province of the "Gazette" is, or should be, well known. It contains notices issued by the Governor, er by command, connected with public affairs; and in such cases, that is to say, when such notices fall within the recognised duties of the Governor, they are rightly made prima facie evidence of the statements contained in them. And this is a general principle with regard to all notices in the "Gazette." But for all other matters the "Gazette" ought not to be used, unless specially authorised in every case by the Legislature--as was in fact done in the case of the first notice under the Praya Ordinance. The proper form for such a provision is as it is contained in the Mauritius Common Form Ordinance as follows:-
"Where in any Ordinance any notice, order, or other document is required to be published in the 'Gazette,' a copy of the Cazette shall be evidence of the facts stated in such notice, order, or document."
To revert to the story of this case. Yiu Chow suod Chu Chuen's executors, and this Court, by a process of reasoning which, with must respect to my learned predecessor, I am unable to follow, held him entitled to recover. The Full Court maintained the decision, and the Privy Council reversed it. And then the Government sued Chu Chuen's executors, which is this action.
This will be convenient place to deal a little more fully with the argument, much insisted on, that the Government did not put Yiu Chow at arm's length, but recognised him as a Crown lessee who had signified Lis acceptance, in spite of his not having done so in fact, as appears front
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