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 by Gold Coast Ordinance 3 of 1895 (Sections 2, 3, and 4) the existing and future Ordinances of the Colony were extended to the "protected territories which the Bekwai and Adansi lands, the subject of the Agreement, were situated.
That consequently, at the date of the Agreement, the law of the Colony applied, and that law (under Section 14 of the Supreme Court Ordinance) included the Statutes of general application" in force in England on the 24th July, 1874, of which the Statute of Monopolies (21 Jac. I., cap. 3) was one. That under that Statute monopolies "for the sole buyinge sellinge makinge workinge or usinge of any thinge
are and shall be utterlie void and of none effecte."
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That you had not overlooked the Report of your predecessors, dated 21st October, 1899, according to which the sections of the 1895 Ordinance referred to above only availed to apply all the existing Ordinances of the Colony to all the adjacent territories where Her Majesty had at the date of the passing of the Ordinance acquired power and jurisdiction." But that it might be pointed out that the Report of the Law Officers was a confidential official document which could not be cited as an authority in Court, and that an argument founded on the Law Officers' report might possibly be rejected by the Court; and further that, even if the Court accepted the principle of the Law Officers' Report, it might still be contended that on the 22nd January, 1895, Her Majesty Queen Victoria possessed sufficient power and jurisdiction over the territory in which these lands were situate to make Sections 2-4 of Ordinance 3 of 1895 valid legislation for that territory.
That such a view would be supported by the Agreement, which showed that Her Majesty refused to recognise the native concessions granted in August, 1895.
That it might possibly be argued on behalf of the Corporation that, even if the original grant did not convey a monopoly of trading rights, subsequent communi- .cations from officers of the Government amounted to an admission of such rights— such, for example, as Mr. Fuller's letter of 12th March, 1910, approving on behalf of the Governor the proposals of the Corporation in their letter of 26th October, which included (paragraph 4) an assertion of their sole trading rights. That [it] would appear, however, that any such admission since the date of the Ashanti Admin- istration Ordinance No. 1 of 1902, viz., 1st January, 1902 (and no such admission appeared to be pleaded before that date), must be of no effect under the Statute of Monopolies (whatever might be the position as to the applicability of the Statute prior to the date of that Ordinance), since the Ashanti Administration Ordinance (Section 7) applied to Ashanti the law of the Gold Coast Colony as set forth in the section of the Supreme Court Ordinance already cited.
That Mr. H. J. Read was to request that we will take all the above matters into our consideration and advise :---
(1) Whether the Agreement of 3rd June, 1897, purported to grant a monopoly of trading rights.
(2) If so, whether natives were exempted from the operation of such monopoly. (3) If so, whether the natives so exempted were only those settled on the land at the time of the Agreement, and their descendants or successors, or whether it included any native of the Gold Coast Colony and its dependencies who might wish to settle or travel in the territory for purposes of trade.
(4) If the Agreement did purport to convey a monopoly, whether the provision was void under the Statute of Monopolies.
(5) If the first question was answered in the negative, could the Government be held to have granted a monopoly of trade by Mr. Fuller's letter of 12th March, 1910, or any similar letter subsequent to 1st January 1902, or was any such alleged grant void under the Statute of Monopolies or otherwise?
(6) Generally.
We have taken the papers into our consideration, and, in obedience to your commands, have the honour to
Report.
1-3. That, in our opinion, the Agreement of 3rd June, 1897, does not purport to grant a monopoly of the right to trade. What it does grant is an exclusive right to occupy land in the area in question for the purposes of trading (subject to the rights reserved for natives). The Corporation could, therefore, refuse to sublet to any person without a restrictive covenant restraining him from using the land for the purpose of trading, but it could not prevent a sub-tenant to whom it was sublet without any such covenant from so using the land during the continuance of his term.
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The natives entitled to exercise the rights reserved by the Agreement of 3rd June, 1897, are those natives in whom rights were vested at that time and their successors. We are not able to advise as to the extent of those rights without knowledge of the facts concerning the leases granted by the native kings in August, 1895, and the rights over the land in question by individual natives at the time of the Agreement of 3rd June, 1897.
4. This does not arise. We are, however, of opinion that the exclusive right to occupy land within a limited area for the purpose of trading is not a monopoly within the Statute.
5. The correspondence subsequent to 3rd June, 1897, does not purport to alter the Corporation's rights under the Agreement of that date.
6. We have nothing to add.
The Right Honourable
L. Harcourt, M.P.,
&c.,
&c.,
&c.
We have, &c.,
RUFUS D. ISAACS, JOHN SIMON.
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