CO885-(15-16) — Page 643

PUBLIC RECORD OFFICE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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

alternative clauses which were suggested to them with the object of making the second Agreement depend directly upon the first by a repetition of the language of Clause 3 thereof.

That as our opinion with regard to either of the draft Agreements submitted by the Central Mining and Investment Corporation must depend upon the meaning we placed upon Clause 3 of the Agreement with the United British West Indies Petroleum Syndicate, you would be obliged if, in addition to answering the above questions, we would also inform you what we considered to be the true intent of the third clause of the Syndicate's Agreement, and in particular-

(f) Whether a pipe line laid by a combination of owners (not being a com- bination of owners for this purpose only) must be the joint property of all such owners in order to come within the terms of the proviso to the clause, or

(g) Whether the intention of the proviso was that each owner should lay his own pipe line on his own property, connecting it, if necessary, with the pipe line of another owner laid on that owner's own property, and so on, as often as might be necessary, until the pipe line reached property which did not belong to any of the combined owners, but must be crossed in order to reach a refinery or a shipping place, and that from the point where such property was reached the pipe line should be the joint property of all the combined owners, or

(h) Whether one or more of the combined owners (not being a combination for this purpose only) might lay (i) a pipe line or (ii) a complete system of pipe lines for the use of all the combined owners on such terms as might be arranged between them, or

(i) If none of the above suggested interpretations (f), (g), (h) were correct,

what, in our opinion, was the true meaning of the clause and proviso?

In obedience to your commands we have the honour to

Report-

That we have considered the draft Agreements, and our answers to the questions put upon them are:-

(a) and (b) Assuming that "improperly" means " so as to constitute the giving of consent to it a breach of the Agreement with the Syndicate," we

answer, no.

(c) and (d) On the same assumption, no.

(e) The mere fact that a pipe line proposed to be laid by a combination of owners (not for that purpose only) will compete with a line laid by the Syndicate would not, in our opinion, be a reasonable ground for refus- ing permission to lay it. If the circumstances were such that to grant permission would constitute a breach of the Syndicate's Agreement, then reasonable ground would exist for refusing such permission. (f), (g), and (h) The true intention of the clause and proviso in the Syndicate's Agreement is to protect the Syndicate from combinations of owners made for the purpose only of constructing pipe lines, but to leave the Government free to grant permission to lay lines to any combination of owners who have combined for other purposes as well (such other purposes being, of course, substantial purposes).

We do not consider that the arrangements of the combined owners, inter se, as to the ownership of the pipes or sections of the line are material.

Generally-We note, with regard to the amendment of Clause 7, that it is pro- posed to omit the words after "for the purpose of acquiring." We think that the four words which follow, viz. : "and who shall acquire" ought to be retained. As to the choice between drafts A and B, the latter, as amended, is, in our opinion, the preferable form as the combination which it contemplates is rather more definite than is the case in draft A and, therefore, less likely to raise unforeseen problems of construction.

We have, &c.,

The Right Honourable

Lewis Harcourt, M.P.

&c., &c.,

&c.

RUFUS D. ISAACS

JOHN SIMON.

21785

No. 164.

(GOLD COAST.)

LAW OFFICERS to COLONIAL OFFICE.

[Claim of Ashanti Goldfields Corporation to exclusive trading rights within their

SIR,

Concession.]

Law Officers' Department,

Royal Courts of Justice, 26th June, 1913. We were honoured with your commands signified in Mr. H. J. Read's letter of the 3rd December last, stating that he was directed by you to request our con- sidération of the claim which had been made by the Ashanti Goldfields Corporation, Limited, on behalf of their assigns, the Ashanti Obuassi Trading Company, to the possession of exclusive trading rights over 100 square miles in the territories of Bekwai and Adansi, in Ashanti.

That Mr. Read was to transmit to us the following documents which appeared to have a bearing on this claim :-

(1) The Agreement dated 3rd June, 1897, between the Governor of the Gold Coast Colony and the Ashanti Goldfields Corporation and others, for the occupation of certain lands in Ashanti and Adansi.

(2) Letter dated 16th May, 1912, from the Ashanti Goldfields Corporation to the Under-Secretary of State for the Colonies, enclosing opinion by Sir Robert Finlay, and other Counsel, on the claim to a monopoly of trading rights, together with a printed statement of their case.

(3) Despatch, dated 24th September, 1912, from the Governor of the Gold Coast enclosing a Report, in two parts, by the Attorney-General of the Colony on the Ashanti Corporation's claim.

(4) Order in Council of the 29th December, 1887.

(5) Ordinance 3 of 1895 of the Legislature of the Gold Coast, entitled "An Ordinance to amend the Statute Law of the Colony."

(6) Ordinance 4 of 1876 of the Legislature of the Gold Coast, entitled Supreme Court Ordinance, 1876."

(7) Ashanti Administration Ordinance No. 1 of 1902.

"

The

That the Corporation's claim to a monopoly of trade was based primarily on The Com- Clause 2 of the Agreement of 1897, the relevant words of which were: pany shall use or occupy the said land for the purpose only of mining operations, trading, cultivation of rubber or agricultural produce, or for any other purposes which may from time to time have previously been expressly sanctioned in writing by the Governor

but this Agreement is to be subject in every respect

to the existing rights of any native or natives in respect of the said land or any part thereof, and accordingly every operation hereby authorised must be conducted so as in no way to affect or interfere with any such rights."

That it was contended by the Corporation that, as it admittedly had the sole mining rights under and by virtue of this Agreement, so the right to trade granted in the same clause must also be an exclusive one, and that it was further argued that the rights of natives did not include trading rights.

That it appeared, however, to you that while rights of cultivation or mining, when granted to a person in respect of particular land, were necessarily implied to be sole or exclusive rights, there was no such necessary implication in the grant of a right to trade, or rather in the permission to make use of certain land for trading upon. That further, on the principle that Crown grants were to be con- strued most strongly against the grantee, it would seem to be for the Corporation to show that it was the deliberate intention of all parties that the Corporation should have a trading monopoly-which they did not appear to have shown.

That if, however, it was held that the words of the Agreement did purport to confer a trading monopoly, the further question arose whether the then Governor of the Gold Coast, as representing the Crown, had power to grant such a monopoly. That the Order in Council of 29th December, 1887, gave the Legislative Council full power to legislate for the protected territories.

(31248-2.) Wt. 183-722, 25, 10/13. D 8.