By order: and if anything is done irregularly and out of order those officers who so act, the highest or the lowest, must take the consequences.
And in the case of this agreement, and indeed of almost every act of the then Government in this matter, the Ordinance has been treated as waste paper, and the Legislature as non-existent. Turn the case the other way. Suppose this agreement had resulted in the creation of rights in Chu Chuen, it matters not what, could a petition of right have been maintained against the Government? The first thing that the Attorney General of the day would say, and he would be bound to say it, is that the agreement was not entered into by or on behalf of the Government; that it was entered into by the Governor at the time being; that he had no right to enter into such an agreement, and that it has never been ratified by the Council of Government.... The Court would uphold his contention, the plaintiff's remedy would be against the Governor who signed the agreement, and his petition against the Government would be dismissed on the ground that there was no cause of action. A fortiori would an action against the present Governor, who had no part in the transaction, be similarly dismissed. Therefore I am of opinion that Sir F. Lugard, the present Governor, has no right or title to sue on these agreements, and that the fact that he alleges that he is suing on behalf of the Government does not alter the position of affairs, and therefore that a non-suit should be entered.
But it will be convenient if I treat the merits of the case as if I had not so held.
I revert now to the facts. The story as it is told by the documents is supplemented slightly by Mr. Bruce Shepherd's evidence given in an action which has already been tried between the successors of Yin Chow and the present defendant. This action, and the judgments given in it, will be specially considered hereafter. There was a judgment of the Privy Council, and that was put in, as well as the evidence in the trial. Res judicata was pleaded by the defence; but much to my surprise the learned Counsel for the defendant intimated that he did not intend to press the point. I am very strongly of opinion that in spite of the apparent difference in the parties to the two suits, the question is res judicata. I propose, as I am bound to, to consider that question hereafter. But what then is the position of affairs? If it is not res judicata it is res inter alios acta, and neither the decision nor any of the findings of fact which went to make up the decision are relevant to this action. Mr. Pollock did not object to the judgment being put in and read, for the very good reason that it contained a reference to Mr. Bruce Shepherd's evidence, and that let in that evidence, and that in its turn enabled Mr. Pollock to, as he said, impugn that evidence. Looking back at the trial, I think I ought to have insisted on its rejection, even though that course would have suited neither party. Its admission puts me in this practical difficulty, that in formulating my opinion on certain parts of the case I may appear to be criticising the findings of the Privy Council. I must however express the opinion I have formed, and I do so without reference to this judgment.
Mr. Shepherd's evidence was directed mainly to elucidating the intention of the Government when they allowed Chu Chuen to sign the first agreement, and this was Mr. Pollock's point; he wanted to show what the intention of the Government - or rather of Sir W. Des Voeux - was when he entered into the agreement. The effect of his evidence is this: that he tried to get Yin Chow to sign the agreements as the frontager of B and D, before the undertaking of 19th December was signed. But Yin Chow wanted to buy Chu Chuen's godowns on section A, but he wouldn't sign anything or agree to anything till he could settle with Chu Chuen about the purchase of section A and the Remaining Portion: in other words, till he could acquire the whole of the Marine Lot. But Chu Chuen wouldn't sell, and Yin Chow then said that it would be better for him to wait till Chu Chuen's death and then buy all the lot and get the reclamation cheaper. "Upon that," said Mr. Shepherd, "I decided that Chu Chuen should sign the agreement and enter into the guarantee, which he did. I spoke to Yin Chow as well as to Chu Chuen before the guarantee was settled or signed. Neither of them could agree as to how the equitable proportion should be settled. I told both Yin Chow and Chu Chuen that the equitable proportion could not mean the whole. I took the words 'equitable proportion' out of the Ordinance."
By "the whole" here Mr. Shepherd clearly meant the whole of the reclamation in front of sections B and D and not the whole of it in front of the lot. In cross-examination he said that he had taken the view that back section holders could have rights.
Mr. Shepherd then apparently produced in Court an opinion dated 1st November by Mr. Leach, the then Acting Attorney General, in which he had made a suggestion "that Mr. Bruce Shepherd should make another endeavour to get Yin Chow to sign the agreement, on the undertaking that if there is any question as to the equitable proportion he is to receive it can be adjusted afterwards." This opinion being in the evidence in the previous trial, and the judgments and proceedings having been put in by consent, this opinion could not be excluded. I am bound to say that I cannot see why it was admitted. There is in the first place a very salutary rule of the service, laid down by the Secretary of State, that Law Officers' opinions are not to be made public. This is not a rule of evidence it is true, which I...
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fin order: and if anything is done irregularly and out of order those officers who so act, the highest or the lowest, must take the conse- quences.
And in the case of this agreement, and indeed of almost (overy act of the then Government in this matter, the Ordinance has been treated as waste paper, and the Legistature as non-existent. Turn the case the other way. Suppose this agreement had resulted in the creation of rights in Chu Chuen, it matters not what, could a petition of right have been maintained against the Government? The first thing that the Attorney General of the day would say, and he would be bound to say it, is that the agreement was not entered into by or on behalf of the Government; that it was entered into by the Governor at the time being; that he had no right to enter into such an agreciment, and that it has never been ratified by the Council of Governmon.... The Court would uphold his contention, the plaintiff's remedy would be against the Governor who signed the agreement, and bis petition against the Government would be dismissed on the ground that there was no cause of action. A fortiori would an action against the present Governor, who had no part in the transaction, be similarly dismissed. Therefore I am
opinion that Sit F. Lugard, the present Governor, has no right or bitle to sue on these agreements, and that the fact that he alleges that be is suing on behalf of the Giovetament does not alter the position of affairs, and therefore that a non suit should be entered.
But it will be convenient if I treat the merits of the case as if I had not so held.
I revert now to the facts. The story as it is told by the documents is supplemented slightly by Mr. Bruce Shepherd's evidence given in an action which has already been tried between the succeska Ja of Yin Chow and the present defendant. This action, and the judgments given in it, will be specially considered hereafter. There was a judgment of the Privy Council, and that was put in, as we as the evidence in the trial Res judicata was pleaded by the defence; but much to my surprise the learned Counsel for the defendant intimated that he did not intend to press the point. I am very strong!) of opinion that in spite of the apparent difference in the parties to the two suits, the question is res judicata. 1 propose, as I am bound to, to consider that question hereafter. But what then is the position of altairs? If it is not res judicata it is res mter alios acta, and neither the decision nor any of the findings of fact which went to make up the decision are relevant to this action. Mr. Polock did not object to the judgment being put in and read, for the very good reason that it contained a reference to Mr. Bruce Shepherd's evidence, and that let in that evidence, and that in its turn enabled Mr. Pollock to, as he said, impugn that evidence. Looking back at the trial, I think I ought to have insisted on its rejection, even though that course would have suited neither party. Its admission puts me in this practical difficulty, that in formulating my opinion on certain parts of the case I may appear to be criticising the findings of the Privy Council. 1 must how- ever express the opinion I have formed, and I do so without reference to this judgment. Mr. Shepherd's evidence was directed mainly to elucidating the intention of the Government when they allowed Chu Chuen to sign the first agreement, and this was Mr. Pollock's point; he wanted to show what the intention of the Government- or rather of Sir W. Des Voeux-was when he entered into the agreement. effect of his evidence is this: that he tried to get Ym Chow to sign the agreements as the frontager of B and D, before the undertaking of 19th December was signed. But Yin Chow wanted to buy Chu Chaen's gedowns on section A, but he wouldn't sign anything or agree to anything till he could settle with Chu Chuen about the pur- chase of section A and the Remaining Portion: in other words, till he could acquire the whole of the Marine Lot, But Chu Chuen wouldn't sell, and Yiu Chow then said that it would be better for hún to wait till Chu Chuen's death and then buy all the lot and get the reclamation cheaper. "Upon that," said Mr. Shepherd, "I decided that Chu Chuen should sign the agreement and enter into the guarantee, which he did. I spoke to Yin Chow as well as to Chu Chuen before the guarantee was settled or signed. Neither of them could agree as to how the equitable proportion should be settled. I told both Yiu Chow and Chu Chuen that the equitable proportion could not mean the whole. I took the words equitable proportion out of the Ordi- nance."
By "the whole "here Mr. Shepherd clearly meant the whole of the reclaination in front of sections B and D and not the whole of it in front of the lot. In cross-examination he said that he had taken the view that back section holders could have rights.
The
Mr. Shepherd then apparently produced in Court an opinion dated 1st November by Mr. Leach, the then Acting Attorney General, in which he had made a suggestion "that Mr. Bruce Shepherd should make another endeavour to get Yiu Chow to sign the agreement, og the undertaking that if there is any question as to the equitable propor- tion he is to receive it can be adjusted afterwards." This opinion being in the evidence in the previous trial, and the judgments and pro- ceedings having been put in by consent, this opinion could not be excluded. I am bound to say that I cannot see why it was admitted. There is in the first place a very salutary rule of the service, laid down by the Secretary of State, that Law Officers' opinions are not to be made public. This is not a rule of evidence it is true, which I
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