CO129-377 - Governor Sir Lugard - 1911 [5] — Page 303

9

the conditions. Yiu Chow was entitled (subject to the discretion of the Governor under s. 8 (2) to which I have already alluded) under the scheme sanctioned by the Council to the whole of the reclamation in front ot sections B and D; to the whole or nothing if he chose to accept within the time limited. The money equivalent referred clearly, and so did Mr. Leach's opinion, to the solution of the dispute who should buy the other out. I here omit the time question, and even the fact that You Cbow refused to have any thing to do with it. I am not surprised that Chu Chuen should have immediately replied, "I am glad to find that the Governor takes my view of the situation," and that his Counsel should say throughout the trial that he always was, and that his executors now are, ready and willing, to carry out the agreement: i.c., the agreement as they understand it, and as Chu Chuen always understood it. I am therefore of opinion that, putting aside all questions of illegality, even this first sup plementary agreement does not bear out the Government contention in this case. And when we come to the second supplementary agreement the Case, in my opinion, is absolutely gone.

I pointed out, and the question was specially re-argued, that this view derived considerable support from the fact that there were two agreements, one in respect of the Remaining Portion, the other in respect Sections B and D, in which Chu Chuen is described simply as the Crown Lessee of Marine Lot 53A, and the supplementary agreement is attached 1. this second agreement (Exhibit D). Even therefore if I construed the word agreement" in this document as referring to the two agreements, there is still the difficulty of understanding what the Government meant; and I wonder if the Government, in which apparently there were divided counsels, had any very clear idea themselves of what they meant. It is act apparent from the correspondence.

But when we get to Exhibits E and F, the agreements with Chu Chuen's executors, the difficulty of tracing what the Government now says it meant is intensified. Again there are two agreements, the first in respect of the Remaining Portion, corresponding with C, and the other in respect of what is described by the plan as "Praya Reclamation to Marine Lot 53A Eastern portion," the words "section D and section B of" being crossed out. This is repeated in the plan itself. The supplementary agreement is also attached to this agreement (F). My attention was called to the Colonial Secretary's letter in which it is said that the executors will be let into possession on signing an agreement in the same terms as the one entered into with Chu Chuen. And so far as the condition as to assigning au equitable proportion or an equivalent in money to the owners of sections B and D is concerned, it is the same, except for the alition when such equitable proportion or compensation shall have been ascertained." But the subject of the condition is completely changed.

17

In Dit was "the Reclamation of the foreshore in front of the said lot," that is the whole of the reclamation; in Fit ruas as follows: 'in consideration of the agreement entered into for possession of the reclama- tion in front of Marine Lot 53A, described in the said agreement as the Reclamation to Marine Lot 53A, Eastern Portion," the executors agree "either to assign an equitable proportion of the said reclamation," or pay an equivalent in money to the owners of sections B and D.

It was very strongly contended on behalf of the plaintiff that the words "the said Keclamation" referred to the words "the Reclamation in front of Marine Lot 53A"; but on no principles of grainmatical construction is this possible; it can only relate to that part of the reclamation "which is described in the agreement," and to which the supplementary agreement relates, i.e. the reclamation to Marine Lot 53A Eastern Portion." How it came about I cannot tell: I can only again suggest divided counsels, or an absolute want of understanding on the part of the Government as to what its officers meaut. But this agreement is made in exactly the way Chu Chuen wished it, that is to say, that an equitable proportion of the reciarcation in front of Sections B and D was to be assigned to Yiu Chow when it shall have been ascertained, or compensation: which means neither more or less than a recognition of the rights of the back section holders, which had been recognised in the Colonial Secretary's letter of 5th Dec., and in Mr. Shepherd's of 14th May, 1891. The Government contends that it means the whole reclamation in front of the whole lot, and not merely in front of sections B and D; then the Government should have said so, and not used words, which, if that was their intention, would be meaning- less. On the face of the agreement the case of the Government, treating this as an action by the Government, is therefore gone. I must note that in the supplementary agreement, Exhibit D, made with Chu Chuten, Section C is also introduced, thus "Sections B, C, D," being struck out in red ink; when we do not know. It does however bear out Mr. Lister's letter, which required an equitable proportion to be assigned | to the holder of Section C, as well as to the holder of Sections B and D. Now in all this one thing is most noticeable. Yiu Chow's name does not appear, nor in fact, as we know from the evidence, did he take any part in the negotiations. The Government's duty to the Colony under the Ordinance was clear; what they have done is to give property to Chu Chuen to which he was not entitled, and they have fettered it with a condition which was a wrong condition if it had any meaning, because it attempted to secure property to a wan, to which he also was not entitled; and all this for the sake of a man who would have nothing to do with it, and who would not sign or be a party to the agreement.

294