CO129-377 - Governor Sir Lugard - 1911 [5] — Page 306

...............

C.

12

it to him; and it being an agreement not only not warranted by the Ordinance, but in direct contravention of it, I cannot hold that it is in any sense a Government contract, in respect of which perhaps the pre- sent Governor might sue. Secondly, assuming the plaintiff to be the - right plaintiff, and this to be a Government contract, it is in its inception an illegal contract, because it was in direct contravention of the Ordi napce, and I do not think that an action would lie in such circumstances; but if there is any doubt on this point, it being said that Chu Chuen was particeps criminis, and so estopped from setting up the illegality of the contract, then I hold that the parties were never ad idem, and that if any one is estopped it would be the Government owing to the almost reckless neglect of the commonplaces of official correspondence.

Thirdly, putting at technicalities on one side, and assuming everything to be regular, and the action to be brought regularly on an ordinary contract, 1 proceed to deal with the inerent neaus pilotin's claim, thus:

ou the

(1) Specific performance of the undertaking given by Chu Chuen. This fails, because this undertaking is replaced by the sub- sequent undertaking given by his executors.

(2) Specific performance of the undertaking given by the cxecu- tors. But under this the equitable proportion or compensa- tion has first to be ascertained; therefore the time has but arrived for enforcing it, as there has been no ascertainment. (3) But the prayer for relief is so drafted as to make this action a suit for ascertaining the equitable proportion, and it prays for a declaration that "equitable proportion" means the equitable proportion as ascertained by the true interpretation of the Ordinance, which, in so far as it is not wrong, is innocuous; but by (4) a further declaration is prayed that the term "equitable proportion" as used in the undertaking means (put shortly) all the reclamation in front of sections B and D, and therefore (5) a further declaration is prayed that the defendant is bound to assign all this to Yiu Chow's successors in title.

>>

This fails, because it is based on a misconception of the Ordi- uance, the words "equitable proportion either with regard to Chu Chuen and Yiu Chow,

having no meaning whatever

Finally, putting even this on one side, and treating the action as what it in fact is, an action to enforce an agreement to ensure xin Chow s rights under the Ordinance, it fails because, owing to his own action, Yiu Chow had no rights under the Ordinance; and if it be looked at as an agreement with the Government, irrespective of any rights which Yiu now may or may not have had, it fails because the Governor at the time could not legally give him any.

With regard to this point some stress was laid by the Counsel for the Government on the case or Midland G. W. Railway of Ireland v. Johnson in which, although the facts have no resemblance to those in the present case, it was said there were certain dicta on the subject of mutual mistake which had a bearing on this case. It was said that this proposi- tion was warranted by it: that even if both parties to the contract were wrong, presumably in their interpretation of the Ordinance, the Court would interpret the contract according to the Ordmance. what the Lord Chancellor of Ireland had held in the Court below, and I think that is what the House of Lords refused to accept. On p. 812 of the report this passage occurs, But it is said that a Court of Equity may deal with it (the contract) upon the footing of what the parties believed, though errone- ously, to be the proper construction"; to which Lord Cheimsford replied: "It seems however to ine quite impossible to found an equity upon the ground of mutual mistake, to the extent of making a different contract from the one agreed to by the parties, and yet that must necessarily be the result of the equity which is here sought to be applied." And at the close of the judgment he adds, "upon the ground of a supposed misappre- hension of the parties as to their rights, he (the Lord Chancellor of Ireland) gives relief to the extent of annulling the contract into which they have entered and imposing a new one upon them: and thus has as- sumed a jurisdiction beyond any which, as far as I can discover, has ever before been exercised by a Court of Equity."

The case therefore seems to me to lay down a proposition the reverse of that which has been contended for, and in so far as it has any bearing upon the present case, i.c. assuming there to have been a mutual mistake, which I do not think is true, that it is against the Government.

I now deal with the question of estoppel which was raised by the defendant, but which at the hearing Mr. Slade intimated that he did not intend to press, as he was in great doubt whether the plea could be main- tained, on account of the difference ia the parties to the two suits. intimated, however, that I thought it was impossible for the Court not at least to consider the question. Even if I am not bound to consider the law in the circumstances, I think the respect which a Colonial Court is bound to show to the Judicial Committee makes it incumbent on me to consider the question, for I am practically asked, and was in fact asked, not merely to give judgment which is at variance with the judgment of the Privy Council in the previous case; but also to come to a different conclusion from that at which the Privy Council arrived on some of the facts of the case. If I have done so in the judgment 1 have delivered,

297