'File 14/115 VII Annex (B 9) Abu Musa oxide: collected background material on the case' [‎90v] (191/1904)

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1« Could sheikh Sakar cancel the Lease
i qo r bl ^? j<1 ' ® ;i ' iar j^ases his letter of the 22nd February, 1907 (9 Mobarrem,
.Annex 12 of the first German Memorandum), in which he informs Hassan
Samoi i ox the cancellation of the lease agreement, on a complaint made to him by Tsa of
^ coupon of the agreement with Wonckhaus, of which Isa did not approve and
t- ' 0 - 1 . WlU i l f" s ^ a ^ ew be had not been consulted. In consequence of the representa-
oions^ made try Hassan Samaih, Isa's complaint is again referred to in the second
MemOTa-^um)' 26th March ' 1907 ( n Safar . 1325)^ (Annex 16 of the first German
Sheikh Sakav himself very wisely does not anywhere state that he wished to play
ne p-.Xu o. a jufige, for according to Mohammedan public la w it is impossible for the
teoyereign to assume the functions of a judge. A judgment can only be given by a
juuge appouuea by the Sovereign. But the following further obiection maybe taken
to the view adopted m the British Memorandum : if Sakar is the owner and lessor of
m inamtamed in the British Memorandum, that circumstance alone is
ft! '• i' t : - n ■ 11L3 lom being a juage in this matter. It is, moreover, surprising
S V f. ^ government, as must be inferred from the Memorandum, should admit,
e j unsuiccum ot a sheikh on the Pirate Coast over British subjects, and that, too, in a
octse where the defendant Hassan Samaih resides, not in Shargeh. but at Lingah, in Persian
erntory, a«ajc^erefore m thej district of the British consulate-general at Bushire
ft u omnpnny itselt has its head-quarters "and' doinicilfor judlcuil purposes" at
x.mgaij bo tuat toe principle, acter sequitur foru which is generally so strictly
thirSheikh aPPear ^ ha T? been dro PP ed in this ««e- But assuming
that baeikh bakar had taken upon himself to act as judge in his own case, in spite of
such a .course being contrary to the principles of Mohammedan public law it still
ifeuiains to consider the further question whether his decision, cancelling of the
lease agreement and withdrawal of the mines, was in itself legallv admissible. 0 '
Isa complains that Hassan Samaih has concluded the agreement with Wonckhaus
and m domg^Has exceeded his power, and he is afraicfthat his ihter^te if^e
foTw 3 ! ^ ljl i f i! njUre h yy h } s agreement. It would have been the duty of the iudo-e
to colder wnether m concluding this agreement Hassan Samaih did really exceed
p^v/exg, oi w let ler, if he had authority to conclude the agreement, its conclusion had
nevertheless, injured the other shareholders. If the iudge found for the plaintiff the
S 6 ""1 , ' Wy be ei ! lier t0 the effeot that tbe had 'W conoludrf by
an unau.noribed person ana was, therefore, not binding on the company—in which case
. ^ostion Ot the amount of compensation to be paid to Mr. Wonckhaus wo-Td
nave had to be settled between the latter and Hassan Samaih—or to the effecUhrt
rtj. uiiougii tiie agreement ^ had been properly concluded and the companv were bound
to carry out its stipulations, Hassan Samaih was liable to make Joocl to the
shareholders the damage thereby entailed on them. 0 -o me otb.r
i.t may be admitted that a construction of the case in question accordino- to thft
of course from
1. , 1 ±1 X . • r " ^ ^ ci matter 01 course from an Arahiqn
siieikii, and that is why—apart from other considerations—such a sheikh is not usu'dV
allowed. to pronounce a judgment where the subjects of a European State are con
cerned. But what one is justified m expecting is that the judgment even of an
Arabian sheikh shah not violate natural justice as it has been violated V * ft
present case. The dispute between the shareholders is not" about the mines
themselves, but entirely about a question of the administration of the 00100011^ ^
T h *- 01 }' namely, whether a certain individual partner had authority to perform a
c. tain leaai a^t anci whether this legal act was in the interest of the whole bod'v or
not Ana what does tnejudge do? He, who is being appealed to by one
protect its rights which are believed to be threatened, and who ought' to oid^thp
interests 01 both plaintiff and defendant, doing justice between then" immr4lK 1
violence not only to both parties but also to the remaining sh^hdders X^t T
he djspate.^ly taMng away fto m the company and pnttog S hi ow" n"S
the whole_ valuable object m connection with which the company was founded and
.n which he alleges that he has himself a financial interest whi4 is not b^/]
satisfiea. l hat was an arbitrary act of the worst kind. " m l? duly
If, nevertheless, the British'Memorandum savs: " In no sense oft.hp wnrrl ,1.. + i
the adnaiassiDinty of the deeision itoelf, this line of argument heeomee intdligMe only