'File 14/115 VII Annex (B 9) Abu Musa oxide: collected background material on the case' [‎130v] (271/1904)

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opinion impugnable, and in any case entitled to no weiglit. Tlie German Firm nave
evidently had recourse to, or introduced to their Consul, not " leading merchants
as they suggest or persons whose opinions are of any value, but just a particular
clique of individuals in Lingah, who are notoriously hostile to British interests and
influence.
In refutation of this evidence, I bring forward the opinions of 11 representa.^
tive merchants (Annexes 17 and 18), from different parts of the littoral,
all of whom express the view that the lease is invalid according to the
Commercial Law of Islam, because it lacks both specification of period and is
devoid of any record of the pronunciation of the proposal and acceptance formulae
considered to be a necessary feature of such documents.
{^) According to religious law the lease agreement is ivmdid* * *.•
son who discovers or works the mines thereby acq * *
*. HasanSamaiyeh or the Company of Le
right to them. —I submit a quantity of weighty testimony from numerous members of
the clergy, including the chief priests of Lingah and Bushire, both Sunni and
Shiah (Annexes 19 to 23). They were unanimous in the opinion that the lease
agreement is invalid for several specific reasons,
{i) Non-pronunciation, and record of the usual formula of proposal and
acceptance ;
{ii) Non-specification of period ;
(iii) Non-specification of the amount of profit to be derived by the lessee.
It will be seen that two separate questions were put to the clergy { Annexes 19.
81 and 23).-
In the first place :
(A). As to the validity of the document according to Shara Law ;
Then afterwards, the invalidity of the document having been admitted,
(B) (i) (B) (ii). As to the right of the less/e'r to cancel it and eject the lessee,
and resume the control of his property.
The concensus of these opinions entirely supports the view that the lease was
invalid and that the lessor of the property is entitled to cancel the lease and resume
his property. I would especially point to the opinions recorded by Abdarrahman
bin Abdul Ghafoor El Mufti, who has a very high reputation among"the inhabitants
of the littoral and islands.
As regards the clerical contention, relied on in the German rejoinder, that
in Islam mines are the common property of all Muhammadans, and that anybody
who works them has thereby acquired an indefeasible right to them. The clergv
of Islam may continue in the abstract to cherish this ancient and chimerical tenet,
which had its origin in the interested aim of the Muhammadanl|#archv
to keep matters concerning mines and the exploitation of minerals in tfieir ow'n
control, but no one can pay serious attention to such an exploded claim at the
present day, much less contemplate giving effect Co it in practice. It seems waste
of time to discuss it.
The conclusion to be drawn from the opinions now produced is that the lease
was bad in law, whether commercial or religious; that Shaikh Sagar or Shaikh
Salim (they were both of one mind, so it matters not which) had the right to
cancel it and eject the lessees ; and that it ceased to be operative from the moment
it was cancelled. I may record the personal view that the cancellation by a* Ruling
Shaikh of a concession granted to British subjects is not a matter which we should
allowtobedecidedby a round robin of recorded views, either of merchants or
clergy, and that I regard both as mere padding. As, however, the German
claimants have had resource to it, we produce similar stuff in refutation,
(44) The sale to foreigners is not a b —No. It was not
suggested that the sale of oxide to foreigners was a breach of the agreement, but
the grant of a monopoly to a person, not under the control of the Shaikh or
ourselves, was, in the opinion of the Shaikh, a breach of the -anderkandina on
which the concession was granted. ' " -