SUPREME COURT.—IN BANCO. Friday, May 13. [Before his Honor Sir G. A. Arney, Chief Justice.]

Daily Southern Cross, Volume XXVI, Issue 3971, 14 May 1870, Page 4

SUPREME COURT.—IN BANCO. Friday, May 13. [Before his Honor Sir G. A. Arney, Chief Justice.]

The Court Sat aftar ihe fconelusion of busi- ' ness in Chambers.

JUDGMENT. IIEGINA Y. PINIHA AND OTHERS. — The Chief Justice, gave judgment as follows :—: — Upon the argument of this case, a considerable array of authorities and of statutes were ably reviewed, which I deemed it necessary to cdnsult before attempting to form any opinion upon the right of the prosecutors of this scire facias to the judgment of the Court. Having done so as fully as the pressure of other business has allowed, T have come to the conclusion that this declaration in scire facias is bad, and that judgment on these demurrers must pass for those defendants who have appeared to answer the writ $ certain of the defendants, including the native grantees themselves, tlot having appeared at all. The writ and declaration set forth a grant from the Crown, bearing date the 3rd day of May, 1869, of a piece oi land to certain natives, to hold the same to the grantees as from the 15th day of January, 1869, and then proceeds to allege the grounds on which the prosecutors claim that this Crown grant, ,and the enrolment thereof, be , cancelled, vacated, and disallowed. The declaration sets forth that at the time the letters patent were granted, the certificate of title issued by the Native Lands Gourt, upon which the said letters patent were founded, bore an erroneous date, and thereby the Crown was misled in its grant ; that the Crown was misinformed in the said letters patent in granting the land to the grantees to hold as from- the 15th day of January, 1869 ; and that injustice the said land should have been granted, to the grantees to hold as from the 27th of June, 1868. I think that such general averments do not, per se, disclose sufficient grounds to justify this Court in declaring this grant void, or in ordering it to be cancelled. But the Court was invited to interpret the above averments by the light of the Crown Grants Act, 1866, and the Crown Grants Amendment Act, 1867, whereby provisions are made for antevesting tho legal estate in certain grantees of land from the Crown. By section 7of the latter Act, it is provided that th« dates at which the grantees referred to iv section 26 of the Ciown Grants Act, 1866, shall be deemed entitled to receive Crown grants of their lands shall be— in the case of grantees of land the title to which has been decided in the Native Lands Court — the date of the certificate or interlocutory order issued by such Court with reference to such lands respectively. It was tlience argued that it might be inferred from the above-mentioned averments in the declai-a-tion, read in connection with the aboverecited enactments, that the certificate of title alluded to in the declaration ought to and might have born date the 27th of June, 1868; and further that, if such certificate had been so dated, the grantees would then have been entitled to their Crown grant, and the Crown would have executed the same, to hold as from the 27th of June, 1868, instead of from the 15th of January, 1869. But in thus reading the declaration it is assumed that th« grantees come within the scope of the 26th section of the Crown Grants Act, 1866, whereas its provisions are expressly confined to grantees of Crown lands, and do not extend to grantees of native lands at all. Whether, therefore, these allegations of the declaration be read as they are pleaded, or be helped by such interpretation as above suggested, they seem to assert no more than this, viz., that the Crown, while exercising its statutory powers in making this grant, and while granting all that it could grant, was at the same time mistaken in supposing that the law would antevest the legal estate at an earlier day than its grant imported. It is not suggested (and one ground of demurrer so objects) that the ! Crown was misled or misinformed by the [ grantees themselves, or by the defendants, I who must be supposed to derive title under those grantees. Neither has the Crown granted a larger estate than it meant to I grant ; on the contrary, the case for the [ prosecutor is, that the Crown intended to grant all which it has granted, and even supposed that its grant would operate by virtue of the statutes to pass something more, So far, then, as this part of the declar ition goes, 1 think that the error in the date of the certificate of title, as pleaded, does not take this case out of the rule laid down by Eyre, J., in Reg. v, Kemp (12, Mod. Rep , 138), that if the Crown be not deceived by any matter suggested by the grantee, but is only mistaken in its own affirmation or surmises, although it be iv the law itself, the grant -is good. But the declaration further charges that the agents of the Crown were induced to prepare and obtain the execution of the said letters patent for the fraudulent purpose of defeating and depriving clivers persons of estates in the said lands, granted, or expressed to be granted, by the said grantee 3, prior to the said fifteenth day of January, 1869, but subsequently to the 29th of June, 186 S. To this part of the declaration it is objected by the demurrers that no fraud, misrepresentation, or deceit is imputed to the grantees of the Crown, or to those claiming under them ; and further that the declaration does not show that the estates supposed to have been so defeated were granted after the issuing of the certificate of title, or that such estates ever were defeated. These objections are important, because any conveyance affecting native land iv respect of which a certificate of title had not been issued was, by section 75 of the Native Lands Act, 1865, absolutely void ; and I think that, as every reasonable intendment must be made in supportof an existinggrantfrotntheCrown, the Court would expect, at least, that a prima facie lawful title should be alleged in those whose grants are set up in competition with that grant which the Court is asked to cancel. This the more especially, considering that if the construction already put upon the Crown Grants Acts, 1865 and 1866, be correct, those persons, whose estates it is alleged were to be defeated, could hay had no estates in the premises whereof they could be deprived by anyone whatever. Lastly, it is objected by these demurrers}, that the prosecutors, Graham and Hogg, are not alleged to have sustained any injury or wrong, nor ever to have had any estate in in the land, the subject of the Crovra grant. To this it was answered that their interest in the subject-matter is proved by the fact that the Attorney -General baa granted his fiat to those gentlemen, and further that the fiat is matter of right. It is matter of right, doubtless, to those who show themselves entitled to it'; and in patents for inventions unduly granted, whereby a monopoly is created, every member of the community may be considered to be in a certain sense aggrieved, and entitled -to his remedy by scire facias. But lam not aware of any , case in which conflictingrights inthesame matter of grant or franchise have been raised upon scire facias ; and the prosecutor has assumed to declare upon a mere general allegation of interest, without setting forth some prima , facie title in himself . Sir Oliver Butler's case, as reported in 3 Lev., 220, is but an example of the "general practice in this respect. At all events, whatever might be the weight of this objection, if it alone, as ground of general demurrer, 1 think that -a mere I, general allegation that the letters patent jmpeaohed operate to the prejudice of the prosecutors, whd are not shown to be in any way interested in the matter of those letters, ! does not help this otherwise defective declaration, so .as to entitle Ahem to demand that the same' be' cancelled/ It is not necessary to. follow b'u£ all the various grounds of de-~ mnjr&r alleged; for enough has,'S think, been said to warrant; the jCourt in j ordering judgment, t(O pass 'for the .defendants, , and that" tWy^do r.ecpver their co.sts..^ / , Mr. "^lacCormJck' applied .for leave W i&i.:?- -H^ #''- ''"< ' '*'/! /r --Mr. * Rees :-:Thefe^ cannot be amendment j 'the' declaration mast follow, the writ. - '^M/^ac'CdnnicksMd^h^^/w^tof^ci/ii.;.

tion ; and" he applied for leave to amend the Writ as well as the declaration. Leave to amend was granted, on payment of the costs of the demiirrer'* PBOHIBITION. Mr. Whitaker (with him Mr. Rees) movedto mate absolute a rule nisi, obtained on ' behalf of John Lundon and Frederick Alexander Whitaker, as against Eobert Graham, calling upon Robert Graham, the Native Lands Court, and the Judges thereof, to show cause Why d -writ of prohibition to the said Judges should not issue, prohibiting them, or any of them, from issuing an' amended certificate as to lot No. 14, Kauwaeranga, upon the grounds — 1. That, at the hearing before the Chief Judge, no evidence was given of the necessary surveys having been made, or the ground having been marked out as required by the Native Lands Act, 1865, and the Native Lands Act, 1867. — 2. That the said Court made an order in the matter, that an, amended certificate should be issued, declaring the day on which the legal estate in the lands comprised therein should be deemed to be vested, such day being prior to the date on which the order for the certificate of title was made in the said Court.— 3. That the Court did not hear and determine thB application with reference to the " circumstances and justice of the case, as required by the Native Lands Act, 1869. Mr. MacCormick showed cause. He recapitulated fully the statements in various affidavits [the substance of which has been published, and which comprise little other than facts -which have beenvpublished half-a-dozen times]. As to the ; first ground on which the rule had been obtained, he did not know that there was any provision in the Act of 1867 which had reference to the point The Act of 1865 provided, (section 25) that the Court shall not proceed to a decision upon any such claim — on an application for a certificate of title — unless there shall be produced during -the. [investigation a survey of the lands claimed, - -made by a licensed surveyor j and unless it sha.ll be proved that the boundaries of the claim' were marked on the ground. But the 71st section of the same Act provided that it should be lawful for the Court to proceed with any trial, investigation, or other proceeding, and to hear and determine the same, without any survey having previously been made, , any provision to the contrary, in, other seotions of the Act, notwithstanding. The ground taken, here was, not thai; the Court had made an order for a certificate of title, but that the Court had intimated its intention to make an order. It was to be assumed that, before making an order, the Native Lands Court would satisfy itself that the requirements of the law had been complied with - , that the Court would not act illegally. lln fact, the affidavit of Mr. Macdonald showed that the land had been properly worked out and surveyed. But, in an application under the Bth section |of the Act of 1869, as this application was, it was not necessary to prove marking out ; for the section related wholly to certain certificates of title, and therefore assumed that everything as to marking out and survey, in such an application, had been done, and been proved to have been done. No objection, on this point, was raised in the Court below, and, therefore, the doctrine of waiver would now apply. As to the second ground, it was submitted, that the only judgment which the Court below bad given was, that the applicant, Robert Uraham, was entitled to the relief asked for. The mode in which that relief was to be given was a matter m which the Court only had an interest. It might be by the issue of a fresh certificate ; or it might be by the amending of the then existing certificate. This Court would certainly not go the length of prohibiting tbe issue of a certificate at all, simply because the Native Lands Court had intimated an intention to carry out its judgment iv a particular form, when it was still competent for the Court to carry out the judgment in another form. Che Chief Justice : The Court did make an order ? Mr. MacCormick : So it might be supposed ; but there was amongst the papers before this Court only a statement of what the Chief Judge said would be the order — there was no document which purported to be a copy of anything called an order. The true view to be taken of the Bth section of the Act of 1869 was that it was in itself a substantive enactment, for it comprised a preamble clearly explaining the object of the Legislature in passing such an enactment. It was to be assumed that the Legislature recognised that the operation of the 75th section of the Act of 1865 had not only worked injustice, but had caused great public wrong ; and the Bth section of the Act of 1869 was so far a repeal of that 75th section. Those who are entitled to the relief hereby proposed to be given (so the Bth section must be read) shall be put into the position they would have been in if the 75th section of the Act of 1865 had no operation. The power given by the Bth section was, not to revoke or to recall any certificate of title — not to issue a fresh certificate, or in any sense to commence de novo — but simply to amend something that had been done, or to alter or mould a decree, so that the justice of a case of a particular class might be met. The Native Lands Court, by the Bth section, was empowered to issue amended certificates in accordance with the Act, each such certificate declaring a day therein for the vesting of the legal estate, being the date of the order for the certificate itself — not the date of the amended certificate, for if that could have been contemplated, different words would have been used by the Legislature. The Native Lands Court had power to do what the Chief Judge had said it was the intention of the Court to do : if it had not the power, the remedy was to ask the Court to rescind or amend its order. Prohibition would not issue to restrain an inferior Court, unless the party was almost without other remedy — had exhausted the powers of the Court below. It would be competent to any persoa entitled to appear in that Court, to apply in the present case for an amendment of the order ; but it was submitted that Messrs. P. A. Whitaker and John Lundon, on behalf o£ whom this motion must be taken as being made, were, upon the affidavits they had filed, not persons having a locus standi as to the matter. They were not shown to be persons who had had such " dealings and transactions" as those with respect to jvhich the Act of 1860 was meant to give relief. The Native Lands Court could have declined to hear Whitaker and Lundon ; for it could not be suggested that they were "counter claimants, in any sense within the meaning of the Act of 1865. As, to the third ground of. the rule, if the Court below did not determine this particular case upon ' { the circumstances and -justice of the case," that the Court had failed was The fault of those now applying for prohibition. What had been done below was done with the consent of these parties, and they could not now obtain prohibition. For the various reasons urged, it iwas submitted that the rnle nisi must be discharged. The Court rose ; it <being understood that Mr. Whitaker would reply on. Tuesday next.