NO FRAUD PROVED MAHUPUKU'S LAND

Evening Post, Volume LXXXIV, Issue 27, 31 July 1912, Page 8

NO FRAUD PROVED MAHUPUKU'S LAND

The decision of the Chief Justice (Sir Robert Stout) in the Mahupuku Native • land case was reversed by the Court of appeal to-day. When the case came before the Chief Justice (Sir Robert ' Stout) in the Supreme Court, Martha M'Cregor asked that (he Court declare void a memorandum of lease and the order confirming it, whereby Hamuera Tamahau Mahupuku and Horiana Ngatihini leased to Charles Harris (father of the present appellants) for a term of twenty-one years in future 6469 acres of land known as the Ngawaka-a-puke block. The plaintiff, (respondent in the present action) made allegations of fraud in support of her request for the declaration. The District Land Registrar was joined as a party to the dispute, but was unrepresented and submitted to tho judgment of the Court. His Honour decided that the transaction was both morally wrong and illegal; that the Court had no jurisdiction, to do what it had done; and that both the lease and confirmation were void. The judgment of the Court of Appeal •was delivered by Sir Joshua Williame : "There is nothing in the evidence," said hie Honour, "to suggest that the appellants in any way misled Mahupuku, or that lie was not aware what he, was about. He may have been influenced by motives of friendship for Charles Harris to let his sons have the lease in reversion at a lees rent than he otherwise would, and which was, in fact, inadequate, but there is no evidence to suggest anything in the nature of fraud either on the part of Charles Harris or of the appellants, or of their solicitors. Nor is there any suggestion that they in any way misled Judge Mackay. who was the Judge before whom the application was made. It ' may be that Judge Mair was altogether wrong in making tie order for confirmation, but there is nothing to show that he was acting in excess of his jurisdiction in so doing. . . It is possible that Judge Mair gave undue weight to matters which he ought not to nave taken into consideration, and neglected to consider matters which he ought £o have considered. This Court, however, has 'no jurisdiction to review his decision. There is nothing to show or to suggest that Judge "Mair' was in any way misled by any misetatements of the appellants or of their solicitor, or 'that they concealed from him • anything which ought to have been made ■known to him. Judge Mair was made aware of all the circumstances. The fact that the application had remained 6o long in abeyance, that it was not renewed until after the death of Mahupuku, and, until after Mr. Izard had been appointed trustee might have attracted his attention and have led him to make further enquiries. Whether, however, he should make fuither _ enquiries was a. matter- entirely within his discretion. There was no reason why ho should consider the payment of the £500 into the hands of Mr. Izard as being in the nature of a bribe to Mr. Izard. ... . If the payment was intended as a bribe, the solicitors who carried the transaction through inuat almost certainly have been parties to the corrupt bargain. It would be monstrous to suspect in advance that they •vruuld be parties to such a bargain, orafterwards to conclude, unless upon the clearest evidence, that there was Mich a hargain. In our opinion there was no evidence of a corrupt bargain. Whether the bargain was fair had to bo determined by the Native Land Court, whose duty at •was not to give effect .to the bargain, unlew the Court considered it fair. The Court was made aware by the appellants of all the circumstances. They misrepresented nothing; they concealed nothing. The Court, which had exclusive jurisdiction to ratify the bargain, having full knowledge of the attendant circumstances, ratified the bargain. "We are wholly unable to discover up to this point any fraudi on the part of the appellants or of their solicitors. This Court may consider that the appellants have got a much better bargain thjin they ought to have- This Court, however, has no jurisdiction to review the decision of the Court which confirmed the bargain, and which alone had jurisdiction to confirm it. It is suggested that as the lessees knew the lease was at an inadequate rent, it was a fraudulent action on their part to register it under the Land Transfer Act, co as to give themselves the protection which thai Act affords. Where a party has, obtained the decision of a Court of competent jurisdiction, it cannot be said to be fraud upon his part to take advantage of that decision beca-uso another tribunal which has no jurisdiction to review the decision is of opinion that ihe decision was wrong. Wo have considered the question oi fraud at length, because, if there was fraud, thore is no escaping the conclusion that the firm cf solicitors who conducted the application almost certainly were aware of ii, and must have been the principal actors in the fraud. It ie fair to them to make it clear that there is no evidence of the existence of fraud on their part." The appeal was allowed, with costs on the highest scale. Mr. Ward mentioned an appeal to the Privy Council, and asked that a caveat on the property be renewed pending this appeal. The Court deferred decision on this matter.