LAW AND POLICE.

New Zealand Herald, Volume XXV, Issue 9140, 23 August 1888, Page 3

LAW AND POLICE.

SUPREME COURT.—In Banco. Wednesday.

[Before His Honor Mr. Justice Gillies.] Taonui Hikaka v. J. E. Macdonald and Anuthkr.—This was an application by the plaintiff for a writ of prohibition to Mr. J. E. Macdonald and Major Scannell, Judges of the Native Lands Court, to restrain them from issuing , certificates of title to certain land in the Taupo district. Mr. E. Hesketh appeared for the plaintiff, Mr. Theo. Cooper for Hitiri Paerata, who had made a similar application for a writ of prohibition, and Mr. Button appeared for the defendants. It was decided, as a matter of convenience to proceed with Taonui's case, and Mr. Cooper appeared with Mr. Hesketh in it. This was an important case, as it dealt with an area of upwards of a million acres of land, known as the Taupanui Atea Block, Taupo district. The principal features of the case, as stated by Mr. Hesketh, and set out at great length in the statement of claim, were as follow : —ln pursuance of a notice published a sitting , of the Native Lands Court was held before Judges Brookfield and Scannell, and Nikorima Poutotara, assessors,at which Te Heuheu and other members of the Ngatitiwharetoa tribe, attended as claimants, and there were certain counter claimants, amongst others Taonui, who appeared for himself and other members of the Ngatiamaniapoto tribe, claiming to be the owners of a large portion of the block. It was, it so happened, the first time he had been in Court, and when he protested against the Court dealing with his land, he was fined for contempt, and he then went home. The Court found that the land belonged to certain hapus. It continued to sit until April, and then adjourned until the 30th September at Taupo. It was contended that the Court did not sit on that day, and that was the most important point, namely, as to whether the Uourt was then adjourned, and so kept alive, or whether it lapsed. Mr. Button said it would not be contended that the Court did sit, but that it was adjourned by one of the Judges, and that he had power to do so. Mr. Hesketh said Judge Scannell went into the building at Taupo, and professed to adjourn the Court until January, but prior to this Mr. Hammond, Registrar of the Native Lands Court, issued a notice that the Court would not sit on the 30th of September. This notice was received by Nikorima, the assessor, and he did not attend in consequence. The Court resumed its sitting in the following January, conlinued its proceeding?, and gave judgment. The time of the Court was occupied in livisions of the area, and finding out what iiapus were entitled to each, but there was :»o survey map, nothing but a sketch plan, uid no certificates of title had yet been issued, as the plans and surveys had not been made. The contention was that the lefendants, the Judges, had not done what he Act requires; that the bulk of the work was done after the 30th of September, ind that the Court not having been adjourned, but lapsed, and that all that was done after that was a nullity. That was rhe chief point at issue, as to the power of he Judge to adjourn, and if that was dealt with at first it might shorten the case, for if it was given in favour of plaintiff it would terminate the case. The statement of claim set out the plaintiffs claim to the land. When he became aware that a Court was to be held for an investigaiion of title on the 14th of January, he .•ailed a meeting of the Ngatimaniapoto Irlbe to see what steps should be taken, as they were owners of certain portions of the block. It was then agreed that plaintiffs I'aonui and Te Paerata, on behalf of the whole tribe, should attend the sitting and object to the four blocks which they •laimed. On the following day, however, laonui was summoned as a witness to attend the Resident Magistrate's Court at Cambridge, and being detained he sent a telegram asking the Court not to proceed with the investigation until his arrival, and .stating the reason for his detention. On being released from the Resident) Magisi rate's Court he proceeded to Taupo, but found that the Court had sat on the 4th of January, and adjudicated i)u the block, and his objection was not allowed. He informed the Court i hat he claimed the blocks, but the Court proceeded to deal with the land, and fined iiim for contempt, and he returned to Otolohanga. A lengthy statement of defence was put in by Mr. Macdonald, Chief Judge, in which it was alleged that the Court was legally adjourned on the 30bh of September. L'hat the title to the land had not been settled when Taonui appeared on behalf of the Ngatimaniapoto, and that other members of that tribe appeared in support of their claims, and the Court found that they were not entitled to the land they claimed. The affidavits were very lengthy. Mr. Hesketh then proceeded to argue that the Court, not being properly constituted, could not be adjourned ; and having dealt with this phase of the case, he proceeded to deal with the others, as to the question of division and subdivisions of the block on which the Court was engaged, and whether ■>uch division and subdivisions had been made ; and, in conclusion, he contended that the plaintiff was entitled to the writ of prohibition. Mr. Cooper followed, contending that the Court had lapsed, as there was no adjournment in September, 1886, and all that was done subsequently was done without jurisdiction. He submitted that there could be no sitting of the Court, unless at least one assessor was present, and there could consequently be no adjournment. Mr. Button replied, and the first point he took was that there was acquiescence in the proceedings on the part of the plaintiffs by an application for a re-hearing, and taking part in it. He then objected that all the matters alleged were questions of irregularity, and he quoted a number of authorities. He contended that the question of adjournment was within the jurisdiction of the inferior Court, and that the Court that sat subsequently was the sole judge of whether the adjournment had been regular and properly made. Ho then proceeded to argue that power was given to the Judge to adjourn in the absence of an assessor, as he had all the powers of the Court, except in judicial acts and proceedings, and the adjournment was not such a judicial proceeding, such as was contemplated by section 11, for by section 18 the Judge had the power to adjourn, and there was nothing to show that to constitute a Court an assessor must be present, and the concurrence of the assessor in the adjournment was not required. So far as the other matters of division and subdivision it was not, Mr. Button said, necessary to go into them as they were questions of procedure, and not subjects for prohibition to issue on. Mr. Hesketh replied on the point of the adjournment. He contended that if a Court lapsed and sat again there was no authority to support the position that they were the judges of the legality or otherwise of that adjournment. His Honor, in delivering judgment, said in his opinion this was not a case in which a writ of prohibition ought to be granted. There were two main grounds on which the application was founded. The first was that the Court was improperly adjourned, no assessor being present. It was admitted that had one judge and an assessor been present, he had the power to have gone on with the proceedings, and therefore he clearly had the right to adjourn. But it was contended that there was no Court, as there was no assessor present. Now when he looked at Section 11, he saw that one or more assessors must sit at every Court (but not to form part of the Court). If that stood alone, the adjournment would be a judicial act, requiring the assent of the assessor, but Section 18 showed that it was not a judicial act requiring the concurrence of the assessor, but that the judge alone had power to adjourn, and if that was sufficient there was no ground for saying that the Court lapsed. As to the division and subdivision he held that sections 25 and 34 were complementary, and provided for the Judges cutting up the block at the time of hearing, and awarding tho divisions to separate individual claimants, and this was something different to the sub-divisions referred to in section 43, which only came into operation after the titles to the whole block had been declared, and by which each person was to get the portion to which he was entitled. Sections 25 and 34 clearly referred to the time of hearing. He could see no ground for saying that the Court could not do this ; and he did not think that any of the grounds put forward were sufficient to warrant prohibition. He did not deal with the question of acquiescence, as it was not necessary to do so. The application would be, therefore, refused. Costs £15 15s, and money out) of pocket were allowed.

Special Cask for Argument.—ln the matter of the Land Transfer Act, 1885, and the matter of a certain application for registration, Mr. Stone had moved a special case for argument. The application by arrangement was adjourned until the first banco sittings after the sessions.