COURT OF APPEAL.

New Zealand Times, Volume XXIX, Issue 4256, 10 November 1874, Page 2

COURT OF APPEAL.

Monday, November 9. (Before Sir G. A. Aruey, Chief Justice ; Mr. .Tnsfrinft Jtioticu Oresson.) ~ Their Honors took their seats on the bench at three o’clock. TULLT V. NGATUERE AND OTHERS. Mr. Brandon appeared for the plaintiff, Mr. Hart for the defendant. The case is one to which frequent reference has been made in the Wellington newspapers during the past two years, but as it has not previously been before the higher courts it is necessary to recapitulate the facts upon which the arguments of counsel are founded. The action is brought by Mr. Tully, to recover a piece of land at Ahikouka, situated on tho Waiohiue river, Wairarapa district. This laud was leased to him by Matiaha and other natives who, in 1870, gave notice, in accordance with the provisions of the Native Land Act then in force, that they claimed to be the rightful owners of the land, and desired that their claim might be investigated by the proper tribunal. Their claim was investigated and they were declared to be the true owners, but in consequence of representations made by a rival section of the tribe, headed by Ngatuere, the claim was reheard in February, 1872, and a certificate of title, under the hand of F. D. Fenton, Esq., Chief Judge of tho Native Land Court, and dated the 23rd October, 1872, was ordered to issue. Ngatuere, being still dissatisfied, made further representations to the General Government, who directed a council of influential chiefs to investigate the matter. These chiefs visited the locality of the laud in dispute, and upon the evidence taken they decided that Ngatuere, and those who acted with him, had clearly established their claim. In accordance with this decision portion of Ahikouka was awarded to Ngatuere, which portion included the land leased to Mr. Tully by Matiaha, who, as already stated, had been twice declared by the Native Land Court to be the rightful owner of the land. Ngatuere, however, took possession of the land in accordance with the award of the council of chiefs ; and the action was brought to establish Mr. Tully’s right to the possession of the land in accordance with the terms of his lease. The case was not argued before tho lower court, tho points involved being, by consent, embodied in a special case for submission to the Court of Appeal. The case prepared showed that all the proceedings taken by the plaintiff and his lessors were regular and in accordance with the Native Lands Frauds Prevention Act, 1870; that all duty payable in respect of the lease was duly paid before the commencement of the action ; that no Crown grant for the laud had been issued; and that tho certificate mentioned was not in the possession of tho lessors of the plaintiff; nor had it been delivered to them. The defendants averred that they and those through whom they claimed had been from a time previous to the Ist January, 1840, the owners and occupiers, according to native custom, of the land sought to be recovei'ed by the plaintiff, and they submitted that the plaintiff could not recover because a Crown grant for the land had not been issued. Tho parties to the suit agreed that if the Court should be of opinion that the legal estate was at tho commencement of the action vested in the plaintiff’s lessors, or that they had a sufficient title to enable their lessee to recover as against the defendants, then judg- • raont was to be given for the plaintiff; but that if the Court should bo of opinion that tho plaintiff could not recover by reason of the non issue of the Crown grant, or that the lessors had not sufficient title to enable their lessee to recover possession as against the defendant, then judgment was to be given for the defendants. Mr. Brandon said tho real question the Court had to decide was as to the vesting of the legal estate. The proceedings taken by the lessors were taken under tho Native Lands Act, 1865, and by the 21st section of that Act any native might give notice in writing to the Court that he claimed to be interested in certain lands, and that he desired to have the claim investigated by tho Court in order that the title to tho land should be vested in him. The Act then provided for investigation of title and marking off tho boundaries, for the issue and transmission of the certificate to the Governor ; and by tho 48th section it was specially stipulated that “ such certificate shall have the legal effect and consequence of an

ordinary grant from the Crown.” All these provisions of the Act have been observed, but the 26th section of the Act of 1865 contained the real point at issue ; and in accordance with the terms of that section he contended, on the part of the plaintiff, that he was entitled to the legal estate, which should have been vested in hia lessors immediately upon the certificate being granted by the Native Land Court and forwarded to the Governor. The signing of the grant was, he contended, merely a ministerial act, for the Act of 1867 said that notwithstanding the delay in issuing the Crown grant, the holder of the certificate of the Native Laud Court shall be clothed with the legal estate for all purposes whatsoever. That was the completion of the title, whether the' Crown grant were issued or not. He would direct the attention of the Court, therefore, to the Crown Grant Act, 1867, and the Native Land Acts of 1865 and 1867, and say whether they did not all tend to the principle that, notwithstanding the non-performance of the ministerial act of issuing the Crown grant, the person to whom the certificate was granted shall be put in possession of all the belongings and attributes of a person having an undisputed right to the property claimed. The learned counsel quoted authorities in support of his argument, at the conclusion of which The court adjourned till eleven o’clock next day.