THE COURTS.

New Zealand Times, Volume LI, Issue 8523, 1 November 1888, Page 3

THE COURTS.

SUPREME COURT.—IN BANCO.

Wednesday, October 31. (Before his Honour Mr Justice Richmond.) ATIATA AND OTHERS Y. SEYMOUR AND ' , ANOTHER. " , , ' This case, which was adjourned from Wednesday last' in .order . that the state-' merit of claim might he , made morp specific, was now argued. The original statement of claim asked for an injunction restraining the defendants from* selling the ‘Whangara Block under writ of sale upon the judgment recovered by the defendant in an action Apiata v. Seymour, reported in 6 N.Z.L.R., 331; and stated that the block was held by the plaintiffs, and more than . 100 other Natives; under certificate of title, issued under the 17th section of the Native Land Act, 1867, and had never , been-.subdivided or dealt with otherwise than by lease, and that the block had been * decided to he inalienable in the case of Seymour v. Mac donald, reported in N.Z.L.R.,'S,_CA. : , 167The amended statement of claim stated that the Native Land Court, by order under section 17 of the Native Lands Act, 186?, dated the 2nd December, 1870, awarded the block, to the plaintiffs and others, directed the issue of a certificate of title to the Governor, and certified that in any Grown grant the legal estate should vest a/ from the 2nd December, 1870; that sl6 Court at the same, time - further ordered that the presiding Judge should repok that the Court recommended that the block should he inalienable by sale or mortgage 1 or by lease for a longer period than twenty-one years; from 1 the date thereof; that a certificate of' title was issued on' the 20th Fehrua’ry,'lß7l, pursuant to the order, and transmitted to the Governor with a report by the presiding Judge recommending the above restrictions. Affidavits were put in on behalf of the defendants, to the effect, and it was afterward admitted, that no certificate or report ever was transmitted to the Governor, and that no certificate under section 17 of the Native Land Act, 1867, or reports relating thereto, ever are transmitted to the Governor; but that the order and report were transmitted to the Chief Judge at Auckland, who signed and sealed the certificate, and that the practice is for the Native Land Court to hold such certificates, until subdivision, as no Crown grant could issue until then. It was also stated in an affidavit by the Registrar of the Native Land Court at Gisborne that the report as to restrictions on alienation was forwarded to the Chief Judge for his information that the certificate was to issue under section 17 of the Native Land Act, 1867, and that a similar report was forwarded to the Chief Judge in.the case of every other certificate under that, section issued for the Gisborne district, without,, any other notification to him that .the certificate was to issue under that section. Mr Skerrett, for the plaintifia, contended that- the sale 'should be

restrainedonthegrounds—(l) that the land was rendered absolutely inalienable by the provisions of sections 17 and 20 of the Act of 1867 ; (2) that the lands were rendered inalienable until subdivision by virtue of 'the statutes of 1867 and 1873; (3) that--the lauds were owneOTy more than .20/owners, and were consequently inalienable by section 5 of the Native Lands Eraud Prevention Act, 1888 ; (4) that the Trust Commissioner’s certificate on the judgment was insufficient. Mr Bell, for the defendants: The Court must construe section 5 of the Act, of 1888, strictly, as upon an indictment under section 7. There are only ten owners on the certifi- j cate. .Section 5 has the word “lease.” The ten have and always have had power to lease. The Legislature intended to provide power for Natives to deal with lands not Crown-granted, aad also to give power to make Natives pay their debts. The report was not a recommendation ; it was a: clumsy way of notifying that the certificate should issue under section 17 of the Act of 1867. At that time a recommendation of, restrictions would be forwarded to the Governor, but upon subdivision, not before. This was for the issue of the certificate, and was not intended for the Governor, Your Honour had not the facts shown in Mr Brook ing’s affidavit before you in Seymour v Macdonald. The Attorney-General v Tipae, 6 N.Z.L.R. 157, is to some extent in point, Mr Skerrett having replied, his Honour reserved his decision.