POSSESSION DISPUTE

Taranaki Daily News, 17 April 1935, Page 7

POSSESSION DISPUTE

HARBOUR BOARD’S CLAIM LOWER COURT LACKS THE POWER. MATTER FOR SUPREME COURT. MAORI COTTAGES AT NGAMOTU. ■ The dispute over the possession of land between the Hongi Hongi and Tutu streams on Ngamotu beach. New Plymouth, reached the end of its first stage yesterday, the magistrate, Mr. W. H. Woodward giving his decision that the claim for possession by the New Plymouth Harbour Board was beyond his jurisdiction as a question of title was involved. Accordingly the board will have to take the matter to the Supreme Court.

Application for possession of the land, now occupied by Maoris, was made to Mr. Woodward by the Harbour Board on Tuesday last, on the gr'ounds that the land was vested in the board by a special Act in 1918. The defence raised on behalf of the seven defendants, John and Cissy Harris, Martene Raharuhe, James Joseph, Thomas Harris, Tahi Harwood, Andrew Coffey and Max Skipper, was that the Maoris had been in undisturbed possession of the land for 20 years before 1918, thus acquiring a prescriptive right. The magistrate pointed out that the whole matter rested on the question of title and was therefore out of his jurisdiction. The board’s title- to the site of the tenements rested upon section 25 of the New Plymouth Harbour Board Empowering Act, 1918, which vested the land, with other land, in the board and directed the issue of a certificate of title for it in the board’s name, said Mr. Woodward. “TITLE BY PRESCRIPTION.” Mr. Clement White, counsel for the defendants, said their case was that they or some of them or some other Natives were in undisturbed occupation of the land for over 20 years before 1918 and had by that date acquired a title to it by prescription. Having called a certain amount of evidence in support of the allegation of 20 years of undisturbed occupation, Mr. White asked the court to decide that a question of title was raised and that the Magistrate’s Court had no' jurisdiction to decide. Mr. R. H. Quilliam, counsel for the board, relied on the statutory vesting of the land in the hoard and contended that the defendants could have no genuine claim capable of existing in point of law.

The effect of the Act of (1918 might be to vest the land in the board free from all rights which might have been acquired over it 1 by other persons, though the Act did not specifically say so. To decide whether that was its effect or not was to decide a question of title, and that was not the province of the Magistrate’s Court. The fact that there might be little doubt about the matter did not give the magistrate power to resolve that doubt.

“The question of title ,is, not merely an incidental one but goes to the root of the matter,” said Mr. Woodard. “Each party rests the case on a claim to title, and on that alone. I find I have no jurisdiction to decide the matter.”

Mr. Quilliam asked that the magistrate deny power of jurisdiction in one of the claims, enabling the board to apply to the Supreme- Court for a writ of mandamus compelling the lower court to. decide the case. In another he asked that the be non-suited so that an action for possession could be brought in the Supreme Court if the other application failed. •Mr. White objected, submitting that as the court had found the title to be involved it must dismiss the cases.

In view of' the threats not to give up the property, said Mr. Quilliam, a writ of mandamus was required. He mentioned the question of expense and pointed out that one case could be made a test for all seven. Mr. Woodward dismissed the claim against Max Skipper, non-suited the board on the claim against Martene Raharuhe and adjourned the other five. The question of costs was also adjourned when Mr. White applied for costs for defendants.