105

G.-2

order are open to question, except the report of the Judge? To decide otherwise is to throw the matter upon the conflicting evidence, of which the present case is a striking example. If the Native Land Court at a later stage of proceedings in a particular case determines to decide a question which arises as to what took place while the Native Land Court Judge was on the bench, not by his report of what took place, but by a decision between two different accounts of contending parties, where is the continuity of the Court or of its proceedings ? Take, for instance, the question which arises so constantly in every Court—the Native Land Court, the Supreme Court, the Court of Appeal—whether or not counsel for one of the parties did or did not make a certain objection to the reception of evidence, the objection not being expressly noted in the minutes. Counsel A says at a later stage, say in the Appellate Court, "Oh, but I did make that objection to the evidence." Counsel B says, " You did not make that objection." The minutes are referred to, and it is found that the objection is not noted. Is the Court, then, to decide which memory, of Aor B, they will rely on, or must they not, as every other Court does, ask the Judge who presided, and whose duty it was to observe the objections, whether or not the objection was made in the terms which counsel A states them to have been made, and, if not, in what other terms ? If the Judge has no recollection, then, obviously, the Court is driven to decide betw 7 een the conflicting accounts of A and B; but if the Judge has a recollection, then, naturally, the Court would accept his recollection; and, fortunately, it is laid down as an unalterable rule by the authorities which I have mentioned that if the Judge has such a recollection and reports it to the Court the Court will not accept evidence to contravene it. 6. I assume for the moment that this Court would, without any such rule to guide it, accept the report of Judge Wilson as— (a) true, and (b) that which upon all principle should be accepted. But if that be not so, then I submit that the Court, apart from questions of comity, is bound by the rule of law to accept it; and I should ask the Court, in its case for the opinion of the Supreme Court, to ask, as a matter of law, whether, having the evidence of Judge Wilson clear and distinct as to what took place on the 2nd and 3rd December, it ought not to act upon that; and whether it can properly allow any evidence to be heard to contravene it. 7. It can scarcely be denied by any one that if the recollection of Judge Wilson, and his report in his evidence now before the Court, are to guide the Court, then that the case made to establish a trust wholly fails, because, having allotted definitively Block 9 to be held on trust for the descendants of Te Whatanui on the Ist December, what he did on the 2nd and 3rd with regard to Block 14 cannot have been done with the object or the effect of constituting a trust in favour of the descendants of Te Whatanui. Neither the registered owners could then have had any such intention, nor could Judge Wilson ; and it is obvious that there can therefore be no resulting trust; and, as no trust whatever was intended, as Judge Wilson says, or declared, as is manifest, the land must belong to Kemp absolutely, and must have been intended to belong to Kemp absolutely. 8. The counter-claimants rely upon the word " confirm " in the minute of the 3rd December, but they cannot make that word speak for itself. They are obliged to resort to extrinsic evidence to show what it was that was confirmed. Once get to extrinsic evidence, and again the principle comes in and must be applied, that if you have the extrinsic evidence of the Judge, that is conclusive, and you neither can nor ought to go beyond it. It is true that if the order of the 3rd December said in so many words, " We confirm a trust which we have previously declared," then the counter-claimants could rely upon those terms as the expression of the intention of the Court, not to be explained away by any extrinsic evidence. But they must resort themselves to extrinsic evidence, and to the recollection of various persons, e.g., Mr. McDonald, as to what took place for the purpose of connecting the word "confirm" with a previous order intended to create a trust. But, as I have said, the admission of extrinsic evidence, which is admittedly necessary to explain the meaning of the word, and the object of confirmation, immediately admits the best extrinsic evidence —viz., the explanation of the Judge who made the order; and that Judge reports to the Court, and is perfectly clear that the word used was " whakatuturu" —that the word was not used with reference to any trust, but was used with reference to the making solid in favour of Kemp the title to Block 14 which Kemp had mentioned to the Court on the 2nd December. 9. The fallacy of the argument for the counter-claimants appears to be that they select a word which is ambiguous, and contend that the Court must be guided by their extrinsic evidence as to the meaning of that ambiguity, in contravention of the evidence not only of other persons present in Court, but also in contravention of the opinion, the memory, and the report of the very man who made the order, and of the only man who had any duty in framing it, the other persons having an interest but no duty. Further, the Judge is the only man giving evidence here who is disinterested, and who has a duty in giving his evidence beyond the ordinary duty of a witness to tell the truth as far as is in his power. To ignore his extrinsic evidence, and not to accept it, is not only to throw a slur upon him which must be quite undeserved, but to throw open to endless litigation and hopeless confusion the records and the minutes of the Court. 10. The contention of the counter-claimants must be that wherever in any minute or order you can find an ambiguity the Court is to be guided in the interpretation, not by the clear memory of the man who made the order, who directed the proceedings, and who had a judicial and ministerial duty, but by the memory of irresponsible persons who have an interest in the matter; and they must go further, and contend that where there is a conflict in the testimony of such irresponsible and interested persons the Court is not to attach weight to the evidence and the report of a Judge, but is itself to do its best to determine which of the irresponsible and interested persons is more accurate, without regard to or attaching any weight to the opinion and memory of the one responsible and disinterested person.

14— G. 2.