COURT OF APPEAL.

Dominion, Volume 6, Issue 1563, 5 October 1912, Page 14

COURT OF APPEAL.

PROHIBITION WRIT SOUGHT. \ MAORI LAND CASK Ail application for a writ of proliibition, to prevent a District Maori Laud • "Board from confirming a transfer of certain sec-' tions of Native land, was heard in the. Court of Appeal yesterday, before the Chief Justice (Sir Robert Stout), Mr. Justioe Williams, Mr. Justice Edwards, Sir. Justice Cooper, and Mr. Justice Chapman. Tho plaintiff in the action'was the Solicitor-General, while tho defendants wore tho Tokerau District Maori Land Board; Charles John Schnauer, solicitor, of Auckland (executor of -the will of the late John Olson, land agent, Auckland); and Hori Paerimu, aboriginal Native. The Solicitor-General (Mr. J. W. .Sal. mond) appeared in person. Sir John Findlay, K.C., with lii'm Mr. It. M. Watson, appeared for the defendant, Schnauer. Ihe rokomam District Maori Land Board and Hori I'aerhnu were not represented. Originally tlie application had been mado in tho Supreme Court, but, after having been partially argued before ,Mr. Justice Edwards, it was adjourned and subsequently removed into, the Court of Appeal. The hearing came on vesterday morning. In. the statement of claim it was set out that on April 19, 1912, an application was lodged with tho Tokerau District Maori Land Board by John 01sen for confirmation of. a. transfer from Hori Paerimu (dated March 23; 1912) of certain sections of the Orakei Native Reserve, containing 46 acres 24 perches. The reserve was until the year 1898 vested by Crown grant, (dated July 8, 1873) in certain persons as trustees for-the Native beneficial owners. On January: 10, 1898, the Native Land. Court-made several orders of partition of the reserve, .'purporting to partition the reserve among tho equitable owners thereof. Bv' one of those partition orders the land included in the transfer mentioned was allotted in severalty to Hori Paerimu, but the order in favour of him has never been registered under the Land Transfer Act, ami the partition orders are. null, and void (the Crown alleged), so far-as they purport to affect the legal fee simple 'of the reserve. The estate and interest of Hori Paerimu in the land included in the transfer is an equitable estate and interest only, and is accordingly inalienable, by reason of the provisions of Section 210 of tho Native -Land Act, 1909. The transfer is therefore null and void, and the Tokerau District Maori Land Board has no jurisdiction to confirm it. .For those reasons the Solicitor.-General asked: That the Court should issue a writ of prohibition directed to tho board and the other defendants, prohibiting all further proceedings in' the application for confirmation. ■ That the defendants be ordered to pay costs of the proceedings. In tho defence filed by Charity John Schnauer, the material facts alleged in the statement of claim wero not disputed, but it was denied that the partition orders partitioning the land were null and void, or that the land mentioned in the transfer was inalienable, or that tho Tokerau District Maori Land Board had no jurisdiction to confirm the transfer. Further, it was contended that, by the order df the Native Laud Court of January 10, 1893, Hori Paerimu became the owner of the land, and entitled to a land transfer certificate of title, and to the cancellation.of the Crown grant as to the land comprised in the order.' Moreover, several'of tho orders, on partition referred to have been registered and the Crown grant cancelled as to the several parcels-of land included in those orders, and it was the duty of the Registrar of tho Native Land Court to have forwarded the partition order in favour of Hori Paerimu to tho office of the District Land Registrar,. so that it might have been registered and certificate of title issued. Cancellation of the Crown grant would then have followed. Even if the partition orders wero invalid prior to the registration of those referred to, it was contended that such registration and cancellation enures to the benefit of those' of the orders that have not been registered (including that of Hori Paerimu), and therefore the validity of those orders cannot now be questioned. The -Solicitor-General, in opening the case, said that two questions of law were raised by the application, viz.:— i Will a prohibition issue from this Court to prevent confirmation of an invalid instrument of alienation of Native Land? ■ . ; Did tho partition order in question vest the legal estate in the land in.Hori Paerimu ? ' ■_■■'. Argument was concluded'during the afternoon, decision being reserved. At the request of the Court, Sir John Findlay promised to procure certain documents from Auckland, and put. them' in. If these give rise to further argument the case will be mentioned again next week. ■ ■