COURT OF APPEAL.

Dominion, Volume 6, Issue 1726, 18 April 1913, Page 3

COURT OF APPEAL.

NO WRIT OF PROHIBITION MAORI LAND CASE. DECISION AGAINST CROWN

The first judgment during the present Court of Appeal sittings was delivered yesterday. It was in connection with an application tor a writ of prohibition, to prevent a District Maori Laud Board from confirming a transfer of certain sections of Native land, and had been heard last sessions before the Chief Justice (Sir Robert Stout), Mr. Justice Williams, Mr. Justice Edwards, Mr. Justice Cooper, and Mr.' Justico Chapman. The plaintiff in the action was the Solicitor-General, whilo the defendants were the Tokerau District Maori Land Board; Charles John Schuauer, solicitor, of Auckland (executor of tho will of the late John 01seu, laud agent, Auckland); and Hon I'aerimu, aboriginal Native. At the hearing tno Solicitor-General (Mr. J. \V. Salmond) appeared in person. Sir John Findlay, K.C., with him Mr. If. M. Watson, appeared, lor the defendant, Schnauer. The Tokoinaru District Maori Land Board and Hori I'aerimu were not represented. Originally the application had been made in tne Supreme Court, but, after having been partially argued before Mr. Justice Edwards, it was adjourned, and subsequently removed into tne Court of Apped. In tho 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 Olscn for confirmation of a transfer from Hori I'aerimu (dated March 23, 1912) of certain sections of tho Orakei Native Reserve, containing 46 acres 24 perches. The reservo was uutil 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, tho Native Land Court made several orders of partition of the reserve, purporting to partition the reserve among tho equitable owners thereof. By one of these partition orders tho land included in the transfer mentioned was allotted in severalty to Hori Pacrimu, but the order iu ! favour of him was never registered under ! the Land Transfer Act, and 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 estato and interest .of Hori Paerimu iu the land included in tho transfer was an equitiblo estate and interest only, and 'was accordingly inalienable, by reason of the provisions of Section 210 of tho Native Land Act, 1909. The transfer was therefore null and void, and the Tokerau District Maori Land Board had no jurisdiction to .confirm it, so tho Crown said. For these reasons the Solicitor-General asked:

That-tho Court should issue a writ of prohibition directed to the board and the other defendants, prohibiting all further proceedings in tho application for confirmation. That the defendants bo ordered to paycosts of tho proceedings.

In the defence filed by Charles John Schnauer, the material facts alleged in the statement of claim were not disputed, but it was denied that tho partition orders partitioning the land wero null aud void,' or that the land mentioned in the transfer was inalienable, or that the Tokerau District Maori Land Board had no jurisdiction to confirm the transfer. Further, it was contended that, by tho order of the Native Land Court of January 10, 1898, Hori Paerimu became the owner of the land, and entitled to a laud transfer certiiicato of title, and to the cancellation of the Crown grant as to the jand comprised in.the, order. Moreover, several of ■tho'order's on partition"have been registered, and the Crowu grant cancelled (js to th.o several parcels of land included m those orders, and it was tho duty of the Registrar ot' the Native Land Court to have forwarded the partition order iu favour of Hori Paerimu to the 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 were invalid prior to the registration of those referred to, it was contended that such registration aiid 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 :aow bo questioned. Separate reserved judgments were delivered yesterday by all the Judges. Mr. Justice William.-, Mr. Justice Edwards, Sir. Justice Cooper, and Mr. Justice. Chapman all ruled in favour of the defendants. The "Chief Justico dissented, holding that there was no power to. order the partition of the laud. Costs were allowed the defendant Sobnauer. only/ against tho Solicitor-Gen-I cral—in tho Court below up to and including the preparation for trial as on a claim for over ,£2OO, and in tho Court of Appeal on the middle scale as from a distance.

APPEAL IN THE SUGAR CASE. SECOND DAT. MR. SKEBEETT CONTINUES. Throughout yesterday the Court of Appeal continued tho hearing of tho appeal in tho sugar case—the first prosecution under tho Commercial Trusts Act, 1910. A brief summary of tho case was published in yesterday's issue. The present appeal is from tho decision of the Chief Justice (Sir Eobert Stout), who in December last imposed fines' totalling .£SOOO upon the Colonial Sugar Eefiniug Co., the Merchants' Association, and other defendants. Mr. Justice Williams is presiding at tho appeal, and sitting with him are Mr. Justice Denniston, Mr. Justice Coooer, and Mr. Justice Chapman. The appellants are tho Merchants' Association of New Zealand, Incorporated, a trac'.o protection society. Wellington; the Colonial Sugar Eefining Company, Ltd., incorporated in New South Wales, sugar refiners and sugar merchants, Auckland; Levin and Co., Ltd.,-W. M. Bannatyne and Co., Ltd., and Joseph Nathan and Co., Ltd., all merchants of Wellington. The respondent is his Majesty tho King. Mr. C. P. Skcrrett, K.C., with Mr. T ; Young, is appearing for the Morchants Association, and for W. M. Bannatyuo and Co., Ltd., and Joseph Nathan and Co., Ltd. Mr. J. H. Hosking, K.C., of Dunedin, with Mr. H. P. Richmond, of •Vuckland. represents tho Colonial Sugar Eefining Company, Ltd., while- Mr. M. Myers is in tho caso as counsel for Lovm and Co., Ltd. Tho Attorney-General (the Hon. A. L. Herdman) is appearing for tho Crown, and he has with Jjim Sir John Fiudlny.'K.C., and Mr. H.« 51. Ostler, of tho Crbwn Law Office. Er. Skerrett, who was first to address tho Court, continued his argument all day yesterday, and had not concluded at 4.30 p.m., when the Court adjourned until 10 .SO a.m. on Monday next.