SUPREME COURT.—IN BANCO.

Daily Telegraph (Napier), Issue 4107, 19 September 1884, Page 3

SUPREME COURT.—IN BANCO.

Wednesday, September 10. hob3on v. siieehan and otiieks. Certain land was held by a number of natives under a certificate of title under the Native Lands Act, 18S0. No restrictions on the alienability of the land Avere asserted iv tho certificate or endorsed thereon. The natives made a lease for thirty years to the appellant. Part of the consideration for this lease Avas a premium or foregift at the date of the lease; the prohibition of sec. 7 of the Native Land LaAVS Amendment Act, 1883, had ceased to affect the land. The lessee applied to the Trust Commissioner for his certificate under the Native Lands Frauds Prevention Act, ISSI. The Commissioner refused his certificate, stating as his reasons sec. 43 of the Native Lands Act 1873, prohibited tho lease, and that sec. 36 of the Native Land Courts Act, 1880, gave power to the Native Lands Court to impose other restrictions, and that the restrictions imposed by the Act of 1870 still existed. That the trust Avas created by the 4Stb section of tho Native Land Act, 1873, and that tbc lease was a breach of trust. The lessee appealed, stating aground of appeal—l. That the question of alienability for a longer period than 21 years was not for the Commissioner. 2. That section 48 of the v Native Lands Act, 1873, was repealed by section 70 of the Native Lands Court ISSO. 3. That tho proviso to section 70 of the Native Lands Court Act, 1890, does not annex to certificate the condition annexed to memorials by section 48 of the Act of 1873. 4. That tbc native owners of land under a certificate Avhich has no restrictions endorsed or attached have an absolute right to deal with the land. 5 and 0. That the Native Land Court has an absolute discretion as to the restrictions imposed, and had imposed no restrictions. Tbc questions for the Court Avere in effect whether tbc Trust Commissioner ought to have refused his certificate. Mr Izard, for the appellant: Tbc question of the power of the natives to make the lease ■was not one for the Commissioner ; ho has certain specified inquiries to make, and no others. Russell v. Arehi (4.N.Z., Jur., N.S., 18), Russell v. CainpboH (ib., 19), Bard v. Coleman (1, N.Z.L.R., 5.C.,171). The Commissioner ought not to decide the question whether the lease is bad in too or good for twenty-one years. Tho combined effect of sections 25, 30, and 70 of the Native Land Court Act, 1888, Avorks a repeal of section 4S of the Act of 1873, othcrAvise there may be a double set of restrictions in force at the same time. The two Acts are inconsistent Avith each other, and the earlier one is repealed so far as it is repugnant to the hitter. A. Mr Chapman appeared for the respondent, but argued" also in support of the lease. A lease for thirty years made under a power toleasefortAventy-oncyears isgood for twenty-one years at equity, though void at law ; but even if the lease is void, it might by agreernontor estoppel create a tenancy so long as possession is held under it. Theannoxatiou referred to in section 48 of the Act of 1573 is clearly a physical annexation, the condition is to be Avritten on the memorial; the Act of 18S0 provides that the condition shall be written on the certificate, and the conditions imposed by the Court arcsubstituted for those imposed by statute. The native owners are not trustees, as it is clear all those interested in the laud have to be named. They would therefore have to be trustees for themselves. An alienation by all the beucficiaircs cannot be a breach of trust. His Honor Mr Justice Richmaiid : It is convenient that I state my opinion so far as the case enables mo to form an opinion. The first point to be attended to is the nature of the estate taken by native owners, holding- under memorials of OAvncrship issued under the Native Lands Act, 1873, by under certificates of title issued under the Native Lands Court Act, 1880. That title is essentially a native title, and in the absence of express provision, there is no alienable quality in such a title. It is not capable of transfer to Europeans. In order to give such a title an alienable quality an express enactment was requisite. Under the Native Lands Act, 18.3, estates under memorials of OAvncrship havo a peculiar alienable quality subject to the restrictions imposed by the 48th section. Under that the natives can execute valid transfers to purchasers, or leases to lessees. Then comes the Native Lauds Court Act, 1880, the whole purpose of Avhich is to provide for the issue of certificates to the native owners in place of the memorials provided for by the previous Act. As has been pointed out at the bar, the Act contains not one syllabic to explain the effect of the certificate till Aye come to the proviso to sec. 70, the repealing section. The alienable quality therefore of sec. 70 depends on sec. 70, and under that wo must still refer to the Act of 1873, if avc ■wish to ascertain the effect of the certificate. . Sec. 36 enables the Court to put restrictions T on the alienability of the estate, these restrictions are cumulative, and are not in substitution of those provided by the Act of 1873. There is nothing enabling in the Act of 1880 except section 70. It follows from ' this section 48 of the Native Lands Act, 1573, is unrepealed. The expression used in that section is far from being avcll chosen, but I think it sufficiently apparent that, the annexation of the conditions imposed is not intended to be a physical annexation to the memorial, but that the meaning of the section is that the interest of the native owners is to be subjected to the condition. This lease, therefore, is a A-oid lease, and is a lease upon a lino premium or foregift. But, though I think the Commissioner was right in supposing that the portion of the Act of 1873, imposing restrictions is unrepealed, I am of opinion that if he refused his certi'icato on that, account alone he Avent beyond bis duty. It, does not appear to mc that under the" Act of 1873 the native OAvners are trustees, but in the face of the case itself it appears that Mr Shcchan is a trustee. There is nothing to show Avhat his trusts are nor how he became a trustee, but it is consistent with the case that this lease is a breach of his trust. It is undesirable I should express an opinion on that till an inquiry is made into his position, as the case may be shown to have a different aspect. It is true Mr Preece does not ground his opinion on Mr Sheebau's trusteeship ; but if I find he gave a right decision, 1 must not overrule it, because his reason may not

have been right. The case must go further back to be further spoken to. In reply to Mr Izard, His Honor intimated that affidavits as to Mr Shcehan's trust might be read.