The Pamphlet Collection of Sir Robert Stout: Volume 71
His Honor Judge Barton delivered the following judgment on Monday, May 15, 1893
The Court has now to decide which of Mr Tifen's purchases it will recommend for validation and which it will not recommend. The difficulties arising under this Act, [unclear: partially] explained in our former judgment, have compelled us to adopt a construction bold for any Court, but doubly so for a Court so constituted as the Native Land Court, Our only alternative course would have been to declare the Act unworkable and close our doors If Mr Rees had carried our judgment of 17th April, on the question of jurisdiction, to the Supreme Court, as Mr Day originally proposed to do, the decision of that Court would either have stopped our proceedings or else-cleared our path: for with the sanction of the highest Court we should no longer feel hesitation in compelling the words of the Act to tit purchases violating the statute of 1873 as well as other purchases. But Mr Rees' clients have altered their tactics. Instead of taking the question of our jurisdiction to deal with purchases illegal under the Act of 1873 before the Supreme Court, they force from as our decision upon the delicate points that arise upon Mr Tiffen's deeds and various purchases. The Supreme Court Judges, whose daily business it is to deal with such questions, are able to devote to the consideration of them the requisite time and thought. The Judges of the Native Land Court, to whose daily business this class of enquiry is entirely foreign (and who have this validation work thrust upon them in the [unclear: midst] of their usual work) have neither the leisure nor the facilities for considering abstruse questions and mastering legal an horities, as they must do if they are to give correct decisions under this Act. In this very judgment we shall have to deal with abstruse questions of English real property law—a law ruled by rigid precedent, the very antithesis of the "give and take "principle on which the Native Land Court acts in its ordinary work of apportioning land between Native tribes, or partitioning blocks between Native sellers and non-sellers. We therefore proposed that instead of giving our decision upon these points of real property law, we should state cases for the Supreme Court, but Mr Lysnar declined our proposal, and we have no right to force him to accept it. It must indeed be admitted that if the judges of the Native Land Court were entitled to shift all their difficulties into the Supreme Court, it would virtually turn the Supreme Court into a Validation Court, where as the Government and Legislature having placed these matters (proper only for the highest Court) in the hands of the Native Land Court, and competent or incompetent, the Native Land Court must decide them.
When in our judgment of the 17th of April the Court declared that this peculiar statute required peculiar treatment, we assumed from the history of validation that the intention of the Legislature is that we shall recommend for validation all honest purchases, no matter what statute rendered them illegal. Mr Day has ever sinew the delivery of that judgment been endeavoring to prove to us that such a construction raises insuperable difficulties in our way, and that, if the Court gives Mr Tiffin a certificate, it must do so without the sanction of any clause in this Act, and even in actual violation of some of its clauses; and it may be asked us how under such circumstances we can possibly hold that the Act applies. But the Court must point out that Mr Day's argument is only the same in principle as Mr Rees' argument, founded on the general purview of the statute. If, as Mr Rees contended, the general words of the statute fail to include purchases illegal under the Act of 1873, then the particular words of the several clauses will also necessarily appear to exclude them. If Mr Bees' arguments be right, then we have no jurisdiction over such cases. If, on the other hand, we possess the jurisdiction we have declared ourselves to possess, then it follows that we must find the means of applying the statute to such cases, and Mr Day's arguments to show the impossibility of so applying it page 2 must be erroneous. Our construction may be a bold one, but everyone must see that if Mr Tiffen's cases are properly before the Court, our business is to find the means of relieving them be the language of the statute applicable to other classes of cases what it may. Mr Day complains that by taking this course we pass out of our province as interpreters, and become legislators. I admit that if this statute were an ordinary statute, enabling us to confer rights or give a status, we should not dare to step beyond its literal words. But when we now step beyond the words we still keep within the directions given by the Legislature. Those directions arc that we shall "enquire and report" to the Legislature itself what illegal transactions have been honest and straightforward in themselves, and whether they have been carried out in an honest and straightforward manner; therefore, if we are right in holding these "transactions" under the Act of 1873 to be within the statute, it is our duty to bend its provisions to meet the circumstances of such transactions. With these observations on Mr Day's argument we will now proceed to the facts of the case.
Mr Tiflfen has abandoned one of his purchases, and claims validation for the remaining 34. Mr Day's objection to these 34 are of two classes. One class includes the whole 34, the other class affects only 9 and does not affect the remaining 25.
Mr Day's first class is again divisible into two classes of objection. His first is—That as the Supreme Court decision of Poaka v. Ward has declared that purchases like these of Mr Tiffen of undivided shares held under the Act of 1873 are unlawful, this Court must hold them to be still unlawful, there being no statutory provision authorising their validation. This argument is only another form of Mr Rees' former argument, and would be just if it were this Court that had to validate the purchases, but this Court validates nothing; it is the Legislature, and not we, that will have to validate them, and in that faet lies the distinction. We simply recommend them as honest transactions which are therefore suitable for validation if the Legislature chooses to override Poaka v. Ward. It is urged that the Court should not ride roughshod over every sort of illegality and over all laws forbidding improper transactions, and I entirely concur in that. This judgment later on will show that we claim no such right.
The second division of Mr Day's first class of objections is more formidable. He has shown us that since Mr Tiffens deeds of purchase were signed by the Maoris [unclear: to] have been altered in many material [unclear: pe] There is no doubt about this fact. [unclear: It] [unclear: i] mitted by Mr Tiffen's counsel, but [unclear: even] not admitted it is shown by the [unclear: attemp] copies lodged in Mr Justice Edwards' [unclear: C] that the condition of the deeds when [unclear: the] copies were so lodged differed very [unclear: materal] from their present condition. Mr Day tends that it is the settled policy of [unclear: Eq] Courts of Justice that if a suitor is [unclear: show] have altered in any material part a [unclear: deed] which he relies he cannot enforce, it [unclear: again] the opposing party, it being no longer contract of that party, and Mr Day that this law has been based on an [unclear: ob] ground of public policy to compel [unclear: person] possession of documents to refrain from [unclear: the] pering with them.
Mr Day insists that these deeds have [unclear: been] so seriously altered that no Court [unclear: could] otherwise than treat them as [unclear: void], showed that as they originally [unclear: stood] had no Maori translation certified [unclear: by] signature of the licensed [unclear: interpreter] dorsed upon them, others had no [unclear: translate] at all, none had any description of [unclear: the] sold, some had no consideration in [unclear: the] of the deed, some had no "[unclear: duplicate]," in scarcely any did the duplicates [unclear: agree] their text, as required by law, on [unclear: some] Frauds Commissioner's certificate [unclear: was] before the date when certain of [unclear: the] tures now appearing upon it were [unclear: affc] &c. On account of these things, [unclear: and] cause none of these deeds had been [unclear: sub] to a Judge of the Native Land Court [unclear: for] assent under sections 59 and 60 of [unclear: the] of 1873, Mr Day insisted that the [unclear: deeds] now be treated as absolutely void, [unclear: and] the Court ought to refuse to [unclear: recommend] Parliament as proper for [unclear: validation] transactions on which such [unclear: deeds] founded.
We do not take this view. We [unclear: think] what this statute of 1892 requires us [unclear: to] vestigate is not the mere deeds but [unclear: the] "transactions" of sale and purchase [unclear: the] took place before those deeds. It we [unclear: for] that those transactions were without [unclear: from] wrong of any kind, we think we [unclear: ough] certify that fact to Parliament, for [unclear: however] improper it may have been to tamper [unclear: with] these deeds, it may by Parliament be [unclear: and] sidered that looking at all the [unclear: circumstance] of this case, the transactions on which [unclear: the] deeds were founded ought nevertheless [unclear: is] validated.
Mr Day called our attention to sec, [unclear: 3] applying to these improprieties in the [unclear: deed] But that section refers to "[unclear: formalities] page 3 complied with at the time of signing the deeds" and to "irregularities in the procedure prescribed in respect of the execution of the deeds," and it only authorizes the Court to recommend validation, notwith-standing such improprieties, "if they occurred through inadvertence or misapprebeension and without any intention to evade the law." We think however that section 9 was not intended to apply to tampering with deeds after they were executed. It refers to formalities and irregularities not after but at the time of the execution of the deeds. Mr Day's complaint is not that these deeds were left informal and incomplete with a fraudulent intention, but that they were many years afterwards, tampered with in order to make them more formal and more complete, and section 9 does not touch much a matter at all. It is the common law and not this statute that deals with matters of that kind.
As we have already said, these deeds are [unclear: ex crttortsis] illegal and for that very reason the transactions they represent are brought before this Court, for ultimate validation by parliament. Whether the deeds be illegal for few reasons or for a multitude of reasons should make no difference in our estimate of the honesty of the original transaction of sale and purchase before the deeds except in so tar as the conduct of the purchaser's agents in tampering with the deeds may throw back a light on the honesty of the, original transaction. If this Court were! giving Mr Tiffen a title, we should of course have to refuse to give effect to his illegal! deeds, but we are not required to give him any title whatever. That will be for Parliament.
We come now to the nine purchase transactions, objected to on the ground that they were unfair and invalid in themselves independent of the illegality of the deeds. In two of these transactions the Native vendors appeared in person to object. In the remaining seven Mr Day as counsel objected.