The Pamphlet Collection of Sir Robert Stout: Volume 71
XI—Wi Kihitu's Case
XI—Wi Kihitu's Case.
Wi Kihitu was a minor whose estate was vested in We Mahuika as trustee. Wi page 8 Mahuika sold the share and the question is, was he ever paid for it?
The evidence pro and con is voluminous and contradictory and on the whole the Court believes the money never was paid and that literal fact would place the purchase outside the words of the 5th section of the statute. But the reason given by MrGoudie" for postponing the payment was a satisfactory one. We therefore think notwithstanding that non-payment the case is within the relief intended by the Legislature and we shall therefore certify that the sale ought to be validated on condition that the purchase money be now paid with interest at 8 per cent.
This is one of the numerous instances in which the narrow wording of the statute operates to prevent justice from being done, But we hold that the duty which the Legislature has really committed to the Validating Court is to ascertain whether the transaction is fair and straightforward in itself. The draftsman of this Act appears to have been unable to imagine a transaction being fair and straightforward unless the consideration was given at the time of the sale. But there are many transactions in which the consideration cannot be given at the time. And this appears to be one of them, the law requiring that a judge's sanction to the contract made must be obtained before it shall operate as a bargain and sale.
If we were strictly to confine the relief of the statute to cases where the money is paid on the spot we should be shutting out a great number of honest everyday transactions. The only principle on which we can make the section apply to many ordinary transactions is to assume that by words such as those of the 5th section the Legislature did not mean to confine us to those words, but meant merely to indicate a typical instance of the transactions intended to be relieved. This is the third purchase in this single block out of Mr Tiffen's five blocks in which the Court has to certify in favor of validating purchases in spite of the narrow wording of the 5th section. Indeed the whole Act is full of expressions which, taken literally, would compel the Court to violate common sense, and in one glaring instance which will presently appear, the words would compel us even to violate natural justice.
The infant Wi Kihitu being now dead, the question yet remains, to whom this purchase money ought to be now paid. No successor to the infant has been appointed in this block, but we have power to appoint successors when required. Wiremu Mahub the trustee who made the sale, and who [unclear: now] objects to carry it out, is himself the father and sole heir to his deceased child. He b already been appointed as his sole success in other blocks of Puhatikotiko Nos. 3, 4, 5 and 7, and he is also his sole successori eight other blocks as well, and is therefore clearly the person to be appointed success in this No. 1 block. We appoint him s cessor and declare the payment to him of the amount due shall be a sufficient discharged the debt to the deceased infant. The amosg of principal and interest from 15th April, 1882, to 15th April, 1893, is £22 12s, atf on payment of that sum to Wi Mahuika j his solicitor with further interest at 8 cent, added on the whole sum till payment we think the purchase ought to [unclear: be] validated.
Since the above judgment was written Mr Day has brought to the Court a decisis of the Court of Appeal in the case of tfnj v. Stewart, just published. By that & cision it appears that a conveyance by i Maori vendor upon which no Maori state ment was written in accordance with section 85 of the Act of 1873 is declared void and no effect, and Mr Day pressed upon the Court that this very recent case ought t prevent the Court from giving any effect t those of Mr Tiffen's deeds which are open i the same objection.
But this is only adding one more reass to the numerous similar reasons already a isting that make these deeds illegal, and already explained in the above judgment why the Court will recommend Mr Tiffen purchases for validation, not with standing the illegality of his deeds. If the deeds hi been legal, Mr Tiffen would have have hi no need to come before this Court.
This judgment completes the validate work in block No. 1, and the Court weal now be in a position to transmit its certification to the Chief Judge, were it not that ti statute requires the area of land and locality to be stated, and directs us to part tion the block for that purpose. This pr vision is entirely unnecessary as an elema in the decision of Parliament to validil or otherwise. But as regards the intcresl of both purchasers and Natives, it is en hurtful. A moment's consideration wi show that the rational basis of partitk should be the validation by Parliament which is final, not the validation as rec mended by us, which may be final or not, i Parliament may decide If Parliament should disallow a single purchase amount those we recommend, the partition we now page 9 have to make would be entirely inapplicable and a new partition would be necessary. But here again the statute fails. It not only makes no provision for such repartition, but in section 7 it specially provides that our premature "partition shall be as valid and ineffectual as if made in pursuance of an application for partition under the Native Land Act of 1880." Thus no fresh partition could possibly be made except by authority of a statute passed expressly for that purpose
There is another question affecting these partitions matters, viz: The construction to be put on section 7. If the words of that section are to be taken literally they would compel the Court to act contrary to natural justice. The section requires us so soon us we have decided what purchases to recommend and which to refuse, "forthwith to make a partition or amend a partition already made." Thus this statute apparently requires the Court to partition the block in a proceeding with which the Maori non-sellers have nothing to do, and which they have not been summoned to attend, and empowers us even in cases where a Court has already given men rights of property, to take those rights away from them "forthwith" behind their backs. Such a proceeding would so clearly be a violation of natural justice that we have felt compelled to read the word "forthwith "as meaning "forthwith" after due notice to all interested persons. To read the word "forthwith" without this addition would practically enable the European purchaser to select whatever part of the land he chose behind the backs of the owners. The injustice of such a proceeding is aggravated by the fact that being also authorised to vary any former partition, we may take from any Native the piece of [unclear: land] already given to him by a former Court, and without his knowledge hand it over, forhtwith" to the European.