a Judge of the Validation Court all the powers of a Judge of the Supreme Court. Here the agreement between the Native owners and Messrs. Carroll and Wi Pere was in the end of 1892 or beginning of 1893-prior, therefore, to the Act of 1893.

[STOUT, C.J.-You say that not only that agreement, but also the subsequent agreement that the lands should be administered by the Court, can be validated?]

Section 19 clearly contemplates agreements in settlement of matters being entered into before the Court and carried out. [H. D. Bell, for respondents.-Section 10 says not only that the Court may validate, but also that it may decree the performante of a contract.]

Section 16 also confirms every final order or decree laid before Parliament.

[STOUT, C.J.-But you say this is an interim decree?]

It is final as regards the legal title. This is a comprehensive remedial Act, and should be read liberally.

[The question whether the proper remedy was mandamus or appeal was not raised by the respondents, and was therefore not argued.]

H. D. Bell and Findlay, for the respondents:

The Validation Court has jurisdiction in certain cases to make a validation decree limited in time and subject to a condition performance of which it can control. If it has power to determine conditions it has power to determine under what circumstances effect shall be given to a bargain. It is not unreasonable to assume that it has power to see that conditions which it considers fair are carried into effect. Subsections 4 and 5 of section 7 give powers independent of mere validation. Section 9 makes the Judge of the Validation Court the sole judge as to what orders are to be made under those powers. Section 18 provides for rules to be made: see especially subsection 8. The rules made (New Zealand Gazette, 1894, Vol. i., pp. 334-38) contemplate that the Judge is the person to enforce the decrees or orders, and also to determine when they are finally to have effect. The question whether this caveat should or should not be removed is within the jurisdiction. One of the encumbrances which might be placed on the land under this decree might be one in relief of owners of other land. That would affect the respondent. If the jurisdiction of the Validation Court is continued at all it should certainly be continued as to

C.A. 1901.

In re

645

TAHORA.

C.A.

1901.

In re

TAHORA.

this caveat. Section 9, giving all the powers of a Judge of the Supreme Court, gives power to deal with caveats. Under the last clause of section 16 interim orders may have to be made giving effect to a voluntary arrangement before final decree, to carry out which the Court may often have to order instruments to be registered and caveats to be removed.

W. L. Rees, in reply:

When a new remedy is given, only the means to enforce it which are given by the Act can be used: West v. Downman(1); see also Giovanni Dapueto v. James Wyllie & Co.(2). Cur, adv. vult.

STOUT, C.J.:

The question raised in this appeal from the Validation Court constituted under The Native Land (Validation of Titles) Act, 1893," is whether the Validation Court has jurisdiction to order the removal of a caveat lodged in the Land Transfer Registry at Gisborne forbidding dealings with a block of land known as Tahora 2c 3, Section 2.

The block of land has been before the Validation Court, and a decree was made by the Court vesting the title in the Hon. James Carroll, Wi Pere, and Peka Kerekere as joint tenants and trustees for persons to be named in a further order of the Court. The decree also appoints the Hon. James Carroll, Wiremu Pere, and Henry Cheetham Jackson Receivers, and it reserves various questions for further consideration. This decree was laid before both Houses of the General Assembly, and no resolution contrary to the decree was passed by either House of Assembly. Subsequent to this "confirmation" (so called in section 16 of the Act) the title was registered.

A caveat has been lodged by the Bank of New Zealand stating various reasons why the bank should have a charge over this block of land. A summons has been taken out by the persons in whom the title is vested to set this caveat aside. The Validation Court decided that it had no jurisdiction to entertain the question of setting aside caveats registered under the Land Transfer Act. The learned Judge gave two reasons for this decision-first, that, the Court having made a decree determining in whom the legal title was, the jurisdiction of the Court was at an end; and, second, that in any event no jurisdiction was conferred on the Court to deal with the regis(2) L.R. 5 P.C. 482, 492.

(1) 14 Ch.D. 111, 120.

tration of caveats under the Land Transfer Act. Both these reasons were controverted by counsel for both parties.

It that in the case of the Tahora Block and in the appears case of other blocks the Court has not contented itself with validating deeds, contracts, or engagements relating to, nor with determining disputes, rights, titles, and interests in, blocks of Native land in the district where the Court has jurisdiction. It has, after determining in whom the land shall be vested, proceeded to allow the administration of blocks of land by Receivers appointed by it, and has made orders retaining the control of, and has in fact controlled, such administration. There is no express power granted by the Act to allow the Court to administer, or supervise the administration of, estates, nor to deal with caveats lodged under the Land Transfer Act. It is argued that the provisions of the Act impliedly give such powers. The sections relied on were sections 3, 6, 7, 9, 19, and 20. Section 3 says that the Court shall be entitled, upon the application of any Native or European claimant, to inquire into, settle, and determine finally and conclusively (subject to the right of appeal hereinafter provided) all disputes, rights, titles, and interests whatsoever concerning the "said lands or any of them," &c. None of the other sections give any wider power. Section 7 states, in five subsections, somewhat in detail the jurisdiction the Court can exercise. They all deal with determining disputes. The Court may partition lands, or do anything that may be necessary to deternine in whom the lands shall be vested; but there is no provision, once the ownership is determined, for the Court exercising any controlling jurisdiction over the management of the lands. The other sections of the Act show how the Court can exercise the jurisdiction granted to it by sections 3 and 7.

66

66

66

66

The Court has a certain exclusive jurisdiction. Section 20 declares that "No action or proceeding shall be brought in "any Court other than the Validation Court for the purpose "of questioning the validity of any alienation of land which might form the subject of inquiry before the Validation Court until the expiration of six months after the opening of the Validation Court"; and it proceeds to say that if any such action or proceeding is brought within the six months a plea in bar to the jurisdiction of the Court proceeding with it may be pleaded, None of these circumstances have arisen in this case. Section 20 further provides that if, after six months, any action or suit is brought, and application is then

C.A. 1901.

In re

TAHORA.

C.A.

1901.

In re

TAHORA.

made to the Validation Court, a plea of lis pendens shall bar all further proceedings in the other Court. The issuing of a summons to remove a caveat is not, however, an action or suit. Section 20 cannot help, therefore, in the interpretation of the other provisions of the Act relating to jurisdiction to deal with caveats. Section 19 gives power to the Court to give effect to any arrangement voluntarily come to by the Natives, either amongst themselves or with the Europeans before the Court; but this voluntary arrangement is an arrangement to settle title it cannot be construed as a voluntary arrangement to clothe the Court with a jurisdiction to administer an estate.

I have grave doubts if the Validation Court has any power to continue the administration of the land whose titles the Court may have determined. It is not, however, necessary in this case to express a decision on the point. If the Legislature considers the Court should have power, it may consider it to be advisable to make the statute clear.

I can find no express power in the statute for the Validation Court to deal with caveats or even with the registration of titles, except through the Governor. The dealing with caveats cannot be said to be ancillary to the general jurisdiction to either validate transactions or to inquire into, settle, and determine disputes, rights, titles, or interests. If the decree is a final decree, it may be that the Court's jurisdiction has ended; but if the decree made is only an interlocutory decree, still I see no authority for the Court to deal with caveats lodged in the Land Transfer Registry.

in my opinion, therefore, the appeal should be dismissed.

DENNISTON, J.:

I have arrived at the same conclusion as that just stated by His Honour the Chief Justice.

The title and preamble to the Validation Act of 1893 shows its object to be to provide a Court for the inquiry into purchases and leases of Native lands. The Court created by it can be set in motion only at the request of some Native or European claimant, and its object is defined to be to inquire into, settle, and determine finally and conclusively all disputes, rights, titles, and interests whatsoever concerning the lands brought thus within its jurisdiction. Whatever other powers it may have under the Act are only in aid of the original object. It has (section 9) all such jurisdiction, powers, and authorities as are vested in a Judge of the Supreme Court,

and also those vested in a Judge of the Native Land Court; but these powers are by the section expressly declared to be for the purpose of enabling it to deal fully and effectually with every class of case that shall come before it for validation, and with all questions arising in such cases, and to settle finally and for ever all differences, conflicts, and disputes between the parties relating to the lands and matters before it.

It is not necessary for us to determine here what orders it may make in the course of and for the purpose of carrying out these powers. It has, in the present case, determined the rights in respect of this land of various parties interested, and by virtue of its decree in the premises a certificate of title has been issued to the appellants. In respect of the lands included in this certificate the respondents have issued a caveat, and it is from the refusal, on the ground of want of jurisdiction, by the Judge of the Validation Court to order the removal of such caveat that the appeal is brought. On the certificate, standing by itself, the Court has clearly no jurisdiction to issue any mandate to the Registrar. The jurisdiction, if any, must be derived from the decree of the Court under which the certificate was issued, which decree purported to declare that the registered owners under the certificate held the land on certain trusts, which trusts were to be administered under the direction of the Validation Court.

I do not think that at any stage of the proceedings the Court could have issued directions binding the Registrar. The Act contains provisions (section 13) by which, by warrant from the Governor, directions may be given to the Registrar to issue a certificate of title to the person in whose favour an order or decree is made for the land described in such warrant, and for such interest, and subject to such conditions, liabilities, charges, annuities, liens, mortgages, or other debts, as may be directed by the order or decree of the Court under which the warrant is issued. The certificate has not been issued subject to any conditions or restrictions, and there is, as I have said, no power in the Court to impose directions on the Registrar directly. The power given by section 19 to give effect, in any proceeding under the Act, to any voluntary arrangement must be governed and controlled by the specific powers previously given. They cannot be held to give to the Court power, by consent of parties, to go beyond validating titles, and to make itself a Court to create and administer trusts in respect of the

C.A.

1901.

In re TAHORA.