Butler, Lynam v (No. 2)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1933
• Date: 01 January 1933
• Docket Number: (1929. No. 136.)
• Court: Supreme Court (Irish Free State)

Lynham v. Butler (No. 2).

FRANCIS LYNHAM

Plaintiff

and

MICHAEL BUTLER,Defendant (No. 2) (1).

(1929. No. 136.)

High Court.

Supreme Court.

Land Purchase Acts - Jurisdiction of Commissioners of the Land Commission other than Judicial Commissioner - Exercise of powers conferred by Land Act, 1923 - Ascertainment of lands to be vested in the Land Commission. - Whether exercising judicial or administrative powers - Whether jurisdiction conferred a violation of the Constitution - Status of Judicial Commissioner on hearing appeals - "Judicial power of the Irish Free State" - Practice - Pleading - Rejoinder - Motion to strike out paragraphs of rejoinder - Estoppel - Land Law (Commission) Act, 1923 (No. 27 of1923), sects. 4, 12 - Land Act, 1923 (No. 42 of 1923) sects. 24, 40 -Constitution of the Irish Free State (Saorstát Éireann éireann) Act, 1922 (No. 1of 1922), Sch. I, Arts. 2, 64, 68, 69.

The plaintiff commenced an action against the defendant claiming mesne rates, or, alternatively, damages for trespass, in respect of the defendant's occupation of certain lands from August 22nd, 1924, to April 3rd, 1928. The former date was the date of the death of the cestui-que-vie for whose life the lands had been demised by the plaintiff to the defendant. The latter date was the date upon which the defendant had delivered up possession. The defendant, in his defence, pleaded that under and by virtue of the Land Acts, 1923, 1926 and 1927, he was entitled to the full beneficial occupation and possession of the lands as occupier of tenanted lands within the meaning of the said Acts to the exclusion of the plaintiff. He further pleaded a judgment of the High Court, affirmed by the Supreme Court, in a prior action of ejectment between the parties, as a decision in rem and an estoppel. By the said judgment the plaintiff's claim for possession of the lands had been dismissed on the ground that the Land Act, 1923, applied to them (reported [1925] 2 I. R. 82, 231). He also relied upon an order of the Judicial Commissioner, dated February 7th, 1924, declaring that the Land Act, 1923, applied to the lands; and he counterclaimed for possession. In his reply, the plaintiff pleaded a later order of the Judicial Commissioner, dated June 29th, 1926, made on appeal from a decision of the Commissioners of the Irish Land Commission other than the Judicial Commissioner in reference to the plaintiff's objection to the inclusion of the lands in a provisional list of lands to be vested under the Land Act, 1923. By the said order, the Judicial Commissioner had discharged his previous order of February 7th, 1924, and had declared that the lease under which the lands were let was a letting for temporary convenience, to which the Land Act, 1923, did not apply. The plaintiff further relied in his reply on the judgment of the Supreme Court affirming the said order of June 29th, 1926 (reported [1928] I. R. 127). The defendant obtained leave from the High Court to plead a rejoinder. Paragraph 2 of the rejoinder denied that the original letting was one for temporary convenience and reasserted the defendant's claim to be an occupier of tenanted land. Paragraph 3 averred that the order of the Judicial Commissioner, dated June 29th, 1926, and the order of the Supreme Court affirming that order were had in proceedings misconceived and taken without warrant in law by way of appeal (whereas no appeal lay) from a pretended adjudication made wholly without jurisdiction and in violation of the Constitution by the Commissioners (other than the Judicial Commissioner) of the Irish Land Commission, purporting to sit as a Court and purporting to exercise judicial power and administer justice in the Irish Free State although not duly constituted for any such purpose. The plaintiff moved that these paragraphs should be struck out.

The High Court (Sullivan P., Hanna and O'Byrne JJ.), being of opinion that the defendant could not be heard in that Court to impeach the validity of the order of the Supreme Court referred to in the rejoinder, ordered that the pleas should be struck out.

Held, by the Supreme Court, that, the questions raised by the rejoinder being questions of law only and having been fully argued upon the appeal, the defendant had failed to establish the defence pleaded byway of rejoinder, and judgment should be given against him upon the defence so pleaded.

Order of the High Court affirmed but varied as to striking out the pleas in the rejoinder.

Per Kennedy C.J.— The duties imposed by sect. 40 of the Land Act, 1923, relating to the ascertainment of the lands to be vested in the Land Commission under the Act, are purely administrative; and the Judicial Commissioner, when he hears an "appeal" from the ruling of the nonjudicial Commissioners on an objection under sect. 40, sits as a Judge of first instance, a Judge of the High Court exercising, as a matter of its original jurisdiction under the Constitution, the judicial power of the State and subject to appeal as prescribed by law to the Supreme Court.

Per FitzGibbon J.—The Judicial Commissioner was not exercising a merely appellate jurisdiction when he made the order dated June 29th, 1926, but was giving a judicial decision upon a question which had arisen before, and had been decided by, the Land Commission in the exercise of its administrative functions.

Per Johnston J.—The ascertainment by the Commissioners, other than the Judicial Commissioner, of the land to be vested in the Land Commission under the Land Act, 1923, is not in any sense an exercise of judicial power within the meaning of Article 64 of the Constitution.

Meaning of "judicial power" considered.

Motion.

On the 27th March, 1929, the plaintiff, Francis Lynham, issued a plenary summons against the defendant, Rev. Michael Butler, claiming £1,600, being damages for trespass and mesne rates payable by the defendant in respect of the occupation by the defendant of the plaintiff's lands at Mountseskin in the County of Dublin.

These lands had been the subject of previous litigation, as stated in the head note, and more fully referred to in the judgment of Kennedy C.J. Following this litigation the defendant gave up possession of the lands on the 3rd April, 1928. The previous litigation is reported (1).

The statement of claim in the present action, delivered on the 31st July, 1929, was as follows:—

"1. Mary Macinerney was entitled to a life estate in the fee simple interest in the lands of Mountseskin, in the Barony of Upper Cross and County of Dublin, containing 674 acres, 2 roods, 30 perches statute measure.

2. During her life time the said Mary Macinerney made a lease of said lands of Mountseskin to the defendant for the duration of her life at the yearly rent of £450 0s. 0d.

3. The said Mary Macinerney died on the 22nd day of August, 1924, whereupon the plaintiff under the terms of the will, dated the 19th day of May, 1866, of his grandfather, Francis Lynham, became entitled to the fee simple estate in possession in the said lands of Mountseskin.

4. On the death of the said Mary Macinerney the

interest of the defendant in the said lands of Mountseskin under the said lease determined and expired.

5. The defendant, although called upon by the plaintiff, refused to deliver up to the plaintiff possession of the said lands of Mountseskin and wrongfully continued in possession and in receipt of the rents and profits thereof from the 22nd day of August, 1924, until the 3rd day of April, 1928.

The plaintiff claims:—

£1,635 18s. 8d. mesne profits; alternatively £1,635 18s. 8d. damages for trespass."

The defendant's defence and counter-claim delivered on the 17th October, 1929, were as follows:—

"1. The defendant denies that the plaintiff became or is entitled to the fee simple estate in possession in the said lands of Mountseskin as alleged, or at all.

2. The defendant denies that his interest in the said lands of Mountseskin was determined or expired on the death of the said Mary Macinerney, but says that under and by virtue of the Land Acts, 1923, 1926 and 1927, he is entitled to the full beneficial occupation and possession of the said lands as occupier of tenanted lands within the meaning of the said Acts to the exclusion of the plaintiff, and the defendant denies that his continuance in possession of the said lands was wrongful.

3. By way of further defence to the claim of the plaintiff in this action, the defendant says that by orders and judgments of the High Court of Justice in Saorstát Éireann éireann (Record Number 1924/5898) and of the Supreme Court of Justice in Saorstát Éireann éireann in a certain action in which the plaintiff in this action was plaintiff and the defendant in this action was defendant, the claim of the plaintiff in this action to recover possession of the said lands and to mesne profits from the defendant in respect of the occupation of the said lands was adjudged to be dismissed with costs, and the defendant will rely on Article 66 of the Constitution and submits and will contend at the trial that the claim of the plaintiff in this action is res judicataand that the plaintiff is estopped from claiming or recovering the relief sought for in this action.

4. The defendant further says, in answer to the claim of the plaintiff, that the plaintiff is estopped from claiming or recovering the relief sought for in this action and that the subject-matter of this action is res judicata under and by virtue of all order dated the 7th February, 1924, made by Mr. Justice Wylie (Record Number 179), in the Court, of the Irish Land Commission, in which proceedings the plaintiff was represented and in which it was declared that the land and premises the subject matter of this action were tenanted lands within the meaning of the Land Act, 1923. The defendant submits and will contend that by reason of the said order and declaration the plaintiff is not entitled to the relief sought or any part thereof.

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