(Kelly and Others) v Maguire and O'Sheil

• Jurisdiction: Ireland
• Judgment Date: 28 February 1923
• Date: 28 February 1923
• Court: King's Bench Division (Irish Free State)

R. (Kelly and Others) v. Maguire and O'Sheil.

THE KING (Mortimer Kelly, Patrick Casey (Kid), John Murphy, Patrick Casey (Martin), and Daniel Brohan)

and

CONOR MAGUIRE, Land Judge of the Land Court, Dáil Éireann éireann, and KEVIN O'SHEIL, Commissioner of the Land Settlement Commission, Dáil ÉIREANN éireann (1)

K. B. Div. (I. F. S.)

Prohibition - Certiorari - Illegal bodies acting as Courts - Jurisdiction of Court to interfere with orders of such bodies.

On a motion on notice for a writ of prohibition directed to C. M. and K. O'S., and other, the Judges and Commissioners of the Land Court and Land Settlement Commissioners of Dáil Eireann to prohibit them from proceeding upon or otherwise enforcing certain orders or judgments of the said Land Court and Land Settlement Commission, dated 12th November, 1920, and 14th October, 1932, and for a writ of certiorari to bring up the said orders for the purpose of having the same quashed, on the ground that the said orders were ultra vires and bad on their face:

Held, that the Court cannot grant a writ of prohibition directed to persons who, without any lawful authority, purport to act as a Court: Clifford v. O'Sullivan,[1921] 2 A. C. 570, applied. And where, there being no right or duty in the tribunal to decide a matter—its assumption of authority is illegal from the beginning—it is not subject to certiorari.

Per Dodd J.: The only Courts that can be restrained by prohibition are Courts established by the Legislature when usurping a jurisdiction of a judicial character not within, or in excess of, powers conferred upon them by the Legislature.

Per Samuels J.: These tribunals were in no sense Courts; their decrees were absolutely void in law. There was no Court to prohibit, and no judgment order or record to quash.

Application to the King's Bench Division for writs of prohibition and certiorari directed to the Judges and Commissioners of the Land Court and Land Settlement Commission of Dáil Éireann éireann.

The following statement of the facts is taken from the judgment of Molony C.J.:—

On the 4th December, 1922, an application was made to the Court on behalf of Mortimer Kelly and four other persons as prosecutors for a conditional order for a writ of prohibition directed to Conor Maguire and Kevin O'Sheil and other the Judges and Commissioners of the Land Court and Land Settlement Commission of Dáil Éireann éireann, to prohibit them and each of them from further entertaining an application at the suit of Michael Healy and twenty-three other persons, and from further proceeding upon or otherwise enforcing certain orders or judgments of the said Land Courts and Land Settlement Commission made upon said application and dated respectively 12th November, 1920, and 14th October, 1922, and for a writ of certiorari directed to the said conor Maguire and Kevin O'Sheil and certain other persons directing them and each of them to bring up the said orders for the purpose of having same quashed on the ground that the said orders were ultra vires and bad on their face, and were contrary to the common law and to natural justice. The Court, instead of granting a conditional order, directed notice of motion to be served on the parties interested, and the case was fully argued in the presence of counsel for the prosecutors and

the applicants. It appears from the affidavit that the prosecutors are tenants from year to year of holdings forming part of the lands of Rineen, in the County of Clare. The total acreage of the five holdings is stated to be 230 acres, 2 roods, 27 perches, and the Poor Law Valuation, £242 15s.

The applicants are, or represent themselves to be, landless men, or holders of uneconomic holdings, and on the 12th November, 1920, they claimed in the Dáil Éireann éireann Land Court to be entitled to additional land to bring their holdings up to the standard of an economic holding; and after a hearing before Mr. Conor Maguire he ordered that John Hynes and five other persons, who were alleged to be in possession of uneconomic holdings, should have allotted to them out of the lands of the prosecutors so much land as would bring the holdings in the possession of each of them to a total value of £11, and he further ordered that James Keane and ten other persons, who belonged to what is termed in the order the non-occupying agricultural class, should also be allotted, out of the lands of the prosecutors, so much land as would provide each of them with a holding to the value of £11, and in order to provide this land the entire holding of Daniel Brohan was taken away from him and the compensation fixed at £200; and out of the lands in the occupation of Mortimer Kelly, land to the value of £17 15s.; and out of the lands in the occupation of Patrick Kelly, land to the value of £75; and out of the lands of John Murphy, land to the value of £30; and out of the lands of Patrick Casey (Martin), land to the value of £5 10s. The prosecutors (other than Brohan) were, however, to get, on possession being given and certain requirements as to fences carried out, a sum calculated at seven times the annual apportioned rent of the said lands. The order further provided for the appointment of a Valuer, who should settle the boundaries of the lands to be allotted to the claimants, and apportion the present rent over the lands so allotted.

The prosecutors served notice of appeal from this order in November, 1920, and on the 6th October, 1921, the appeal came to be heard before Mr. Kevin O'Sheil, purporting to act as a Judge of the Land Settlement Commission. He made an order on the 14th October, 1922, and thereby deprived the applicants of their lands without compensation, and ordered them to be re-divided amongst the persons named in the schedule. The effect of the order appears to be that the prosecutor Daniel Brohan was deprived of his entire holding, value £26 15s., without compensation; Patrick Casey (Martin) was deprived of his holding, £13 10s., and a holding, value £11, substituted; Mortimer Kelly was deprived of his holding, value £34 10s., and a holding, value £6 10s., substituted; John Murphy was deprived of his holding, value £55 10s., and there was substituted for it a holding, including lands and buildings, value £21 15s.; Patrick casey, senior, otherwise Patrick Casey (Kid), was deprived of his holding, value £113, and there was substituted for it a holding, including buildings, valued at £11.

Molony C.J. [having stated the facts continued]:—

It has been contended, on behalf of the prosecutors, that we can take cognizance of the Courts of Dáil Éireann éireann and restrain their proceedings when they exceeded the jurisdiction which has been entrusted to them by the body which they professed to serve. It appears that the jurisdiction of these Courts is derived from a Decree of An Dáil, dated 17th September, 1920, and it has been contended that the order of Mr. Kevin O'Sheil is bad on its face because there is no jurisdiction given to him by the Decree of An Dáil either to take a man's property without compensation or to hear an appeal, sitting alone.

Reference has been made to Clause 6 (b) of the Decree, which provides that "all appeals to the Land commission under this Decree shall be heard by at least two commissioners (one of whom shall be the Legal Commissioner) sitting together"; and to sections which provide for the appointment of independent valuers, and give powers to purchase or lease lands on terms to be arranged by the Land Commission.

Mr. Costello, for the persons to whom the land has been allotted, while not disputing the facts alleged by the prosecutors, has argued that Dáil Éireann éireann was an unlawful body, and the Courts which acted under it were also unlawful, and that there is no jurisdiction in this Court to grant a prohibition to a Court which was illegal in its inception and wholly illegal in its operations. He further said that his clients had no present intention of acting on the orders, and submitted that if they attempted to do so the proper remedy against them would be an injunction in the Chancery Division.

Mr. Costello's argument finds confirmation in clause 2 (b) of the Decree of An Dáil, which provides that "judicial notice shall be taken by all Courts of Justice of the Irish Republic of the Corporate Seal of the Land Commission, and any order or instrument bearing the said

seal shall be received as evidence without further proof"; and indeed it is not necessary to go further than the order of Mr. Conor Maguire, which states on its face that it was given "at Ennis this 12th day of November in the fifth year of the Irish Republic, 1920 a.d."

The question, then, is whether this Court can grant a Writ of Prohibition directed to persons who without any lawful authority purport to act as a Court. The answer to this will be found in the judgments in the House of Lords in the case of Clifford and O'Sullivan(1), where the whole subject of prohibition will be found exhaustively considered. It was argued that the tribunal there under discussion was so far a Court that it ought to be prohibited because it had all the outward manifestations of a Court, and observed all the regular judicial forms. It had, however, to be admitted in that case that the Military Court had no legal authority, just as it has to be admitted in this case that an alleged Court, which purports to act under a Decree of An Dáil, cannot be recognized by us, and is, in fact, unlawful.

Viscount Cave sums up the law with perfect clearness, if I may respectfully say so (p. 582). He says: "The writ of prohibition has been described as 'a judicial writ' issued out of a Court of superior jurisdiction, and directed to an inferior Court, for the purpose of preventing the inferior from usurping a jurisdiction with which it was not legally vested, or, in other words, to compel Courts entrusted with judicial duties to keep within the limits of their jurisdiction (see Short...