R (Marquess of Clanricarde) v Estates Commissioners

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 30 June 1909
• Court: Court of Appeal (Ireland)
• Date: 30 June 1909

The King (at the prosecution Of The Marquess of Clanricarde)

and

The Estates Commissioners (4).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1909.

Compulsory purchase — Evicted Tenants (Ireland) Acts, 1907, 1908 — Offer — Objections — Petition against acquisition without further inquiry — Tenanted land — Consent — Estates Commissioners — Excess of jurisdiction — Prohibition — Waiver.

Held, by the King's Bench Division (Palles, C.B., and Andrews, J.; diss. Johnson, J.) and by the Court of Appeal, that C. was entitled to have the orders made absolute, on the grounds—

Per Palles, C.B. (with whom Andrews, J., concurred), that the Commissioners, without evidence sufficient to prove that the lands comprised in their offers to purchase were lands which they had jurisdiction to purchase, overruled C.'s objection which insisted on that absence of jurisdiction, and that C. had not waived his right to prohibition by presenting his petitions or otherwise.

Held, by Johnson, J. (who on other points concurred in the judgment of Palles, C.B.), that C. had lost his right to prohibition by presenting the petitions.

Held, by the Court of Appeal, that once it appeared by evidence on the hearing of the petitions, that the lands in each offer were partly tenanted by persons coining within the proviso in section 1 (3) of the Act of 1907, from whom valid consents had not been obtained under the Act of 1908, and the Commissioners, notwithstanding, persisted in continuing the proceedings, C. was entitled to prohibition.

Held, by the Lord Chancellor (diss. FitzGibbon, L.J., and dub. Holmes, L.J.), that the decision of the majority of the King's Bench Division in The King (Hinds) v. Estates Commissioners (ante, p. 258) was right; but held, by the Lord Chancellor and Holmes, L.J. (diss. FitzGibbon, L.J.), that C. had waived the necessity (if such existed) of an independent offer under sect. 1 (1) as a condition precedent to compulsory acquisition.

Held, by Lords Justices FitzGibbon and Holmes (diss. the Lord Chancellor), that the Commissioners, in deciding, under sect. 2 (4) of the Act of 1907, on the validity of objections lodged, are acting judicially; and (following In re Hind's Estate, 43 L. T. R. 75) their decision is appealable, or if they overrule such objections without notice to the objector, or hearing any evidence offered in support of the objections, prohibition may issue.

MOTION on behalf of the Marquess of Clanricarde, to make absolute two conditional orders, dated 26th February, 1909, that writs of prohibition should issue, directed to the Estates Commissioners, prohibiting them from taking further proceedings for the compulsory acquisition of the lands set out in the schedules to two offers of the Estates Commissioners, dated the 22nd December, 1908, in one of which £17,187, and in the other £11,180, were offered for the purchase of the lands respectively comprised therein, and each entitled “Irish Land Commission. Estates Commissioners. Offer under section 2 (4) of the Evicted Tenants (Ireland) Act, 1907. In the matter of the estate of the Most Noble the Marquess of Clanricarde, the supposed owner of land.” These orders were amended on the 4th May, 1909.

The facts of the cases, which are briefly outlined in the headnote, are fully stated in the judgments of the Lord Chancellor and Holmes, L.J., infra, pp. 561, 582, the grounds of the conditional orders as amended being set out infra, pp. 564, 565.

The Right Hon. J. H. Campbell, K.C., H. D. Conner, K.C., and J. W. Hynes, for the Marquess of Clanricarde.

Ronan, K.C., Jellett, K.C., and De Renzy, for the Estates Commissioners.

Palles, C.B.:—

As we understand from the statement made by Mr. Ronan, upon the day when we fixed the date for the argument of this motion, that the proceedings of the Estates Commissioners are being delayed in other cases, awaiting the decision of this Court upon the questions which were argued yesterday and to-day, we think it right that our decision should be given at once.

I am of opinion that the writ of prohibition asked for in each case ought to issue.

In arriving, however, at this conclusion, I do not express any opinion upon many of the arguments which have been addressed to us by the learned counsel who have moved for the writ. I base my judgment upon one single ground, viz., that the Estates Commissioners, without evidence sufficient to prove that the lands comprised in their offers to purchase are lands which they have jurisdiction to acquire compulsorily, overruled the objection of Lord Clanricarde, which insisted upon that absence of jurisdiction.

The 1st section of the Evicted Tenants Act, 1907, enacts that if it appears to the Estates Commissioners that it is expedient to acquire any land for the purposes of the Act, and if they have offered to the person appearing to them to be the owner of the land to pay a price which appears to them to represent the value thereof, and he has not within the prescribed time accepted the offer, they may, subject to the provisions as to appeal contained in the Act, acquire that land compulsorily for those purposes, in accordance with the provisions of the Act.

I pass over all the arguments which have been addressed to us in reference to the purposes of the Act. In the view which I take of the case those questions do not arise; and I come at once to the 3rd sub-section, which provides that “no tenanted land shall be acquired compulsorily which is in the possession or occupation of a bona fide tenant, using or cultivating the same as an ordinary farmer, in accordance with proper methods of husbandry.”

It is quite clear that, taking this section as it stood in the original Act, there was an absence of jurisdiction in the Commisssioners to acquire land, compulsorily, which fell within the description of “tenanted land” in this proviso. Last year, however, an amending Act of Parliament was passed (8 Edw. 7, c. 22), which enacted “That the proviso at the end of sub-sect. 3 of section 1 of the Evicted Tenants Act, 1907, shall not apply in any case where the tenant consents in writing to the compulsory acquisition of the land by the Estates Commissioners.” Then follows this proviso: “Provided that the tenant shall sign such consent in the presence of two witnesses, present at the same time, who shall attach their names thereto; and when so signed and witnessed, that the said consent shall be filed as a record in the office of the Land Commission.”

These two enactments taken together show that the Estates Commissioners have no jurisdiction to acquire tenanted land which is in the possession or occupation of a bona fide tenant, using or cultivating the same as an ordinary farmer, in accordance with proper methods of husbandry, unless the tenant has, by a document in writing, filed as a record in the office of the Land Commission, consented to the compulsory acquisition of the land by the Estates Commissioners.

Those are the material enactments bearing on the present case.

Assuming, as I do, but without expressing any opinion of my own upon the question, that the decision of the majority of the Court in The King (Hinds) v. Estates Commissioners(1) is correct, the first step in the procedure which the Estates Commissioners are, by the Act, directed to adopt for the purpose of acquiring lands compulsorily, is to publish a notice to that effect in the Dublin Gazette, calling upon any persons interested who may object to the acquisition of the land under the Act to lodge in the office of the Land Commission, within the prescribed period, a statement of the grounds of their objection. They accordingly did publish that notice in reference to the lands in question here; and Lord Clanricarde, who was a person interested in the lands, objected to their compulsory acquisition, and lodged in the office of the Land Commission a statement of the grounds of his objection. Amongst the many grounds of objection contained in that statement, Lord Clanricarde insisted that the lands were tenanted lands, and in the possession or occupation of bona fide tenants,

using or cultivating the same as ordinary farmers, in accordance with proper methods of husbandry.

The duty of the Commissioners when objections are filed is prescribed by the 4th sub-section of section 2 of the Act:— “If it appears to the Estates Commissioners, after considering the report of their inspectors, and any objections to the acquisition of the land lodged as aforesaid, that the land is suitable for the purposes of this Act, and that no valid objection has been raised to such acquisition, they may, if they think fit, make an offer to the person, appearing to them to be the owner of the land, for the purchase thereof at such price as appears to them prima facie to be a reasonable price.”

This offer, unless some step be taken by the persons interested, may result in the Estates Commissioners making an order vesting the land in the Land Commission. The 6th sub-section directs this course to be adopted by the Estates Commissioners if no petition has been presented to the Land Commission praying that the lands shall not be so acquired without further inquiry. If, on the other hand, such a petition is presented, all questions arising thereon shall be determined by the Estates Commissioners, subject to the right of an interested party to require the decision of the Judicial Commissioner on questions of law, and, subject to the determination of all questions arising on the petition, an order vesting the land in the Land Commission may be made.

It seems clear to me that, as the Estates Commissioners are a tribunal of inferior jurisdiction, no intendment can be made in favour of their jurisdiction; and that when an objection to that jurisdiction is made, as it was by Lord Clanricarde, it is impossible...