Re Lynam's Estate

• Jurisdiction: Ireland
• Judgment Date: 08 February 1928
• Date: 08 February 1928
• Court: Supreme Court (Irish Free State)

Supreme Court.

Lynham's Estate.

ESTATE OF FRANCIS LYNHAM, Owner (1)

Landlord and tenant - Land purchase - Order of Judicial Commissioner declaring holding to be one to which the Land Act, 1923, applied - Action for recovery of possession - Landlord's objection to "provisional list" - Objection disallowed by the Land Commission - Appeal to Judicial Commissioner - New grounds of objection - Additional documentary evidence - Tenancy held by Judicial Commissioner to be one for "temporary convenience" - Discharge by Judicial Commissioner of his previous order and of the order made by the Land Commission - Jurisdiction of Judicial Commissioner to make such order - Res judicata - Estoppel - Validity of Rules under the Land Purchase Acts - Right of appeal from Judicial Commissioner to Supreme Court - Land Law (Ir.) Act, 1881 (44 & 45 Vict. c. 49),sect. 48, sub-sect. 5 - Land Act, 1923 (No. 42 of 1923), sects. 19, 20, 21, 22, 24, 40, 73, 76.

Appeal from an order of the Judicial Commissioner of the Irish Land Commission (Wylie J.), dated the 29th June, 1926.

The appellant, the Rev. Michael Butler, the tenant of the lands in question, applied for an order to reverse so much of the said order of Wylie J. as declared that the tenancy created by the lease, dated 30th July, 1920, under which the tenant held, was a "letting for temporary convenience"; and directed that the previous order made by the Judicial Commissioner, dated 7th February, 1924, and the order of the Irish Land Commission, dated 21st October, 1925, be discharged; and allowed the objection of "the owner," Francis Lynham, to the "provisional list." The grounds of the application were as follows:—That the order was made without jurisdiction, and in excess of jurisdiction; and that the matters in dispute between the parties were res judicata, and had already been determined in favour of the tenant by a competent Court, and could not be re-opened; and that the letters offered as further evidence were not disclosed with reasonable diligence, and were not conclusive as to the issues involved.

An action for the recovery of possession of these lands had been brought in the High Court by the said Francis Lynham against the said Rev. Michael Butler, and the case is reported (1).The facts in the present case have been summarized in the headnote, and are fully stated in the judgment of the Chief Justice. The letters relied on as additional evidence at the hearing before the Judicial Commissioner are also set out in the judgment of the Chief Justice.

M., a tenant for life of certain lands, demised them on the 30th July, 1920, for the term of her life to B. On M.'s death on 22nd August, 1924, L., being entitled in remainder in fee-simple, brought an action in the High Court to recover possession of the lands from B. During M.'s lifetime (i.e., on the 7th February, 1924) B. had obtained an order from the Judicial Commissioner declaring the holding to be one to which the Land Act, 1923, applied. The High Court held, on the 2nd March, 1925, that that Act deprived L. of any right to recover possession. An appeal to the Supreme Court was dismissed on 14th July, 1925 (reported sub nom.Lynham v. Butler, [1925] 2 I.R. 82, 231). The Judicial committee gave leave to appeal, but the appeal was withdrawn following the passing of the Land Act, 1926. L. served notice of objection to the "provisional list" of the lands which, if not excluded in consequence of a valid objection, would become vested in the Land Commission on the "appointed day," as this list contained particulars of the holding in question. The objection was disallowed by the Land Commission on 21st October, 1925. L. then served notice requiring the objection to be reheard by the Judicial Commissioner, relying on a new objection, viz.:—that the tenancy created by the lease of 30th July, 1920, was a "letting for temporary convenience,"and alleging the discovery of additional material evidence in the form of certain letters. The Judicial Commissioner made an order declaring that the tenancy was a "letting for temporary convenience," and discharged his own previous order of the 7th February, 1924, and also discharged the order made by the Land Commission on 21st October, 1925, and allowed L.'s objection to the "provisional list." B. appealed to the Supreme Court.

Held by the Supreme Court (Kennedy C.J., FitzGibbon and Johnston JJ.) that the Judicial Commissioner was not bound by his previous order of 7th February, 1924, and that it did not work an estoppel (Kennedy C.J. holding that that order was made without jurisdiction; FitzGibbon and Johnston JJ. basing their judgments on the provisional nature of the order, and that it was made for another purpose, viz.: the collection of compounded arrears and payment in lieu of rent). Accordingly (perKennedy C.J. and FitzGibbon J.; Johnston J. not expressly so deciding), it was not necessary for the Judicial Commissioner to have recourse, as he had done, to sect. 48, sub-sect. 5, of the Land Law (Ir.) Act, 1881, to discharge that order; but (per FitzGibbon J. and Johnston J.) that he had jurisdiction under that section to discharge it if it was necessary for him to do so.

Held also (FitzGibbon and Johnston JJ.; Kennedy C.J. dissenting), that the Judicial Commissioner had jurisdiction to allow the amendment

of the notice of objection to the "provisional list" by adding an averment that the letting was one for "temporary convenience," and had jurisdiction to deal himself with the objection as so amended without remitting it to the Land Commission, and that he had rightly exercised the jurisdiction vested in him.

Held further (FitzGibbon and Johnston JJ.; Kennedy C.J. dissenting), that neither the judgment of the High Court nor of the Supreme Court in the ejectment proceedings operated as an estoppel as regards the jurisdiction of the Judicial Commissioner to make the order appealed from, and that accordingly the appeal must be dismissed.

Validity of the Rules under the Land Purchase Acts considered.

Right of appeal from the Judicial Commissioner to the Supreme Court discussed.

Cur. adv. vult.

Kennedy C.J. :—

This is an appeal from an order of the Judicial Commissioner of the Irish Land Commission (Wylie J.) made on the 29th June, 1926, whereby it was declared that the tenancy created by a lease dated the 30th July, 1920, of certain lands of Mountseskin in the County of Dublin was a letting for temporary convenience, and whereby two orders of the Land Commission, dated respectively the 7th February, 1924, and 21st October, 1925, were discharged (save as to certain costs), and the owner's objection to a "provisional list" of the said lands published in the Iris Oifigiúil of 14th October, 1924, pursuant to sect. 40, sub-sect. (2), of the Land Act, 1923, was allowed.

The appellant is the tenant (the Reverend Michael Butler), and the grounds of his appeal as set out in the notice of appeal are, first, that the order was made without jurisdiction and in excess of jurisdiction; secondly, that the matters in dispute between the parties were res judicata, and had been already determined and decided in favour of the tenant by a competent Court; and thirdly, that letters offered as further evidence were not disclosed with reasonable diligence, and were not conclusive as to the issues involved.

The history of the lands in question has been already fully before this Court in an appeal in an action of ejectment on the title, Lynham v. Butler(1), where the facts are set out in detail. The lease of 30th July, 1920, with which we are concerned was made by one Mary MacInerney, who was then seized of the lands as legal tenant for life. The term of the lease was"for the term of the natural life of the said Mary MacInerney, the lessor, from the 15th May, 1920." The lease contained no recitals, and was not expressed to be made for temporary convenience.

Upon the death of Mrs. MacInerney, which occurred on the 22nd August, 1924, the person entitled in remainder in fee-simple expectant on her life estate was Francis Lynham, the"owner" in these proceedings. The Land Act, 1923 (No. 42 of 1923), had, however, been passed by the Oireachtas on the 9th August, 1923, and the tenant, the present appellant, had taken steps to secure for himself the benefit of the Act. On the 8th January 1924, he served notice of an application to the Judicial Commissioner for a declaration that the lands demised to him by the lease of 30th July, 1920, were "a holding to which the Land Act, 1923, applies." The application was made pursuant to procedure which was prescribed by a rule made under the Act on the 19th November, 1923, to obtain a"judicial declaration" whether the Act applied to the holding, if required by the landlord or by the tenant "for the purpose

of the collection of compounded arrears of rent and payment in lieu of rent." The application was heard by the Judicial Commissioner of the Land Commission on the 7th February, 1924, when, upon hearing the evidence of two witnesses, viz., the tenant and Mr. W. A. Ryan (the landlord's agent), and upon hearing counsel for the tenant, and counsel for Mrs. Mary MacInerney (the landlord as tenant for life), and counsel for Francis Lynham (as entitled in remainder), the Judicial Commissioner"declared that the said holding is one to which the said Act applies," and the landlord was ordered to pay the costs. This is one of the orders discharged by the order from which the appeal is taken.

Mrs. MacInerney, as already mentioned, died on the 22nd August, 1924, and on the 19th September, 1924, Francis Lynham issued a writ in the High Court claiming to recover possession of the demised lands and premises from the appellant. The action came to trial on the 20th February, 1925, before the President of the High Court, without a jury, when judgment was given for the defendant, the present appellant. In the meantime, viz., on the 14th October, 1924...