The State (Philpott) v Registrar of Titles

• Jurisdiction: Ireland
• Judge: Gannon J.
• Judgment Date: 01 January 1986
• Neutral Citation: 1985 WJSC-HC 2684
• Docket Number: No. 255SS/1985
• Court: High Court
• Date: 01 January 1986

1985 WJSC-HC 2684

THE HIGH COURT

No. 255SS/1985

PHILPOTT v. REGISTRAR OF TITLES

STATE SIDE

BETWEEN

THE STATE (AT THE PROSECUTION OF CHRISTOPHER PHILPOTT)

PROSECUTOR

AND

THE REGISTRAR OF TITLES

RESPONDENT

Citations:

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381, 1982 ILRM 590

CROWLEY, STATE V IRISH LAND COMMISSION 1951 IR 250

EAST DONEGAL CO-OP V AG 1970 IR 317

INGLE V O'BRIEN 109 ILTR 7

LAND REGISTRATION RULES 1972 SI 230/1972 r137–145

LAND REGISTRATION RULES 1972 SI 230/1972 r142

LAND REGISTRATION RULES 1972 SI 230/1972 r38(3)

LEARY V NATIONAL UNION OF VEHICLE BUILDERS 1971 1 CH 34

R V DUBLIN CORPO 2 LR (IRL) 371

WEXFORD COUNTY COUNCIL, R V LOCAL GOVT BOARD 1902 2 IR 249

REGISTRATION OF TITLE ACT 1964 S120

REGISTRATION OF TITLE ACT 1964 S121

REGISTRATION OF TITLE ACT 1964 S121(2)

REGISTRATION OF TITLE ACT 1964 S121(3)

REGISTRATION OF TITLE ACT 1964 S19(1)

REGISTRATION OF TITLE ACT 1964 S3(1)

REGISTRATION OF TITLE ACT 1964 S32(1)

REGISTRATION OF TITLE ACT 1964 S38(1)

REGISTRATION OF TITLE ACT 1964 S50(1)

REGISTRATION OF TITLE ACT 1964 S7(1)(j)

REGISTRATION OF TITLE ACT 1964 S7(1)(p)

REGISTRATION OF TITLE ACT 1964 S72(1)(h)

REGISTRATION OF TITLE ACT 1964 S97

REGISTRATION OF TITLE ACT 1964 S98

Synopsis:

NATURAL JUSTICE

Fair procedures

Power - Exercise - Notice of intention to exercise power - Whether necessary - Held in affirmative - Registered land - Inhibition - Bar on dealings with land - Registrar of Titles entering inhibition on folio of owner's land - No evidence that entry justified - Entry quashed on certiorari - Registration of Title Act, 1964, s. 121 - (1985 No.255 SS - Gannon J. - 29/7/85).

|The State (Philpott) v. Registrar of Titles|

REAL PROPERTY

Registered land

Inhibition - Entry - Validity - Statutory power - Exercise - Fair procedures - Whether notice of intention to exercise power necessary - Held in affirmative - Registrar of Title entering inhibition on folio of owner's land - Bar on dealings with land - Notice of entry given to owner after event pursuant to statutory requirement - No disclosure of nature of claim by third party justifying exercise of power - No evidence that entry of inhibition necessary to protect Central Fund from a claim - Entry of inhibition quashed con certiorari - Registration of Title Act, 1964, s. 121 - (1985 No.255 SS - Gannon J. - 29/7/85).

|The State (Philpott) v. Registrar of Titles|

STATUTE

Powers

Exercise - Fair procedures - Power of judicial nature - Notice of intention to exercise power - Whether necessary - Registered land - Inhibition - Registrar of Titles entering inhibition on folio of owner's land - Bar on dealings with land - Notice of entry given to owner after event pursuant to statutory requirement - Whether notice of intention to enter inhibition should have been given - Held in affirmative - No disclosure of nature of claim by third party justifying exercise of power - No evidence that entry of inhibition necessary to protect Central Fund from a claim - Entry of inhibition quashed on certiorari - Registration of Title Act, 1964, s. 121 - (1985 No.255 SS - Gannon J. - 29/5/85).

|The State (Philpott) v. Registrar of Titles|

1 Judgment of Gannon J. delivered the 29th day of July, 1985

2 This is an application to make absolute notwithstanding cause shown a Conditional Order of Certiorari granted on the 6th of May, 1985 directed to the Registrar of Titles in the Land Registry. The prosecutor was on the 28th July, 1983 registered full owner with possessory title of 4.505 hectares in the townland of Glenaknockane, Barony of Duhallow, Co. Cork in folio 29970F of the Register of Freeholders Co. Cork. On the 19th of February, 1985, the respondent, the Registrar of Titles, entered on the said folio an inhibition against all dealings with these lands without the approval of the respondent. Prior thereto the prosecutor had entered into a contract on the 23rd of November, 1984 for the sale with other lands of the lands on this folio. The sale had not been closed on the 7th of December, 1984 which was the closing date prescribed in the contract and completion was still pending on the 19th of February, 1985. The prosecutor had had no notice of the intended entry of the inhibition on the folio, the entry whereof is in purported exercise of a power conferred on the respondent pursuant to section 121 of the Registration of Title Act 1964. The first notification the prosecutor received of the exercise of this power by the respondent was a letter dated the 25th of February, 1985 from the Examiner of Titles in the Land Registry with which was enclosed a letter dated the 28th of September, 1984. Although not expressed to be from the Registrar the letter appears to have been sent in compliance with subsection (3) of section 121 of the 1964 Act. The letter is addressed to the solicitors for the prosecutor with a heading referring to the folio and lands of the prosecutor and is signed by the Examiner of Titles. It states as follows:-

"Dear Sirs,"

3 We had correspondence from Messrs. David J. O'Meara & Sons of Bank Place, Mallow, Co. Cork on behalf of Mr. Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre, Banteer claiming rights. We enclose herewith a copy of our reply of the 28th September, 1984.

4 It has been decided to enter an inhibition under section 121 of the Registration of Title Act 1964in the event of there being an error and claim under this section. The inhibition reads "all dealings are inhibited except with the approval of the Registrar of Titles".

5 A copy of this letter has been sent to the registered owner, Christopher Philpott."

6 The enclosure with that letter was a letter from the Examiner of Titles to Messrs. David J. O'Meara & Sons, Solicitors, Bank Place, Mallow, Co. Cork with a reference to folio 29970E County Cork, registered owner Christopher Philpott of Glouncome, Lyre, Banteer, Co. Cork your clients Bartholomew Leahy of Knock, Lyre, Banteer and John Scanlon and John Sheehan of Glenaknockane, Lyre. It said:-

"Dear Sirs,"

7 Your letter of the 17th September, 1984 addressed to Richard Sherlock of this office has been passed to me.

8 On the basis of the effect of registration with a possessory title as set out in section 38 (1) of the Registration of Title Act 1964the registration of Christopher Philpott is in order.

9 Any person aggrieved by the decision may appeal to the Court under section 19 (1) of the said Act. Alternatively, an application may be made to convert the title under section 50 (1) of the said Registration of Title Act and rule 38 (3) of the Land Registration Rules 1972. If the applicants application is based on possession form 5 of the said rules should be considered, in a similar manner to an application for first registration based on possession.

10 You should also see sections 97 and 98 of the Registration of Title Act 1964. Your clients may have rights which can be protected under these sections.

11 Your clients rights may also be protected under paragraphs (h), (j) or (p) of subsection 1 of section 72 of the said Act."

12 It is signed by the Examiner of Titles.

13 On receipt of notification of the entry of the inhibition the prosecutor's solicitors enquired from the Examiner of Titles if the purchasers from the prosecutor could be registered as owner on completion of the sale. The reply from the Examiner of Titles is dated the 27th of March, 1985 and is as follows:-

"Dear Sirs,"

14 We are in receipt of your letter of the 28th February 1985 which has only recently reached the writer.

15 The inhibition may not be removed until the matters arising on the title and the registration are rectified and the registration of Patrick and Particia Barry may not be completed.

16 The registration of Christopher Philpott with a possessory title was made on foot of the affidavit dated the 11th May, 1981 of Christopher Philpott and your letter of reply of the 1st June, 1983. It is now possible that the registered owner is not entitled to the fee simple. An application to convert the title to absolute should be made by the registered owner. All parties will then be notified and their rights clarified if possible."

17 It is signed by the Examiner of Titles.

18 The grounds upon which the Conditional Order of Certiorari was granted on the 6th of May, 1985 are set out in the following four paragraphs in the Order namely:-

19 2 "1. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the said section in and about his decision to enter the same.

20 2. That the decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles failed to adhere to the procedure laid down by the land registration rules for the entry of such inhibitions.

21 3. That the said decision or Order of the Registrar of Titles to enter the said inhibition is void and of no effect because the Registrar of Titles, prior to the time when he entered the said inhibition on the register, failed to inform the prosecutor either of the fact that he proposed to enter such an inhibition or the grounds for such entry or to afford to the prosecutor an opportunity to make representations or otherwise to be heard by him in relation to the entry of the said inhibition.

22 4. That the Registrar failed to exercise his power to enter inhibitions on the register pursuant to section 121 of the Registration of Titles Act 1964in accordance with the requirements of constitutional and natural justice."

23 The prosecutor accordingly challenges the determination of the Registrar to place an inhibition on the folio on the grounds that the Registrar did not conform to the requirements of section...