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GAZETTE
SEPTEMBER 1979
twelfth and eighteenth years of the
said term to call for a review of the
said yearly rent by giving to the
tenant one quarter's notice in
writing of such desire if the
Landlord considers the fair rental
value of the demised premises has
increased".
The sixth year of the term ended on
11 February 1976 and on 16
December 1976 the Landlord's
(Plaintiff's) solicitors wrote to the
Tenant (Defendant) seeking an
increase in the rent as from 11 May
1977. This was refused and the
issues which came to the Court were:
(1) Whether a time was fixed for the
service of a notice, and, if so,
(2) whether that time was of the
essence of the contract.
Held
(per McWilliam J. ) —
having reviewed the English cases of
Samuel Properties
(Developments)
Ltd. v. Hayek
[1972] IW.L.R.
1296;
Kenilworth Industrial
Sites
Ltd.
v.
E. C. Utile & Co. Ltd.
[1975]
IW.L.R. 143;
Accuba Ltd. v. Allied
Shoe Repairs Ltd.
[1975] IW.L.R.
1559; and
United Scientific Holdings
Ltd. v. Burnley Borough Council
[1977] 2 W.L.R. 806 — that as no
time was specified for initiating the
procedure, this indicated that the
parties were concerned about the
periods for which, and the methods
by which, rent should be increased
but were not greatly concerned about
the time at which the procedure
should be instituted.
Held
further that there was no
indication that any particular time for
initiating the procedure was intended
to be of the essence of the contract.
As the Defendant had not been
prejudiced by the delay in having the
rent fixed the Landlord was entitled
to have it fixed now as it would have
been fixed at the end of the sixth year.
There was no issue in this case
(unlike the
United Scientific Holdings
case) as to the time from which the
new rent should be payable as the
parties had agreed that it should be
payable from May 1977.
By Limited v. I.C.R. Ltd.-High
Court (McWilliam J) — unreported
— 3 April 1979.
LAW OF PROPERTY
Adverse possession may arise with-
out either party (i.e. the party entitled
to the property or the party in whose
favour the Statute of Limitations
1957 operates to vest the interest in
the property) being aware of it.
In 1920, a testator bought a farm of
153 acres of freehold lands. This
farm lay north and south of the
Loughrea-Kilchreest road in County
Galway. The portion north of the
road contained 40 acres and the por-
tion south of the road contained 113
acres. The effect of the will of the
testator, who died in 1936, was to
divide his farm into three parts at the
end of a ten-year trust period pro-
vided for in the will. As residuary
legatee the testator's widow became
entitled to the 40 acres north of the
road, while the portion south of the
road was divided between his two
sons, the Plaintiff and the Defendant,
respectively. The widow was given in
addition a right of residence and
support on whichever portion of the
sons' divisions she should choose at
the end of the trust period.
The ten-year trust provided for the
working of the farm as a unit by the
Defendant, as manager under the
direction of the trustees and for the
lodging of all profits, derived from the
working of the farm, in a bank
account in the joint names of the
widow and the Defendant. The terms
of the will were carried out for the
period of the trust. After the expira-
tion of this period, the Plaintiff trans-
ferred his division of the lands to the
Defendant by a transfer which
became effective in 1954. In that
year also the joint account came to
an end and since then and up to the
commencement of this action, the
Defendant farmed all the lands as the
apparent owner. From the death of
the testator, the widow continued to
reside in the family home which was
on the Defendant's divide. She was
provided for and maintained thereon
by the Defendant until 1968 when
she went to a home where she died in
March, 1971.
By her will the widow appointed
the Plaintiff her executor and sole
residuary devisee and legatee. As
such, the Plaintiff's claim was that
the lands north of the Loughrea-
Kilchreest road (40 acres) are his
property and he seeks to recover
them from the Defendant. The
Defendant claimed that he had
acquired title to these lands and that
the Plaintiff's claim was barred by
the Statute of Limitations 1957, in
particular Section 13(2) and Section
18(1).
Section 13(2) of the Statute of
Limitations provides:
"The following provisions shall
apply to an action by a person
(other than a state authority) to
recover land.
(a) No such action shall be
brought after the expiration of
twelve years from the date on
which the right of action accrued
to the person bringing it or, if it
first accrued to some person
through whom he claims, to that
person."
Section 18(1) provides:
"No right of action to recover
land shall be deemed to accrue
unless the land is in the pos-
session (in this section referred to
as adverse possession) of some
person in whose favour the
period of limitation can run."
Held
(per Kenny J.) in dismissing
the Plaintiff's appeal and upholding
the decision of the High Court, that
(i) The ignorance of the widow and
of the Defendant that the lands north
of the road belonged to her did not
prevent the Statute of Limitations
1957 applying and did not prevent
the Defendant's being in adverse pos-
session of these lands. In Wylie's
Irish Land Law at p. 857 it was
stated: "It is also established that the
adverse possession may take place
without either party being aware of
it".
(ii) The Defendant had as a matter
of fact been in adverse possession of
the lands since 1954 and the Plain-
tiff's claim to the lands north of the
roads was therefore statute-barred.
Thomas
Murphy
v.
Laurence
Murphy — Supreme Court (per
Kenny J., with concurring judgment
by O'Higgins CJ., and Parke J.) —
25 July 1979 — Unreported.
RULES OF CERTIORARI
"Audi Alteram Parte" ("hear the
other side") properly observed.
The Prosecutor (Duffy) enlisted in the
Irish Navy in 1977 as a petty officer
for a period of four years. Under one
of the regulations under the Defence
Acts 1954 and 1960 the prosecutor
could be discharged if his command-
ing officer directed his discharge for
the stated reason of "not being likely
to become efficient". Some months