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spurious votes, and votes of unqualified persons, which
may lead to an unqualified return.
The American cases indicate that the expressions
"secret ballot" and "ballot" as used in the State Consti-
tutions refer to a secret method of voting, as opposed to
the former open or
viva voce
voting: they merely
emphasise that the secrecy must continue to be pro-
tected even after the actual casting of the vote.
[McMahon v Attorney-General; Supreme Court;
4th October 1971.]
INJUNCTION AGAINST
BUILDING OPERATIONS
(An Application by Plaintiff that he had
Acquired Plot by Adverse Possession, Granted)
Application for an injunction restraining the defen-
dants from carrying out building operations at the rere
of Kennelsfort Road, Palmerstown, Co. Dublin, and an
application that plaintiff had acquired by adverse
possession under the Statute of Limitations a title to
the plot of ground at the rere of the premises. An
interim injunction had been granted on 8th December
1970. By divers assignments, Irish Life Assurance had
ultimately acquired the lands compriesed in Folio 539,
Co. Dublin.
When the plaintiff's house was built, there was a
roadway at the rere of it giving access to the garage.
Beside this roadway was a plot of ground which was
not built on. The plaintiff understood, when his house
was built, that his garden would include this plot, but
it was now separated from it by a roadway. The plain-
tiff nevertheless used this plot as if it were part of his
garden. Since November 1955 the plaintiff had used this
plot without paying rent. In October 1970 Irish Life
assigned to the defendants the plot of ground con-
cerned. There was a correspondence between the plain-
tiff's solicitor and the defendant's solicitor in Nov. 1970
and it finally transpired that the defendants, claiming
they were the owners of the fee simple, stated that they
proposed to enter upon the lands on 7th December 1970.
On that date the defendants had no title to the lands,
as the registration of their freehold was not completed
until 17th December 1970. The defendants took a paper
title from Irish Life to a leasehold interest for which
they had no claim. Their acquisition of the freehold
was subsequent to their purported acquisition of the
leasehold interest. It seems clear that, unless the fee
simple owners become entitled to the whole of the lands
comprised in the lease in fee simple, and also to the
lessee's interest in the whole of the same land, no mer-
ger can take place. Here Irish Life could not assign to
the defendants effectively a leasehold interest in lands,
the title to which they themselves had lost. The plaintiff
is consequently entitled to possession of the said plot.
[Perry v Woodfarm Homse Ltd.; O'Keeffe P.; unre-
ported; 30th July 1971.]
NEGLIGENCE/CONTRIBUTORY NEGLIGENCE
The plaintiff while driving a moped collided with the
defendant's motor car which emerged from a minor
road into a major road. The plaintiff was not wearing
a crash helmet.
The Court of Appeal held that the plaintiff ought
reasonably to have foreseen the possibility of his being
involved in an accident even though he himself drove
with the greatest care. While the wearing of a crash
helmet would not have prevented or diminished the
risk of the collision occurring it would probably have
reduced the gravity of his head injuries. Thus while the
defendant was solely responsible for the accident the
plaintiff's negligence in failing to wear a crash halmet
was relevant to the additional injuries and damage
which would not have occurred if a crash helmet had
been worn. Accordingly the plaintiff's responsibility
was 15 per cent of the whole.
[O'Connell v Jackson; 115 S.J. 742]
CONDITIONAL ORDER FOR MANDAMUS
AGAINST CO. COUNCIL MADE ABSOLUTE
Application to make absolute a conditional order of
mandamus
granted by the Supreme Court on 7th Nov.
1970 requiring the respondent County Council to con-
sider and determine in accordance with law an appli-
cation made to them on 6th February 1970 for their
consent to the transfer from the prosecutrix to one
James Conway of the plot of ground comprised in
Folio 50107 County Cork, where the prosecutrix is
named as registered full owner.
The prosecutrix is the tenant purchaser of a labourer's
cottage and plot of land. By agreement dated 15th
April 1969 she agreed to sell to James Conway for £590
the said plot of ground, excluding the labourer's cot-
tage. This sale was to be completed after the approval
by the County Council of the assignment to the pur-
chaser within fourteen days. The draft transfer was sent
to the County Council for approval with a local registry
map on 6th February 1970 : this should be regarded as
a request for consent for sub-division. The County
Council, in reply purported to specify the exact location
of this plot. In reply, the solicitor for the prosecutrix
wished to get an assurance that Section 98 of the
Housing Act, 1966, had been complied with. The soli-
citor to the County Council, instead of replying cour-
teously to this request curtly stated that he would accept
service of any proceedings.
The unreported Supreme Court decision
McGeough
v Louth County Council,
1st March 1956, established
that a tenant purchaser of a labourer's cottage has a
right to a fair and unbiased consideration of any appli-
cation for consent to sell, and a consent should not be
refused unless the sale would in some way frustrate the
policy of the Act.
Butler J., who had not been made aware of this deci-
sion, refused a conditional order of
mandamus
against
the County Council, but the Supreme Court, following
McGeough's decision, held that this conditional order
should be granted. Section 98 of the Housing Act, 1966,
deals with the condition under which the housing auth-
ority may grant consent, and in particular the housing
authority must apportion the annuity in the case of an
application for sub-division was too low, as he had
obtained a valuation for £1,400 : he tried to insist on a
larger price. Under Section 99 of the Housing Act, 1966,
the annuity could be redeemed with the consent of the
County Council; the redemption price should not have
exceeded £13, yet the County Council endeavoured to
obtain hundreds of pounds. It is obvious that the Co.
Council did not consider the request in accordance with
law, but introduced into the matter extraneous consid-
erations. The application to make the conditional order
of
mandamus
absolute was accordingly granted.
[The State (Meade) v Cork County Council;
O'Keeffe P.; unreported; May 1971.]
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