249 / 270
GAZETTE
JULY-AUGUST
1980
is not there and then 'charged', that is
to say, accused 'before' that
Court.Inmy view this is the true meaning and
effect of the words in question. Their
purpose was to ensure that the person
concerned would appear in court
accused publicly of an offence — a
right which he would otherwise have
had under Section 15 of the Courts
of Justice Act 1951 had he not been
in detention".
Conditional order of Certiorari
refused.
The State (Jeremiah Walsh) v.
District Justice Cyril Maguire —
Supreme Court (per Henchy J., with
concurring
judgments
from
O'Higgins C.J. and Griffin J.) - 14
February, 1979 — unreported.
SALE OF LAND
Land sold subject to right to re-
acquire part in certain specified
circumstances. Right to re-acquire
upheld on subsequent resale of land
to purchaser with prior notice of that
right, even though that right was by
then assigned to another party.
Mr. Hayes the owner of lands at
Crosshaven by contract dated 7
December 1972 agreed to sell a
property called Crosshaven House
and 15 acres to Mr. Flint (the first
Defendant) subject to the right of Mr.
Hayes or the actual developer of
retained adjoining lands to re-acquire
part of the sold property if it was
necessary for planning purposes to
demolish the building on that portion
specified to be re-acquired. The
relevant part of the special condition
of the said contract provided that
" . . . the vendor and the purchaser
have agreed that the vendor may re-
acquire the premises coloured blue on
the map if it is not reasonably
practicable for him or the actual
developer of the said adjoining land
to carry out the development without
demolishing the said (House" . . .
"whether for the purpose of erecting
a roadway thereon or for the purpose
of allowing a reasonable line of vision
for an adjoining road at its junction
with the existing (road)". The
conveyance to Mr. Flint was
completed on 8 October, 1973.
Mr. Hayes contracted to sell 70
acres of the retained adjoining lands
to Mr. Dovey and this was completed
by conveyance dated 5th July 1974.
Mr. Dovey subsequently conveyed
these lands to Troika Limited
("Troika") but remained a director of
that company. On the 31st December
1974 Mr. Hayes assigned the right to
re-acquire, to which Mr. Flint's land
was subject, to Troika.
By agreement in 1974 Mr. Flint
agreed to sell his land to Mr. O'Hara
(the
Plaintiff) subject to
the
aforementioned right to re-acquire
Troika and its related company,
Hamburg Investment Company (the
Third Defendant), began proceedings
for specific performance requiring
Mr. Flint to convey to them the
necessary lands. By Consent Order
of the High Court on 1 July 1975
Mr. Flint was restrained from selling
the lands the subject of the right to re-
acquire ("the reserved lands") until he
conveyed them to Troika and the
High Court declared that the
agreement of 7 December 1972 in so
far as it related to the reserved lands
ought to be specifically performed.
On 18 July 1979 the reserved lands
were conveyed to Troika by Mr.
Flint. Mr. O'Hara on hearing that
Troika
intended
demolishing
buildings on the re-acquired lands
issued
injunction
proceedings,
restraining Mr. Flint and Troika from
such demolition. Mr. O'Hara's action
was dismissed by the High Court
(McWilliam J.) and Mr. O'Hara
appealed to the Supreme Court.
Held
(per Kenny J.) that Mr.
O'Hara had entered into his contract
with Mr. Flint with full notice of the
prior agreement of 7 December 1972
between Mr. Hayes and Mr. Flint,
and of the special condition (above
quoted) in that agreement; and that,
furthermore, Mr. O'Hara's claim
under his contract in 1974 was later
in point of time to Troika's right
arising under the agreement of 7
December 1972 and this right of
Troika was perfected by the
conveyance to Troika of the reserved
lands by the conveyance of 18 July
1975. Accordingly the Appeal of Mr.
O'Hara was dismissed.
Note:
In the early part of his
judgment Kenny J. said:
"The solution of the problems in
this case is not made easier by the
bad and confused drafting of the
special conditions and by the fact
that though the lands are referred to
by reference to a map which has a
number of colours on it, the copies of
the maps furnished to us are
photostat only and do not show any
colours. I trust for the future that
solicitors will remember that, when
preparing books of appeal for this
Court, photostat copies of plans with
colours on them are worthless".
O'Hara v. Flint, Troika Limited and
Hamburg Investment Company —
Supreme Court, (per Kenny J. with
Griffin and Parke JJ.) - 31 July
1979 - Unreported.
TRADE MARKS
Additional evidence from applicant/appellant
not admissible In High Court on appeal from
Controller of Patents, Designs and Trade
Marks ("the Controller") under Section 25 of
the Trade Marks Act 1963 ("the Act of
1963")- The High Court in such proceedings
is an appellate Court only and not a Court of
first instance.
This was an appeal to the Supreme Court by
the Controller following the decision of the
trial judge in the High Court to allow an
appeal against the decision of the Controller.
The appeal to the High Court by the
applicant pursuant to Section 57 of the Act of
1963 had been from a decision of the
Controller who had not been satisfied that the
applicant intended to use the trade mark
("Arby's") in the State as no sufficient
evidence of user had been offered by the
applicant and, as a result, the application had
been refused pursuant to Sections 2 and 25 of
the Act of 1963. In the High Court, the trial
judge (Hamilton J.) also had not been satisfied
on the materials before him that the applicant
intended to use the trade mark in the State
and he adjourned the hearing to allow the
applicant to file a further affidavit. An
affidavit by a Mr. Smaltz had then been filed
and subsequently on the resumption of the
hearing the trial judge had allowed the
applicant's appeal against the Controller's
decision.
"Trade Mark" is defined in Section 2 of
the Act of 1963 as meaning "a mark used or
proposed to be used in relation to goods for
the purpose of indicating, or so as to indicate,
a connection in the course of trade between
the goods and some person having the right
either as proprietor or as registered user to
use the mark". Section 25(1) of the Act of
1963 provides that any person claiming to be
the proprietor of a trade mark used or
proposed to be used by him who is desirous of
registering it must apply in writing to the
Controller for registration. Thus, use of the
trade mark or an intention to use it in the
State must be proved before the Controller
may register it.
Section 25(7) of the Act of 1963 provides:
"Appeals under Section 57 of this Act
against decisions of the Controller under
this section shall be heard on the materials
stated as aforesaid by the Controller, and
no further grounds of objection to the
acceptance of the application shall be
allowed
to
be
taken
by
the
Controller,other than those so stated as