The Gazette 1983

GAZETTE

NOVEMBER 1983

Recent

Irish

Cases

Constitution — Article 34 — Legislative

Interference with Judicial Power — Distri-

bution of Powers — Statute Validity —

Street and House to House Collections

Act, 1962 — Section 13 (4) — Certiorari.

The Prosecutor on behalf of the North

Cork Branch of the H Block Armagh

Committee applied on 12 March, 1981

under the Street and House to House

Collections Act 1962 for a permit to hold

a collection in aid of the H Block

Campaign. On 18 March, 1983 this

Application was refused under Section

9(b). The Prosecutor appealed the

decision to the District Court under the

terms of the Act. At the hearing of the

appeal the prosecutor gave evidence

seeking to rebut the opinion expressed by

the Chief Superintendent to the effect

that the proceeds of the collection would

be used wholly or in part "(a) for the

benefit of an object which was unlawful

or contrary to public morality or for the

benefit of an organisation, membership of

which is unlawful, or (b) in such a manner

as to encourage either directly^ or

indirectly the commission of an unlawful

act". Two other witnesses called on

behalf of the prosecutor also gave similar

evidence. The Chief Superintendent in

question and another witness gave

evidence in support of the Chief Superin-

tendent's opinion that the collection

would be for a purpose excluded under

Section 9(b). The District Juctice averted

to Section 13(4) which provides "without

prejudice to the jurisdiction of the

District Court to disallow on other

grounds an appeal under this Section, an

appeal under this Section shall be

disallowed, if, on the hearing thereof, a

member of the Garda Siochana not below

the rank of Inspector states on Oath that

he has reasonable grounds for believing

that the proceeds or any portion of the

proceeds of the collection, to which the

collection permit the subject of such

appeal relates, will be used . . . . (for an

unlawful purpose)".

The District Justice having heard the

evidence of the Chief Superintendent

stated he had no alternative but to

disallow the appeal. The effect of the

procedure followed was that the District

Justice did not purport to make any

adjudication upon the merits of the case

nor did he indicate what, if any, opinion

he had formed upon the facts as given

in evidence before him by the Prosecutor

and his Witnesses and by the Chief

Superintendent and his Witness. He

stated his reason for disallowing the

appeal was that he was obliged to do so by

the Sub-section in question. The

Prosecutor was granted a conditional

Order of Certiorari in the High Court

and claimed that the procedure set out

under the Act was an invasion of judicial

power and therefore unconstitutional.

Cause was shown and the High Court

ruled that Section 13(4) was not invalid

having regard to the provisions of the

Constitution on the grounds that the

procedure set forth in the Act was simply

to limit the appellate jurisdiction of the

District Court rather than an interference

with the exercise of the jurisdiction of the

said Court. On appeal to the Supreme

Court it was:—

HELD

1. A challenge to the constitutionality

of provisions of an Act of the

Oireachtais may be raised on an

application of Certiorari.

2. The effect of the sub-section is that

notwithstanding lodging the appeal

and the commencement of the

hearing of the appeal a District

Justice is compelled, if evidence of a

certain opinion is given, to disallow

the appeal and all discretion to do

otherwise is removed.

3. Where the effect of a statutory

provision is that the dispute is

determined by the Oireachtas and

not by the Court and where the

Court is required or directed by the

O i r e a c h t as to d i sm i ss the

Appellent's appeal without forming

any opinion as to the rights of the

respective parties the provision is

clearly invalid having regard to the

provisions of the constitution.

Buckley and Others

-v-

The Attorney

General and Others

[1950] I.R.

Applied,

Maher

-v-

The Attorney

General

[1973] I.R. Applied,

The

State

-v-

O'Rourke

(District Justice

Kelly) Supreme Court, 28 July 1980

(unreported) explained.

4. Section 13(4) of the Street House to

House Collections Act, 1962 is

invalid having regard to the

provisions of the Constitution and

the order of the District Justice must

be quashed.

The State (at the Prosecution of Michael

McEldowney

-v- District

Justice

Humphrey Kelleher and The Attorney

General) - Supreme Court (per Walsh, J.

Nem. Diss.) 26 July 1983 - Unreported.

Eugene F. O'Sullivan

XXXVII

FAMILY HOME PROTECTION ACT,

1976

In February, 1978, the Defendant agreed

to purchase a dwellinghouse at Jordans-

town, Co. Meath. The purchase was

subsequently taken in the name of P. J.

Carrigan Ltd., a company incorporated

on 21 July 1978, whose directors were, in

November 1978, the Defendants' brother

and sister-in-law Owen and Kathleen

Carrigan. A special resolution of the

company was passed on 24 November

1978 to include in the Objects Clause a

provision entitling it to purchase lands

and premises including dwellinghouses

for the use of the Directors, Officers or

Employees of the company. Owen and

Kathleen Carrigan were described in the

Resolution as holders of all the shares

then issued.

The Defendant gave evidence that the

purchase price of the house was in the

region of £25,000/£26,000 of which

£5,000/£6,000 was provided by Owen

Carrigan and the balance of £20,000 by

way of a mortgage to the Lombard &

Ulster Bank. The company was registered

as owner of the house in the Land

Registry on 5 May 1979, the Mortgage

being registered as a charge on the folio.

A fire insurance proposal was made in

the name of P. J. Carrigan and a policy

issued in the name of P. J. Carrigan &

Ors., the interest of the Lombard & Ulster

Bank being noted on the policy. The

house was used as a family home by the

Plaintiff and Defendant from the time of

purchase to March 1979 when the

Plaintiff left claiming that the Defendant

had made it impossible for her to

continue to live with him. The house was

destroyed by fire on 22 May 1981.

In proceedings brought by the Plaintiff

she claimed

inter alia:—

(1) a declaration that the house consti-

tuted a Family Home within the

meaning of the Family Home

Protection Act, 1976;

(2) that the Defendant should be

restrained from disposing of the

property by way of a sale or

mortgage or otherwise; and

(3) a declaration that she was entitled to

the entire beneficial interest in the

property.

Subsequently the Plaintiff caused a

lis

pendens

to be registered against the

property and also a notice pursuant to

Section 12 (1) of the Family Home

Protection Act.

The Lombard & Ulster Banking

Company which had obtained an order

for possession against the lands had been

unable to exercise the power of sale it

claimed to possess and the Defendant

applied to the Court to deal with the

above claims.

The Court was satisfied that the

Plaintiff had made no financial contribu-

tion to the purchase of the house either in

respect of the deposit or in contributing

to the payment of the mortgage liability