395 / 406
GAZETTE
JULY/AUGUST 1985
the Court to be repugnant to the
Constitution under Article 15 is retro-
spective and that it was a finding or
declaration that the statute concerned
from the date on which it was signed by
the President was in so far as its invalidity
arose from requgnancy to the Constitu- •
tion null and void and of no effect. It was
accordingly submitted on the claimant's
behalf that it would be wholly
inconsistent with the retrospective effect
of the decision with regard to the
invalidity of parts of the Rent Act of 1960
that any determination of the rights of
any person including in particular of the
claimant in this case should be
approached on the basis that the
provisions of that Act were ever
operative.
Ha v i ng c o n s i d e r ed these
two
conflicting submissions the Court
reached the following conclusions.
The majority decisions of the Supreme
Court in the second issue arising in
Murphy
-v-
The Attorney General
were
delivered by Henchy J., Griffin J., and
Kenny J., Parke J. agreeing with the
judgments of Henchy J. and Griffin J. the
question which is relevant to the issues in
this case of the extent and nature of the
retrospective invalidity of a statute was in
particular dealt with in the judgments of
Henchy J., and Griffin J. Henchy J. at
page 321 stated as follows:—
"For example, the United States
Supreme Court unencumbered as it is
by any constitutional imperative such
as is contained in Article 50 or Article
15, s.4, sub-s. 1 of our Constitution
has varied in its rulings as to whether
its condemnation of a statute as
unconstitutional should be given
effect to prospectively only or with
s ome degree of r e t r o a c t i v i t y.
However, even in cases where the
statute has been declared to have been
invalid
ab initio
(as is the position in
the present case), it has come to
recognise that legal transactions that
took place under the void statute did
not necessarily suffer retrospective
invalidity with the fall of the statute.
The difficulty if not impossibility of
laying down a general rule on the
matter was dealt with by Hughes C.J.
in delivering the opinion of the Court
in
Chicot County Draining District
-v-
Baxter State Bank (no citation given) at
page 374 of the report."
Dealing with the same topic at page 331
of the report Griffin J. stated as
follows:—
"When a statute has been declared to
be void
ab initio
it does not necessarily
follow that what was done under and
in pursuance of the condemned law
will give to a person who has in
consequence suffered loss, a good
cause of action in respect thereof.
Notwithstanding the invalidity of the
statute under which such act was
done, the Courts recognise the reality
of the situation which arises in such
cases, and that it may not be possible
to undo what was done under the
invalid statute as it was put so
distinctly during the argument, "the
egg cannot be unscrambled". In
regard to this aspect of the case and
the Plaintiffs right to recover the sums
collected from them in excess of those
which should properly have been
collected from them if their incomes
had not been aggregated, I have had
the advantage of reading in advance
the Judgment of Mr. Justice Henchy
and I agree with his conclusions and
the reasons which he has stated
therefor."
In this case if the Court was to hold that
the Arbitrator was obliged to value the
claimant's properties as of 11 march,
1977 on the basis that parts II and IV of
the Rent Act of 1960 did not apply to
them, it would be determing as a matter
of law that he should find as a fact
something which was palpably untrue.
The Court had to assume that the
purpose of the provisions of section 84 of
the Housing Act 1966 which provide for
the valuation date as being the date of the
Notice to Treat is on the one hand to
ensure that an acquiring Authority could
at the time it sought confirmation of a
Compulsory Purchase Order make a
reasonable estimate of the probable cost
of acquiring the entire of the lands
concerned and secondly, for the purpose
of ensuring that a person from whom the
lands had been acquired and who might
have to await for some significant period
the actual determination and payment of
compensation would not suffer the risk
that outside adventitious market
conditions would reduce the value of
what was being taken from them.
It would appear, therefore, that the
justice and equity of the case would not be
served by providing for an artificial
assessment of the value of the lands which
was a price which the claimant could not
on the facts as found here have expected to
obtain had she offered them for sale on
the open market on the date of the Notice
to Treat.
Having considered the additional
submission made on the claimant's behalf
that the obligation of a Court was to
protect the citizen against any invasion of
his constitutional rights and in the case of
such invasion to make good the loss or
damage caused the Court was entitled to
answer the question raised in the case
stated in the affirmative. Here the
claimant was not coming to the Court
seeking from any party who has operated
or availed of the provisions of the
impugned legislation relief by way of
repayment or otherwise for sums
wrongfully withheld, but was seeking to
operate a statutory machinery for the
assessment of the value of her lands at a
particular time and in a particular
manner. It was not open to the Arbitrator
to award her any form of damages or
compensation for the consequence of the
enactment of the Rent Restrictions Act of
1960.
For these reasons the question raised in
the case stated should in the sense in
which it was raised be answered in the
affirmative. For reasons of precision,
however, and having regard to the
principles which led to that conclusion
the Court preferred the question to be
answered in the following form:—
"The Arbitrator ought to value the
claimant's interest in the relevant
premises on the valuation date on the
assumption that the willing seller,
prospective purchasers, and the
persons advising them would have
assumed that part II and part IV of the
Rent Restrictions Act, 1960 was a
valid statutory provision affecting the
premises."
Ellen Read
-v-
Limerick Corporation -
High Court (per Finlay J.) - unreported- 5
March 1984.
Daniel Brilley
Copies of judgments in the above
cases are available on request from
the Society's Library. The photo-
copying rate is lOp per page.
xxiv