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GAZETTE
N O V E M B E R
1978
of an evaluation of facts found or
admitted.
Held:
(1) That in civil cases where
a tribunal of fact, be it judge or jury,
has decided a question of specific fact
the resolution of which depended
wholly or in substantial measure on
the choice of one version of
controverted oral testimony as
against another, a court of appeal,
which is dependant on a written
record of the oral evidence given at
the trial, will not normally reject that
finding merely because an alternative
version of the oral testimony seems
now acceptable. It is only when, on
taking a conspectus of the evidence
as a whole, oral and otherwise, it
appears to the Appellate Court that,
notwithstanding the advantages
which the tribunal of fact had in
seeing and hearing the witnesses, the
version of the evidence that was acted
on could not reasonably be correct,
that the Appellate Court will set aside
the finding of fact based on it.
(2) That on the other hand, if the
question of fact that was answered in
die trial court does not depend on a
choice of alternatives arising out of
divergent oral testimony but amounts
to a conclusion in the nature of an
evaluation of proved or admitted
facts, the Appellate Court will
consider itself free to rely on its own
judgment as to whether the
evaluation made by the tribunal of
fact is correct or not on the ground
that its competence to evaluate the
fact in question is no less than that of
the tribunal of fact, because the
evidential data for the answer to the
question will essentially be the same
in both courts.
(3) That the finding of fraud by the
trial judge would stand, but Henchy,
Griffin & Parke, J J . held further that
the judgment of the trial judge
ordering recission of all consequent
transactions between the Plaintiffs
and the Defendants could not stand
because the Plaintiffs were not
principals but only agents and an
order for recission which would
require the Plaintiffs to step into the
shoes of the Defendants and take
over the ownership of the property
bought, which the Plaintiffs had
never owned, would be incompatible
with the mutuality and fairness
inherent in the concept of restoring
the status quo ante.
(4) That the Defendants' remedy
for the fraudulent misrepresentations
of the Plaintiffs lay in damages for
the tort of deceit and the Supreme
Court remitted the case to the High
Court for assessment of such
damages, and in doing so indicated
certain bases for such assessment.
Northern Bank Finance Corporation
Limited v. Gerard Charleton, Hugh
Charleton and Gerard Sheehy —
Supreme Court (Henchy, Griffin and
Parke, J.J. with partial dissent from
O'Higgins CJ . with Butler J.) — 21
July, 1978 — unreported.
SALE OF LAND
Refusal of Land Commission
Consent — Prospective Purchaser
has no standing to object to vesting
of lands In Land Commission.
The lands in Folio 29878 Co.
Roscommon were put up for sale by
auction in two lots. The conditions of
sale provided that the sale of both
lots was to be subject to the consent
of the Land Commission. This
provision was inserted in the
conditions of sale because some days
before the auction the Land
Commission had served a notice of
inspection, pursuant to Section 40(6)
of the Land Act 1923, as amended,
which gave the vendor a warning that
the lands on the folio had been
e a rma r k ed f or c omp u l s o ry
acquisition. Lot 1 was knocked down
to one M.H. and in the event the sale
to him went through because the
Land Commission gave their
consent.
Lot 2 was knocked down to the
Prosecutor (Callaghan), but the Land
Commission withheld consent and
published a provisional list, in
consequence of which those lands
would become vested in the Land
Commission on the appointed day
unless excluded in consequence of a
valid objection. The owner of the
Folio made no such objection. The
Prosecutor was the only person who
sought to enter an objection, which
the Land Commission refused to
entertain on the grounds that he had
no standing to make it. He obtained
a conditional Order of Mandamus
requiring the Land Commission to
cause his objection to be listed for
h e a r i ng
b e f o r e t he
Lay
Commissioners. The President of the
High Court (Finlay P.) declined to
make the order absolute on the
grounds that the Prosecutor had no
standing.
Held
(Henchy J.) that when the
Prosecutor signed the contract for the
purchase of Lot 2 he did so on the
express condition that if the consent
of the Land Commission was not
forthcoming "the sale and this
contract shall be at an end as if these
presents were not entered into"; he
therefore became only a conditional
or , contingent purchaser. The
condition precedent to his becoming
a purchaser with the benefit of an
enforceable contract was the consent
of the Land Commission. Once that
consent failed to materialise his
position in law, to borrow the words
of the contract was "as if these
presents were not entered into". The
statutory scheme of acquisition
implied that an objector must have
some special legal relationship with
the lands which would be prejudiced
if the acquisition went through. The
Prosecutor failed to show the
existence of such a relationship.
The State (Callaghan) v. Irish Land
Commission — Supreme Court (per
Henchy J., with Kenny and Parke
J J.) — 15 November, 1978 —
unreported.
Summaries of judgments prepared
by John Buckley, Daniel Brilley,
John M. O'Connor, Michael Staines,
and edited by Michael V. O'Mahony.