The Gazette 1978

GAZETTE

N O V E M B E R

1978

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.

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

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