The Gazette 1979

GAZETTE

SEPTEMBER 1979

twelfth and eighteenth years of the said term to call for a review of the said yearly rent by giving to the tenant one quarter's notice in writing of such desire if the Landlord considers the fair rental value of the demised premises has increased". The sixth year of the term ended on 11 February 1976 and on 16 December 1976 the Landlord's (Plaintiff's) solicitors wrote to the Tenant (Defendant) seeking an increase in the rent as from 11 May 1977. This was refused and the issues which came to the Court were: (1) Whether a time was fixed for the service of a notice, and, if so, (2) whether that time was of the essence of the contract. Held (per McWilliam J. ) — having reviewed the English cases of Samuel Properties (Developments) Ltd. v. Hayek [1972] IW.L.R. 1296; Kenilworth Industrial Sites Ltd. v. E. C. Utile & Co. Ltd. [1975] IW.L.R. 143; Accuba Ltd. v. Allied Shoe Repairs Ltd. [1975] IW.L.R. 1559; and United Scientific Holdings Ltd. v. Burnley Borough Council [1977] 2 W.L.R. 806 — that as no time was specified for initiating the procedure, this indicated that the parties were concerned about the periods for which, and the methods by which, rent should be increased but were not greatly concerned about the time at which the procedure should be instituted. Held further that there was no indication that any particular time for initiating the procedure was intended to be of the essence of the contract. As the Defendant had not been prejudiced by the delay in having the rent fixed the Landlord was entitled to have it fixed now as it would have been fixed at the end of the sixth year. There was no issue in this case (unlike the United Scientific Holdings case) as to the time from which the new rent should be payable as the parties had agreed that it should be payable from May 1977. By Limited v. I.C.R. Ltd.-High Court (McWilliam J) — unreported — 3 April 1979. LAW OF PROPERTY Adverse possession may arise with- out either party (i.e. the party entitled to the property or the party in whose favour the Statute of Limitations

1957 operates to vest the interest in the property) being aware of it. In 1920, a testator bought a farm of 153 acres of freehold lands. This farm lay north and south of the Loughrea-Kilchreest road in County Galway. The portion north of the road contained 40 acres and the por- tion south of the road contained 113 acres. The effect of the will of the testator, who died in 1936, was to divide his farm into three parts at the end of a ten-year trust period pro- vided for in the will. As residuary legatee the testator's widow became entitled to the 40 acres north of the road, while the portion south of the road was divided between his two sons, the Plaintiff and the Defendant, respectively. The widow was given in addition a right of residence and support on whichever portion of the sons' divisions she should choose at the end of the trust period. The ten-year trust provided for the working of the farm as a unit by the Defendant, as manager under the direction of the trustees and for the lodging of all profits, derived from the working of the farm, in a bank account in the joint names of the widow and the Defendant. The terms of the will were carried out for the period of the trust. After the expira- tion of this period, the Plaintiff trans- ferred his division of the lands to the Defendant by a transfer which became effective in 1954. In that year also the joint account came to an end and since then and up to the commencement of this action, the Defendant farmed all the lands as the apparent owner. From the death of the testator, the widow continued to reside in the family home which was on the Defendant's divide. She was provided for and maintained thereon by the Defendant until 1968 when she went to a home where she died in March, 1971. By her will the widow appointed the Plaintiff her executor and sole residuary devisee and legatee. As such, the Plaintiff's claim was that the lands north of the Loughrea- Kilchreest road (40 acres) are his property and he seeks to recover them from the Defendant. The Defendant claimed that he had acquired title to these lands and that the Plaintiff's claim was barred by the Statute of Limitations 1957, in particular Section 13(2) and Section 18(1).

Section 13(2) of the Statute of Limitations provides: "The following provisions shall apply to an action by a person (other than a state authority) to recover land. (a) No such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person." Section 18(1) provides: "No right of action to recover land shall be deemed to accrue unless the land is in the pos- session (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run." Held (per Kenny J.) in dismissing the Plaintiff's appeal and upholding the decision of the High Court, that (i) The ignorance of the widow and of the Defendant that the lands north of the road belonged to her did not prevent the Statute of Limitations 1957 applying and did not prevent the Defendant's being in adverse pos- session of these lands. In Wylie's Irish Land Law at p. 857 it was stated: "It is also established that the adverse possession may take place without either party being aware of it". (ii) The Defendant had as a matter of fact been in adverse possession of the lands since 1954 and the Plain- tiff's claim to the lands north of the roads was therefore statute-barred. Thomas Murphy v. Laurence Murphy — Supreme Court (per Kenny J., with concurring judgment by O'Higgins CJ., and Parke J.) — 25 July 1979 — Unreported. RULES OF CERTIORARI "Audi Alteram Parte" ("hear the other side") properly observed. The Prosecutor (Duffy) enlisted in the Irish Navy in 1977 as a petty officer for a period of four years. Under one of the regulations under the Defence Acts 1954 and 1960 the prosecutor could be discharged if his command- ing officer directed his discharge for the stated reason of "not being likely to become efficient". Some months