The Gazette 1983

GAZETTE

NOVEMBER 1983

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.

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

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

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

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