Land Reg Priority
Cases
Crumlish v The Registrar of Deeds and Titles
[1990] 2 IR 471, [1991] ILRM 37,
Court: High Court (Ireland)
Judge: Mr. Justice Lynch
CONCLUSIONS ON THE FACTS AND THE LAW
I take the view that Section 19 of the Act does not in itself confer onthe Registrar any powers to make any Orders. The section merely makesancillary provisions for cases where the Registrar has power to makeOrders under other sections of the Act or under rules in the 1972 Rulesfor example under Section 16 to require the attendance of witnessesand/or the production of documents: or Rules 6 and 7 of the Rulesclearing off apparently obsolete entries from folios: or Section 49 ofthe Act registering a possessory title.
Section 30 of the Act is declaratory only and does notconfer any powers as such on the Registrar. Under Section 31 the Courtof competent jurisdiction is empowered to make the appropriate Ordersbut not the Registrar. Section 32 clearly requires the consent of allinterested parties if the Registrar is to make an Order thereunder andin this case the Applicant was clearly an interested party and he didnot give his consent to any such Order as that made by the Registrar onthe 9th of November 1988.
As regards the submissions of Counsel for the Notice Parties in relationto Sections 30 and 31 there is no doubt but that the High Court or theCircuit Court in cases within its jurisdictions might make Ordersconsequential on Section 30 and/or pursuant to Section 31 of the Act butit would be quite inappropriate to make any such Order in proceedingsfor Judicial Review heard only on Affidavit. The appropriate proceedingsin the High Court or the Circuit Court for Orders such as the impugnedOrder of the Registrar of the 9th of November 1988 would be proceedingsby way of plenary hearing between the rival contending parties. Thejurisdiction of the High Court or the Circuit Court in such proceedingsis ample to make whatever Order appears to be just and equitable on thefacts as found by the Court on such plenary hearing.
I am satisfied that the Registrar’s Order of the 9th of November 1988was made without jurisdiction and I am also satisfied that theapplication for leave to bring these proceedings by way of JudicialReview was made promptly and in those circumstances it seems to me thatI should make an Order of Certiorari to quash the said Order of theRegistrar and I accordingly do so.
However I want to emphasize most categorically thatthis Order of Certiorari in no way determines the issue as between theApplicant and the Notice Parties as to who is truly entitled to thebeneficial ownership of the plot of ground in question and thereforeentitled to be registered as full owner thereof to the exclusion of allothers. I was informed in the course of argument that such proceedingsare in fact pending in the Circuit Court for the County of Donegal and Iwas handed a copy of an equity Civil Bill in which the Applicant isPlaintiff and the Notice Parties are Defendants. This judgment in no waylimits or affects the jurisdiction and powers of that Court to determinethose proceedings or any other appropriate proceedings and to make allsuch Orders as may appear to that Court to be just and equitable.
I therefore Order that the Registrar’s Order of the 9th of November 1988be quashed and that the Register be rectified by restoring the same tothe condition in which it was prior to the Order of the 9th of November1988 or as may otherwise be appropriate in the event of there havingbeen any transactions validly affecting the said plot of ground sincethat date.